EXHIBIT 99(e)
[FOR 757'S AND 747'S]
================================================================================
PURCHASE AGREEMENT ASSIGNMENT
[NW ____ __]
DATED AS OF ________ __,_____
BETWEEN
NORTHWEST AIRLINES, INC.,
ASSIGNOR
AND
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
ASSIGNEE
------------------
ONE BOEING [757-351] [747-451]
AIRCRAFT
================================================================================
PURCHASE AGREEMENT ASSIGNMENT
[NW _____ _]
This PURCHASE AGREEMENT ASSIGNMENT [NW _____ _], dated as of
[______________] between NORTHWEST AIRLINES, INC., a Minnesota corporation
("ASSIGNOR"), and XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner Trustee ("ASSIGNEE") (the "ASSIGNMENT").
W I T N E S S E T H:
WHEREAS, pursuant to the Purchase Agreement, the Manufacturer
has agreed to sell and Assignor has agreed to purchase several Boeing [757-351]
[747-451] aircraft, including the Aircraft covered by the Participation
Agreement;
WHEREAS, pursuant to the Participation Agreement, Assignor has
agreed to sell, and Assignee has agreed to purchase, the Aircraft;
WHEREAS, Assignor and Assignee are entering into a Lease
Agreement [NW _____ _], dated as of the date hereof (as the same may hereafter
from time to time be supplemented, amended or modified, the "LEASE"), pursuant
to which the Aircraft will be leased by Assignee to Assignor; and
WHEREAS, Assignor, on the terms and conditions herein and in
the Consent and Agreement of the Manufacturer attached hereto, desires to assign
to Assignee certain of Assignor's rights and interests in and under the Purchase
Agreement relating to the Aircraft, and Assignee desires to accept such
assignment, as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and for other good and valuable consideration, the parties
hereto agree as follows:
1. ASSIGNMENT; RIGHTS RESERVED. Subject to the provisions of
paragraph 3(a) hereof, Assignor does hereby sell, assign, transfer and set over
unto Assignee, except to the extent reserved below, all of Assignor's rights and
interests in and to the Purchase Agreement, as and to the extent that the same
relate to the Aircraft and the operation thereof, including, without limitation,
(a) all claims for damages in respect of the Aircraft arising as a result of any
default by the Manufacturer under the Purchase Agreement, including, without
limitation, all warranty, service life policy, aircraft performance guarantee
and indemnity provisions in the Purchase Agreement in respect of the Aircraft
and all claims thereunder and (b) any and all rights of Assignor to compel
performance of the terms of the Purchase Agreement in respect of the Aircraft;
RESERVING TO ASSIGNOR, HOWEVER, (i) all of Assignor's rights and interests in
and to the Purchase Agreement as and to the extent that it relates to any
matters not in respect of the Aircraft, (ii) all of Assignor's rights and
interests under the Purchase Agreement (other than under EXHIBIT B (Product
Assurance Document) thereof), (iii) all of Assignor's rights and interests in or
arising out of any payments or deposits made or to be made by Assignor or
amounts credited or to be credited or paid or to be paid by the Manufacturer to
Assignor in respect of the Aircraft under the Purchase Agreement, (iv) all of
Assignor's rights and interests in and to any Spare Parts General Terms
Agreement and (v) with respect to the Aircraft so long,
-1-
and only so long, as the Manufacturer shall not have received written notice
from the Indenture Trustee or the Owner Trustee (including by mail, courier,
telex, or telecopy thereof from the Indenture Trustee or the Owner Trustee
addressed to the Manufacturer's Vice President - Contracts at X.X. Xxx 0000,
Mail Code 21-34, Xxxxxxx, XX 00000 if by mail; 0000 Xxxxxxxxx Xxx. X.X., X/X
00-00, Xxxxxx, XX 00000, if by courier; 000-000-0000 if by telecopy and 32-9430
(answerback BOEINGREN), if by telex) that an Event of Default under the Lease
has occurred and is continuing or that the Lease has terminated, all rights to
demand, accept and retain all rights in and to property (other than the
Aircraft), data, documents, training and services of any kind which the
Manufacturer is obligated to provide or does provide pursuant to the Purchase
Agreement with respect to the Aircraft.
2. ACCEPTANCE OF ASSIGNMENT. Assignee hereby accepts the
assignment contained in paragraph 1 hereof.
3. RIGHTS OF ASSIGNOR IN ABSENCE OF EVENT OF DEFAULT.
(a) Notwithstanding the foregoing, if and so long as (A) the
Aircraft shall be subject to the Lease and (B) the Manufacturer shall not have
received written notice from the Indenture Trustee or the Owner Trustee
(including by mail, courier, telex, or telecopy thereof from the Indenture
Trustee or the Owner Trustee addressed to the Manufacturer's Vice President -
Contracts at X.X. Xxx 0000, Mail Code 21-34, Xxxxxxx, XX 00000 if by mail; 0000
Xxxxxxxxx Xxx. X.X., X/X 00-00, Xxxxxx, XX 00000, if by courier; 000-000-0000 if
by telecopy and 32-9430 (answerback BOEINGREN), if by telex) that an Event of
Default under the Lease has occurred and is continuing, (1) Assignee authorizes
Assignor, on behalf of but to the exclusion of Assignee, to exercise in
Assignor's own name (i) such rights and powers of the "Buyer" under the Purchase
Agreement and (ii) such rights as Assignee may have with respect to the Aircraft
under any warranty, covenant, representation, service life policy, aircraft
performance guarantee, indemnity or product support agreement of the
Manufacturer or any subcontractor or vendor with respect thereto and, subject to
paragraph 3(c) hereof, to retain any recovery or benefit resulting from the
enforcement of any warranty, covenant, representation, service life policy,
aircraft performance guarantee, indemnity, or product support agreement of the
Manufacturer or any subcontractor or vendor under the Purchase Agreement in
respect of the Aircraft, and (2) Assignee shall, at Assignor's expense,
cooperate with Assignor and take such actions as Assignor reasonably deems
necessary to enable Assignor to enforce such rights and claims.
(b) Effective upon the receipt by the Manufacturer of written
notice from the Indenture Trustee or the Owner Trustee that an Event of Default
under the Lease has occurred and is continuing and thereafter until the
Manufacturer shall have received written notice from the Indenture Trustee or
the Owner Trustee that such Event of Default has been cured or waived: (i) at
Assignee's option, the authorization given to Assignor under paragraph 3(a)
hereof to enforce such rights and claims shall henceforth cease to be effective
and Assignee and its successors and permitted assigns shall, to the exclusion of
Assignor, be entitled to assert and enforce such rights and claims as substitute
party plaintiff or otherwise, and Assignor shall, at the request of Assignee or
its successors or permitted assigns and at Assignor's expense, cooperate with
and take such action as reasonably necessary to enable Assignee and its
successors and permitted assigns to enforce such rights and claims, and
Assignee, if it shall elect to enforce such
-2-
rights or claims, shall use its best efforts to assert and enforce such rights
and claims, and (ii) Assignor will be deemed to have irrevocably constituted
Assignee and its successors and permitted assigns Assignor's true and lawful
attorney (it being acknowledged that such appointment is coupled with an
interest, namely Assignee's rights acquired and to be acquired hereunder) with
full power (in the name of Assignor or otherwise) to ask, require, demand,
receive, settle, compromise, compound and give acquittance for any and all
monies and claims for monies due and to become due under, or arising out of, the
Purchase Agreement in respect of the Aircraft, to the extent that the same have
been assigned by this Assignment, and for such period as Assignee may exercise
rights with respect thereto under this clause (ii), to endorse any checks or
other instruments or orders in connection therewith and to file any claims or
take any action or institute (or, if previously commenced, assume control of)
any proceedings and to obtain any recovery in connection therewith which
Assignee may deem to be necessary or advisable in the premises.
(c) Notwithstanding this Assignment and anything herein to the
contrary, all amounts that the Manufacturer is obligated to pay to Assignor
under the Purchase Agreement with respect to the Aircraft, including, without
limitation, in respect of refunds thereunder or resulting from the enforcement
of any warranty, service life policy, aircraft performance guarantee or
indemnity or product support agreement thereunder or the enforcement or exercise
of any right or power under the Purchase Agreement or hereunder (a "MANUFACTURER
PAYMENT") (excluding, however, from the Manufacturer Payments any amounts the
Manufacturer is obligated to pay to Assignor with respect to the rights reserved
to Assignor in clauses (i) through (v) of paragraph 1 hereof, which shall be
paid to Assignor), will be payable and applicable as follows: so long as the
Aircraft is subject to the Lease, all the Manufacturer Payments shall be paid to
Assignor unless and until the Manufacturer shall have received written notice
from the Indenture Trustee or the Owner Trustee that an Event of Default under
the Lease has occurred and is continuing, whereupon the Manufacturer will, until
the Manufacturer shall have received written notice from the Indenture Trustee
or the Owner Trustee that all Events of Default under the Lease have been cured
or waived, make any and all such payments directly to the Indenture Trustee or
(if written notice has been given to the Manufacturer by Assignee that the Trust
Indenture is no longer in effect in accordance with its terms and all amounts
due and payable under the Secured Certificates have been paid in full) Assignee.
Any amounts received by Assignee pursuant to the immediately preceding sentence
shall, to the extent not theretofore applied in satisfaction of sums owing to
Assignee in accordance with the terms of the Lease, be returned to Assignor
promptly after all Events of Default under the Lease have been cured or waived.
(d) For all purposes of this Assignment, the Manufacturer
shall not be deemed to have knowledge of an Event of Default under the Lease or
of the discontinuance or waiver of an Event of Default unless and until the
Manufacturer shall have received written notice thereof from the Owner Trustee
or the Indenture Trustee (including by mail, courier, telex, or telecopy thereof
from the Indenture Trustee or the Owner Trustee addressed to the Manufacturer's
Vice President - Contracts at X.X. Xxx 0000, Mail Code 21-34, Xxxxxxx, XX 00000
if by mail; 0000 Xxxxxxxxx Xxx. X.X., X/X 00-00, Xxxxxx, XX 00000, if by
courier; 000-000-0000 if by telecopy and 32-9430 (answerback BOEINGREN), if by
telex) and, in acting in accordance with the terms and conditions of the
Purchase Agreement and this Assignment, the Manufacturer may rely conclusively
upon any such notice.
-3-
4. CERTAIN RIGHTS AND OBLIGATIONS OF THE PARTIES.
(a) Anything herein contained to the contrary notwithstanding:
(i) Assignor shall at all times remain liable to the Manufacturer under the
Purchase Agreement in respect of the Aircraft to perform all of the duties and
obligations of "Buyer" thereunder to the same extent as if this Assignment had
not been executed; (ii) the exercise by Assignee of any of the rights assigned
hereunder shall not release Assignor from any of its duties or obligations to
the Manufacturer under the Purchase Agreement in respect of the Aircraft except
to the extent that such exercise by Assignee shall constitute performance of
such duties and obligations; and (iii) except as provided in paragraph 4(b)
hereof, Assignee shall not have any obligation or liability under the Purchase
Agreement by reason of, or arising out of, this Assignment or be obligated to
perform any of the obligations or duties of Assignor under the Purchase
Agreement or to make any payment or make any inquiry as to the sufficiency of
any payment received by it or to present or to file any claim or to take any
other action to collect or enforce any claim for any payment assigned hereunder.
(b) Without in any way releasing Assignor from any of its
duties or obligations under the Purchase Agreement, Assignee confirms for the
benefit of the Manufacturer that, insofar as the provisions of the Purchase
Agreement relate to the Aircraft, in exercising any rights under the Purchase
Agreement, or in making any claim with respect to the Aircraft or other things
delivered or to be delivered pursuant to the Purchase Agreement, the terms and
conditions of the Purchase Agreement (including, without limitation, the
warranty disclaimer and indemnity provisions in the product assurance and
customer support documents, EXHIBITS B and C, respectively, to the Purchase
Agreement) shall apply to, and be binding upon, Assignee to the same extent as
Assignor. Assignee hereby confirms that it shall be deemed for all purposes to
have read and be familiar with the Purchase Agreement (insofar as it relates to
the Aircraft) and to understand thoroughly the terms and conditions thereof.
(c) Nothing contained herein shall (i) subject the
Manufacturer to any liability to which it would not otherwise be subject under
the Purchase Agreement or (ii) modify in any respect the Manufacturer's contract
rights thereunder, except as provided in the Consent and Agreement attached
hereto.
(d) The parties hereto agree that all of the statements,
representations, covenants and agreements made by Assignee as Owner Trustee
(when made in such capacity) contained in this Assignment and any agreement
referred to herein or in the Participation Agreement other than the Trust
Agreement, unless expressly otherwise stated, are made and intended only for the
purpose of binding the Trust Estate and establishing the existence of rights and
remedies which can be exercised and enforced against the Trust Estate.
Therefore, anything contained in this Assignment or such other agreements to the
contrary notwithstanding (except for any express provisions that Assignee is
responsible for in its individual capacity), no recourse shall be had with
respect to this Assignment or such other agreements against Assignee in its
individual capacity or against any institution or person which becomes a
successor trustee or co-trustee or any officer, director, trustee, servant or
direct or indirect parent or controlling person or persons of any of them;
PROVIDED, HOWEVER, that this Section 4(d) shall not be construed to prohibit any
action or proceeding against Xxxxx Fargo Bank Northwest, National Association,
for its own willful misconduct or grossly negligent conduct for which it would
otherwise be liable; and
-4-
PROVIDED, FURTHER, that nothing contained in this Section 4(d) shall be
construed to limit the exercise and enforcement in accordance with the terms of
this Assignment or such other agreements of rights and remedies against the
Trust Estate. The foregoing provisions of this Section 4(d) shall survive the
termination of this Assignment and the other Operative Documents.
5. FURTHER ASSURANCES. Assignor agrees that at any time and
from time to time Assignor will promptly and duly execute and deliver any and
all such further instruments and documents and take such further action as
Assignee may reasonably request in writing in order to obtain the full benefits
of this Assignment and of the rights and powers herein granted, PROVIDED,
HOWEVER, that the execution and delivery of any such instrument or document
shall not in any way limit or restrict the rights or enlarge the obligations of
Assignor in respect of any of the Operative Documents.
6. ASSIGNOR'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
Assignor does hereby represent and warrant that Assignor has not assigned or
pledged, and hereby covenants that it will not assign or pledge, so long as this
Assignment shall remain in effect, the whole or any part of the rights hereby
assigned to anyone other than Assignee.
7. NO AMENDMENT OF PURCHASE AGREEMENT. Assignee agrees that,
so long as the Lease is in effect, it will not enter into any amendment,
modification, supplement, rescission, cancellation or termination of the
Purchase Agreement in respect of the Aircraft without the prior written consent
of Assignor.
8. EXECUTION OF ASSIGNMENT. This Assignment is being executed
and delivered by Assignor and Assignee concurrently with the execution and
delivery of the Lease.
9. BINDING EFFECT. This Assignment shall be binding upon and
shall inure to the benefit of Assignor, Assignee and their respective successors
and permitted assigns.
10. GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS ASSIGNMENT IS BEING
DELIVERED IN THE STATE OF NEW YORK.
11. DEFINITIONS. All terms not defined herein, which are used
herein in capitalized form and which are defined in the Lease, shall when used
herein have the meanings specified or referred to in the Lease.
12. NOTICE. Except as otherwise expressly provided herein,
notice hereunder may be given, and shall be deemed to have been received when
given, as provided in Section 17 of the Lease.
13. COUNTERPARTS. This Assignment may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all of such counterparts shall together
constitute but one and the same instrument.
-5-
IN WITNESS WHEREOF, the parties hereto have caused this
Purchase Agreement Assignment to be duly executed as of the day and year first
above written.
NORTHWEST AIRLINES, INC.,
as Assignor
By: ____________________________________
Name:
Title:
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
Not in its individual capacity
but solely as Owner Trustee,
as Assignee
By: ____________________________________
Name:
Title:
The undersigned, not in its individual capacity but solely as
Indenture Trustee for the benefit of the holders of Secured Certificates and as
assignee of, and holder of a security interest in and to the foregoing Purchase
Agreement Assignment and the Purchase Agreement pursuant to such Purchase
Agreement Assignment, agrees to the terms of the foregoing Purchase Agreement
Assignment and agrees that its rights and remedies under such Purchase Agreement
Assignment shall be subject to the terms and conditions thereof, including
paragraph 4(b), and of the Purchase Agreement.
STATE STREET BANK AND
TRUST COMPANY,
Not in its individual capacity
but solely as Indenture Trustee
By: ____________________________________
Name:
Title:
-6-
