Exhibit 4(f)(3)
EXECUTION COPY
ESCROW AND PAYING AGENT AGREEMENT
(Class C-1)
Dated as of August 5, 2002
among
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as Escrow Agent,
XXXXXXX XXXXX BARNEY INC.,
CREDIT SUISSE FIRST BOSTON CORPORATION,
CREDIT LYONNAIS SECURITIES (USA) INC.,
DEUTSCHE BANK SECURITIES,
X.X. XXXXXX SECURITIES INC.,
ABN AMRO INCORPORATED,
XXXXXX XXXXXXX & CO. INC.,
U.S.BANCORP XXXXX XXXXXXX INC.,
BNP PARIBAS SECURITIES CORP.,
and
THE ROYAL BANK OF SCOTLAND PLC
as Underwriters,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
Northwest Airlines Pass Through Trust 2002-1C-1
as Pass Through Trustee,
AND
STATE STREET BANK AND TRUST COMPANY,
as Paying Agent
TABLE OF CONTENTS
Page
Section 1. Escrow Agent....................................................2
Section 1.1 Appointment of Escrow Agent.................................2
Section 1.2 Instruction, Etc............................................3
Section 1.3 Initial Escrow Amount; Issuance of Escrow Receipts..........4
Section 1.4 Payments to Receiptholders..................................4
Section 1.5 Mutilated, Destroyed, Lost or Stolen Escrow Receipt.........4
Section 1.6 Additional Escrow Amounts...................................5
Section 1.7 Resignation or Removal of Escrow Agent......................5
Section 1.8 Persons Deemed Owners.......................................6
Section 1.9 Further Assurances..........................................6
Section 2. Paying Agent....................................................6
Section 2.1 Appointment of Paying Agent.................................6
Section 2.2 Establishment of Paying Agent Account.......................6
Section 2.3 Payments from Paying Agent Account..........................7
Section 2.4 Withholding Taxes...........................................7
Section 2.5 Resignation or Removal of Paying Agent......................8
Section 2.6 Notice of Final Withdrawal; Series D Non-Issuance
Withdrawals.................................................8
Section 3. Payments........................................................9
Section 4. Other Actions...................................................9
Section 5. Representations and Warranties of the Escrow Agent..............9
Section 6. Representations and Warranties of the Paying Agent.............10
Section 7. Indemnification................................................11
Section 8. Amendment, Etc.................................................11
Section 9. Notices........................................................12
Section 10. Transfer.......................................................12
Section 11. Entire Agreement...............................................13
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Section 12. Governing Law..................................................13
Section 13. WAIVER OF JURY TRIAL RIGHT.....................................13
Section 14. Counterparts...................................................13
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EXHIBITS
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
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This ESCROW AND PAYING AGENT AGREEMENT (Class C-1) dated as of
August 5, 2002 (as amended, modified or supplemented from time to time, this
"Agreement") among Xxxxx Fargo Bank Northwest, National Association, a
national banking association, as Escrow Agent (in such capacity, together with
its successors in such capacity, the "Escrow Agent"), Xxxxxxx Xxxxx Barney
Inc., Credit Suisse First Boston Corp., Credit Lyonnais Securities (USA) Inc.,
Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc., ABN AMRO Inc.,
Xxxxxx Xxxxxxx & Co. Inc., U.S. Bancorp Xxxxx Xxxxxxx Inc., BNP Paribas
Securities Corp. and The Royal Bank of Scotland plc., as Underwriters of the
Certificates referred to below (the "Underwriters" and together with their
respective transferees and assigns as registered owners of the Certificates,
the "Investors") under the Underwriting Agreement referred to below, State
Street Bank and Trust Company of Connecticut, National Association, a national
banking association, not in its individual capacity except as otherwise
expressly provided herein, but solely as trustee (in such capacity, together
with its successors in such capacity, the "Pass Through Trustee") under the
Pass Through Trust Agreement referred to below, and State Street Bank and
Trust Company, as paying agent hereunder (in such capacity, together with its
successors in such capacity, the "Paying Agent").
W I T N E S S E T H:
WHEREAS, Northwest Airlines Corporation, a Delaware corporation (the
"Guarantor"), Northwest Airlines, Inc., a Minnesota corporation ("Northwest")
and the Pass Through Trustee have entered into a Trust Supplement, dated as of
the date hereof (the "Trust Supplement"), to the Pass Through Trust Agreement,
dated as of June 3, 1999, by and among the Guarantor, Northwest and the Pass
Through Trustee, (together, as amended, modified or supplemented from time to
time in accordance with the terms thereof, the "Pass Through Trust
Agreement"), relating to Northwest Airlines Pass Through Trust 2002-1C-1 (the
"Pass Through Trust") pursuant to which the Northwest Airlines Pass Through
Trust, Series 2002-1C-1 Certificates referred to therein (the "Certificates")
are being issued;
WHEREAS, Northwest and the Underwriters have entered into an
Underwriting Agreement dated July 29, 2002 (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the
"Underwriting Agreement") pursuant to which the Pass Through Trustee will
issue and sell the Certificates to the Underwriters;
WHEREAS, Northwest, the Pass Through Trustee, certain other pass
through trustees and certain other persons concurrently herewith are entering
into the Note Purchase Agreement, dated as of the date hereof (the "Note
Purchase Agreement"), pursuant to which the Pass Through Trustee has agreed to
acquire from time to time on or prior to the Delivery Period Termination Date
(as defined in the Note Purchase Agreement) equipment notes (the "Equipment
Notes") issued to finance the acquisition of aircraft by Northwest, or an
owner trustee, utilizing a portion of the proceeds from the sale of the
Certificates (the "Net Proceeds");
WHEREAS, the Underwriters and the Pass Through Trustee intend that
the Net Proceeds be held in escrow by the Escrow Agent on behalf of the
Investors, subject to withdrawal upon request by the Pass Through Trustee and
satisfaction of the conditions set forth in the Note Purchase Agreement for
the purpose of purchasing Equipment Notes, and that pending such withdrawal
the Net Proceeds be deposited on behalf of the Escrow Agent with
Credit Suisse First Boston, New York Branch, as Depositary (the "Depositary")
under the Deposit Agreement, dated as of the date hereof, between the
Depositary and the Escrow Agent relating to the Pass Through Trust (as
amended, modified or supplemented from time to time in accordance with the
terms thereof, the "Deposit Agreement") pursuant to which, among other things,
the Depositary will pay interest for distribution to the Investors and
establish accounts from which the Escrow Agent shall make withdrawals upon
request of and proper certification by the Pass Through Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying Agent to pay
amounts required to be distributed to the Investors in accordance with this
Agreement; and
WHEREAS, capitalized terms used but not defined herein shall have
the respective meanings set forth or incorporated by reference in the Pass
Through Trust Agreement.
NOW, THEREFORE, in consideration of the obligations contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
as follows:
Section 1. Escrow Agent.
Section 1.1 Appointment of Escrow Agent. Each of the Underwriters,
for and on behalf of each of the Investors, hereby irrevocably appoints,
authorizes and directs the Escrow Agent to act as escrow agent and fiduciary
hereunder and under the Deposit Agreement for such specific purposes and with
such powers as are specifically delegated to the Escrow Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Any and all money received and held by the Escrow Agent under this
Agreement or the Deposit Agreement shall be held in escrow by the Escrow Agent
in accordance with the terms of this Agreement. This Agreement is irrevocable
and the Investors' rights with respect to any monies received and held in
escrow by the Escrow Agent under this Agreement or the Deposit Agreement shall
only be as provided under the terms and conditions of this Agreement and the
Deposit Agreement. The Escrow Agent (which term as used in this sentence shall
include reference to its affiliates and its own and its affiliates' officers,
directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement;
(b) shall not be responsible to the Pass Through Trustee or the
Investors for any recitals, statements, representations or warranties of
any person other than itself contained in this Agreement or the Deposit
Agreement or for the failure by the Pass Through Trustee, the Investors
or any other person or entity (other than the Escrow Agent) to perform
any of its obligations hereunder (whether or not the Escrow Agent shall
have any knowledge thereof); and
(c) shall not be responsible for any action taken or omitted to be
taken by it hereunder or provided for herein or in connection herewith,
except for its own willful misconduct or gross negligence (or simple
negligence in connection with the handling of funds) or breach of its
obligations hereunder.
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The Escrow Agent is authorized to appoint a Luxembourg Paying Agent as its
agent hereunder to perform actions substantially the same as those performed
by the Luxembourg Paying Agent for the Pass Through Trustee.
Section 1.2 Instruction, Etc. The Underwriters, for and on behalf of
each of the Investors, hereby irrevocably instruct the Escrow Agent, and the
Escrow Agent agrees: (a) to enter into the Deposit Agreement and, if requested
by the Company pursuant to Section 5(a)(vi) of the Note Purchase Agreement, to
enter into a Replacement Deposit Agreement with the Replacement Depositary
specified by the Company; (b) to appoint the Paying Agent as provided in this
Agreement; (c) upon receipt at any time and from time to time prior to the
Termination Date (as defined below) of a certificate substantially in the form
of Exhibit B hereto (a "Withdrawal Certificate") executed by the Pass Through
Trustee, together with an attached Notice of Purchase Withdrawal in
substantially the form of Exhibit A to the Deposit Agreement duly completed by
the Pass Through Trustee (the "Applicable Notice of Purchase Withdrawal" and
the withdrawal to which it relates, a "Purchase Withdrawal"), immediately to
execute the Applicable Notice of Purchase Withdrawal as Escrow Agent and
transmit it to the Depositary by facsimile transmission in accordance with the
Deposit Agreement; provided that, upon the request of the Pass Through Trustee
after such transmission, the Escrow Agent shall cancel such Applicable Notice
of Purchase Withdrawal; (d) upon receipt of a Withdrawal Certificate executed
by the Pass Through Trustee, together with an attached Notice of Replacement
Withdrawal in substantially the form of Exhibit C to the Deposit Agreement (a
"Notice of Replacement Withdrawal") duly completed by the Pass Through
Trustee, to (X) give such Notice of Replacement Withdrawal to the Depositary
requesting a withdrawal, on the date specified in such notice, which shall not
be less than 15 days after such notice is given (the "Replacement Withdrawal
Date"), of all Deposits then held by the Depositary together with, if the
Replacement Withdrawal Date occurs on a Regular Distribution Date, all accrued
and unpaid interest on such Deposits to but excluding the Replacement
Withdrawal Date, and (Y) direct the Depositary to transfer such Deposits on
behalf of the Escrow Agent to the Replacement Depositary in accordance with
the Replacement Deposit Agreement; (e) upon receipt at any time and from time
to time of a Withdrawal Certificate executed by the Pass Through Trustee,
together with an attached Notice of Series D Non-Issuance Withdrawal in
substantially the form of Exhibit D to the Deposit Agreement duly completed by
the Pass Through Trustee (the "Applicable Notice of Series D Non-Issuance
Withdrawal" and the withdrawal to which it relates, a "Series D Non-Issuance
Withdrawal"), immediately to execute the Applicable Notice of Series D
Non-Issuance Withdrawal as Escrow Agent and transmit it to the Depositary by
facsimile transmission in accordance with the Deposit Agreement; provided
that, upon the request of the Pass Through Trustee after such transmission,
the Escrow Agent shall cancel with Applicable Notice of Series D Non-Issuance
Withdrawal; and (f) if there are any undrawn Deposits (as defined in the
Deposit Agreement) on the "Termination Date", which shall mean the earlier of
(i) March 31, 2004 and (ii) the day on which the Escrow Agent receives notice
from the Pass Through Trustee that the Pass Through Trustee's obligation to
purchase Equipment Notes under the Note Purchase Agreement has terminated, to
give notice to the Depositary (with a copy to the Paying Agent) substantially
in the form of Exhibit B to the Deposit Agreement requesting a withdrawal of
all of the remaining Deposits, together with accrued and unpaid interest on
such Deposits to the date of withdrawal, on the 25th day after the date that
such notice of withdrawal is given to the Depositary (or, if not a Business
Day, on the next succeeding Business Day) (a "Final
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Withdrawal"), provided that if the day scheduled for the Final Withdrawal in
accordance with the foregoing is within ten (10) days before or after a
Regular Distribution Date, then the Escrow Agent shall request that such
requested Final Withdrawal be made on such Regular Distribution Date (the date
of such requested withdrawal, the "Final Withdrawal Date"). If for any reason
the Escrow Agent shall have failed to give the Final Withdrawal Notice to the
Depositary on or before March 31, 2004, and there are unwithdrawn Deposits on
such date, the Final Withdrawal Date shall be deemed to be April 15, 2004.
Section 1.3 Initial Escrow Amount; Issuance of Escrow Receipts. The
Escrow Agent hereby directs the Underwriters to, and the Underwriters hereby
acknowledge that on the date hereof they shall, irrevocably deliver to the
Depositary on behalf of the Escrow Agent, an amount in U.S. dollars
("Dollars") and immediately available funds equal to $56,000,000 for deposit
on behalf of the Escrow Agent with the Depositary in accordance with Section
2.1 of the Deposit Agreement. The Underwriters hereby instruct the Escrow
Agent, upon receipt of such sum from the Underwriters, to confirm such receipt
by executing (by manual or facsimile signature) and delivering to the Pass
Through Trustee an Escrow Receipt in the form of Exhibit A hereto (an "Escrow
Receipt"), (a) to be affixed by the Pass Through Trustee to each Certificate
and (b) to evidence the same percentage interest ("Escrow Interest") in the
Account Amounts (as defined below) as the Fractional Undivided Interest in the
Pass Through Trust evidenced by the Certificate to which it is to be affixed.
The Escrow Agent shall provide to the Pass Through Trustee for attachment to
each Certificate newly issued under and in accordance with the Pass Through
Trust Agreement an executed Escrow Receipt as the Pass Through Trustee may
from time to time request of the Escrow Agent. Each Escrow Receipt shall be
registered by the Escrow Agent in a register (the "Register") maintained by
the Escrow Agent in the same name and same manner as the Certificate to which
it is attached and may not thereafter be detached from such Certificate to
which it is to be affixed prior to the distribution of the Final Withdrawal
(the "Final Distribution"). After the Final Distribution, no additional Escrow
Receipts shall be issued and the Pass Through Trustee shall request the return
to the Escrow Agent for cancellation of all outstanding Escrow Receipts.
Section 1.4 Payments to Receiptholders. All payments and
distributions made to holders of an Escrow Receipt (collectively,
"Receiptholders") in respect of the Escrow Receipt shall be made only from
amounts deposited in the Paying Agent Account (as defined below) ("Account
Amounts"). Each Receiptholder, by its acceptance of an Escrow Receipt, agrees
that (a) it will look solely to the Account Amounts for any payment or
distribution due to such Receiptholder pursuant to the terms of the Escrow
Receipt and this Agreement and (b) it will have no recourse to Northwest, the
Pass Through Trustee, the Paying Agent or the Escrow Agent, except as
expressly provided herein or in the Pass Through Trust Agreement. No
Receiptholder shall have any right to vote or in any manner otherwise control
the operation and management of the Paying Agent Account or the obligations of
the parties hereto, nor shall anything set forth herein, or contained in the
terms of the Escrow Receipt, be construed so as to constitute the
Receiptholders from time to time as partners or members of an association.
Section 1.5 Mutilated, Destroyed, Lost or Stolen Escrow Receipt. If
(a) any mutilated Escrow Receipt is surrendered to the Escrow Agent or the
Escrow Agent receives evidence to its satisfaction of the destruction, loss or
theft of any Escrow Receipt and (b) there is delivered to the Escrow Agent and
the Pass Through Trustee such security, indemnity or bond,
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as may be required by them to hold each of them harmless, then, absent notice
to the Escrow Agent or the Pass Through Trustee that such destroyed, lost or
stolen Escrow Receipt has been acquired by a bona fide purchaser, and provided
that the requirements of Section 8-405 of the Uniform Commercial Code in
effect in any applicable jurisdiction are met, the Escrow Agent shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Escrow Receipt, a new Escrow Receipt or Escrow Receipts and of like
Escrow Interest in the Account Amounts and bearing a number not
contemporaneously outstanding.
In connection with the issuance of any new Escrow Receipt under this
Section 1.5, the Escrow Agent may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Pass
Through Trustee and the Escrow Agent) connected therewith.
Any duplicate Escrow Receipt issued pursuant to this Section 1.5
shall constitute conclusive evidence of the appropriate Escrow Interest in the
Account Amounts, as if originally issued, whether or not the lost, stolen or
destroyed Escrow Receipt shall be found at any time.
The provisions of this Section 1.5 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Escrow
Receipts.
Section 1.6 Additional Escrow Amounts. On the date of any Purchase
Withdrawal, the Pass Through Trustee may re-deposit with the Depositary some
or all of the amounts so withdrawn in accordance with Section 2.4 of the
Deposit Agreement.
Section 1.7 Resignation or Removal of Escrow Agent. Subject to the
appointment and acceptance of a successor Escrow Agent as provided below, the
Escrow Agent may resign at any time by giving thirty (30) days' prior written
notice thereof to the Investors, but may not otherwise be removed except for
cause by the written consent of the Investors with respect to Investors
representing Escrow Interests aggregating not less than a majority in interest
in the Account Amounts (an "Action of Investors"). Upon any such resignation
or removal, the Investors, by an Action of Investors, shall have the right to
appoint a successor Escrow Agent. If no successor Escrow Agent shall have been
so appointed and shall have accepted such appointment within thirty (30) days
after the retiring Escrow Agent's giving of notice of resignation or the
removal of the retiring Escrow Agent, then the retiring Escrow Agent may
appoint a successor Escrow Agent. Any successor Escrow Agent shall be a bank
which has an office in the United States with a combined capital and surplus
of at least $100,000,000. Upon the acceptance of any appointment as Escrow
Agent hereunder by a successor Escrow Agent, such successor Escrow Agent shall
enter into such documents as the Pass Through Trustee shall require and shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall
be discharged from its duties and obligations hereunder. No resignation or
removal of the Escrow Agent shall be effective unless a written confirmation
shall have been obtained from each of Fitch, Inc., Xxxxx'x Investors Service,
Inc. and Standard & Poor's Ratings Services, a Division of The XxXxxx-Xxxx
Companies, Inc., that the replacement of the Escrow Agent with the successor
Escrow Agent will not result in (a) a reduction of the rating for the
Certificates below the then
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current rating for the Certificates (without regard to the Polices, in the
case of the Class G-1 and Class G-2 Certificates) or (b) a withdrawal or
suspension of the rating of the Certificates.
Section 1.8 Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Escrow Agent and the Paying
Agent may treat the Person in whose name any Escrow Receipt is registered (as
of the day of determination) as the owner of such Escrow Receipt for the
purpose of receiving distributions pursuant to this Agreement and for all
other purposes whatsoever, and neither the Escrow Agent nor the Paying Agent
shall be affected by any notice to the contrary.
Section 1.9 Further Assurances. The Escrow Agent agrees to take such
actions, and execute such other documents, as may be reasonably requested by
the Pass Through Trustee in order to effectuate the purposes of this Agreement
and the performance by the Escrow Agent of its obligations hereunder.
Section 2. Paying Agent.
Section 2.1 Appointment of Paying Agent. The Escrow Agent hereby
irrevocably appoints and authorizes the Paying Agent to act as its paying
agent hereunder, for the benefit of the Investors, for such specific purposes
and with such powers as are specifically delegated to the Paying Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Paying Agent
under this Agreement or the Deposit Agreement shall be held in the Paying
Agent Account for the benefit of the Investors. The Paying Agent (which term
as used in this sentence shall include reference to its affiliates and its own
and its affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement, and shall not by reason of this Agreement be a
trustee for the Escrow Agent;
(b) shall not be responsible to the Escrow Agent for any recitals,
statements, representations or warranties of any person other then itself
contained in this Agreement or for the failure by the Escrow Agent or any
other person or entity (other than the Paying Agent) to perform any of its
obligations hereunder (whether or not the Paying Agent shall have any
knowledge thereof); and
(c) shall not be responsible for any action taken or omitted to be
taken by it hereunder or provided for herein or in connection herewith, except
for its own willful misconduct or gross negligence (or simple negligence in
connection with the handling of funds).
The Paying Agent is authorized to appoint a Luxembourg Paying Agent as its
agent hereunder to perform actions substantially the same as those performed
by the Luxembourg Paying Agent for the Pass Through Trustee.
Section 2.2 Establishment of Paying Agent Account. The Paying Agent
shall establish a deposit account (the "Paying Agent Account") at State Street
Bank and Trust Company in the name of the Escrow Agent. It is expressly
understood by the parties hereto that the Paying Agent is acting as the paying
agent of the Escrow Agent hereunder and that no amounts on deposit in the
Paying Agent Account constitute part of the Trust Property.
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Section 2.3 Payments from Paying Agent Account. The Escrow Agent
hereby irrevocably instructs the Paying Agent, and the Paying Agent agrees to
act, as follows:
(a) On each Interest Payment Date (as defined in the Deposit
Agreement) or as soon thereafter as the Paying Agent has confirmed receipt in
the Paying Agent Account from the Depositary of any amount in respect of
accrued interest on the Deposits, the Paying Agent shall distribute out of the
Paying Agent Account the entire amount deposited therein by the Depositary.
There shall be so distributed to each Receiptholder of record on the 15th day
(whether or not a Business Day) preceding such Interest Payment Date by check
mailed to such Receiptholder, at the address appearing in the Register, such
Receiptholder's pro rata share (based on the Escrow Interest in the Account
Amounts held by such Receiptholder) of the total amount of interest deposited
by the Depositary in the Paying Agent Account on such date, except that, with
respect to Escrow Receipts registered on the Record Date in the name of The
Depository Trust Company, a New York Corporation ("DTC"), such distribution
shall be made by wire transfer in immediately available funds to the account
designated by DTC.
(b) Upon the confirmation by the Paying Agent of receipt in the
Paying Agent Account from the Depositary of any amount in respect of the Final
Withdrawal or any Series D Non-Issuance Withdrawal, the Paying Agent shall
forthwith distribute the entire amount of the Final Withdrawal or such Series
D Non-Issuance Withdrawal, as the case may be, deposited therein by the
Depositary. There shall be so distributed to each Receiptholder of record on
the 15th day (whether or not a Business Day) preceding the Final Withdrawal
Date or, in the case of a Series D Non-Issuance Withdrawal, on the date
specified for payment thereof by the Pass Through Trustee in the Applicable
Notice of Series D Non-Issuance Withdrawal by check mailed to such
Receiptholder, at the address appearing in the Register, such Receiptholder's
pro rata share (based on the Escrow Interest in the Account Amounts held by
such Receiptholder) of the total amount in the Paying Agent Account on account
of such Final Withdrawal or such Series D Non-Issuance Withdrawal, as the case
may be, except that, with respect to Escrow Receipts registered on the Record
Date in the name of DTC, such distribution shall be made by wire transfer in
immediately available funds to the account designated by DTC.
(c) If any payment of interest or principal in respect of the Final
Withdrawal or any Series D Non-Issuance Withdrawal is not received by the
Paying Agent within five (5) days of the applicable date when due, then it
shall be distributed to Receiptholders after actual receipt by the Paying
Agent on the same basis as a Special Payment is distributed under the Pass
Through Trust Agreement.
(d) The Paying Agent shall include with any check mailed pursuant to
this Section any notice required to be distributed under the Pass Through
Trust Agreement that is furnished to the Paying Agent by the Pass Through
Trustee.
Section 2.4 Withholding Taxes. The Paying Agent shall exclude and
withhold from each distribution of accrued interest on the Deposits (as
defined in the Deposit Agreement) and any amount in respect of the Final
Withdrawal or any Series D Non-Issuance Withdrawal any and all withholding
taxes applicable thereto as required by law. The Paying Agent agrees to act as
such withholding agent and, in connection therewith, whenever any present or
future taxes or similar charges are required to be withheld with respect to
any amounts payable in respect of
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the Deposits (as defined in the Deposit Agreement) or the escrow amounts, to
withhold such amounts and timely pay the same to the appropriate authority in
the name of and on behalf of the Receiptholders, that it will file any
necessary withholding tax returns or statements when due, and that, as
promptly as possible after the payment thereof, it will deliver to each such
Receiptholder appropriate documentation showing the payment thereof, together
with such additional documentary evidence as such Receiptholder may reasonably
request from time to time. The Paying Agent agrees to file any other
information reports as it may be required to file under United States law.
Section 2.5 Resignation or Removal of Paying Agent. Subject to the
appointment and acceptance of a successor Paying Agent as provided below, the
Paying Agent may resign at any time by giving thirty (30) days' prior written
notice thereof to the Escrow Agent, but may not otherwise be removed except
for cause by the Escrow Agent. Upon any such resignation or removal, the
Escrow Agent shall have the right to appoint a successor Paying Agent. If no
successor Paying Agent shall have been so appointed and shall have accepted
such appointment within thirty (30) days after the retiring Paying Agent's
giving of notice of resignation or the removal of the retiring Paying Agent,
then the retiring Paying Agent may appoint a successor Paying Agent. Any
Successor Paying Agent shall be a bank which has an office in the United
States with a combined capital and surplus of at least US$100,000,000. Upon
the acceptance of any appointment as Paying Agent hereunder by a successor
Paying Agent, such successor Paying Agent shall enter into such documents as
the Escrow Agent shall require and shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Paying Agent, and the retiring Paying Agent shall be discharged from its
duties and obligations hereunder.
Section 2.6 Notice of Final Withdrawal; Series D Non-Issuance
Withdrawals. Promptly after receipt by the Paying Agent of notice that the
Escrow Agent has requested a Final Withdrawal or Series D Non-Issuance
Withdrawal or that a Final Withdrawal will be made, the Paying Agent shall
cause notice of the distribution of the Final Withdrawal or Series D
Non-Issuance Withdrawal, as the case may be, to be mailed to each of the
Receiptholders at its address as it appears in the Register. In addition, the
Paying Agent shall cause such notice to be published in the Luxemburger Wort
or in another daily newspaper of general circulation in Luxembourg (or, if not
practical, elsewhere in Europe) promptly after such notice is mailed to
Receiptholders. Such notice shall be mailed not less than fifteen (15) days
prior to the Final Withdrawal Date or date of payment of such Series D
Non-Issuance Withdrawal, as the case may be. Such notice shall set forth:
(a) the Final Withdrawal Date or date of payment of such Series D
Non-Issuance Withdrawal, as the case may be and the date for determining
Receiptholders of record who shall be entitled to receive distributions
in respect of the Final Withdrawal or a Series D Non-Issuance Withdrawal;
(b) the amount of the payment in respect of the Final Withdrawal or
a Series D Non-Issuance Withdrawal for each $1,000 face amount
Certificate (based on information provided by the Pass Through Trustee)
and the amount thereof constituting unused Deposits (as defined in the
Deposit Agreement) and interest thereon; and
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(c) if the Final Withdrawal Date or date of payment of such Series D
Non-Issuance Withdrawal, as the case may be, is the same date as a
Regular Distribution Date, the total amount to be received on such date
for each $1,000 face amount Certificate (based on information provided by
the Pass Through Trustee).
Such mailing (and newspaper publication) may include any notice
required to be given to Certificateholders in connection with such
distribution pursuant to the Pass Through Trust Agreement.
Section 3. Payments. If, notwithstanding the instructions in Article
IV of the Deposit Agreement that all amounts payable to the Escrow Agent under
the Deposit Agreement be paid by the Depositary directly to the Paying Agent
or the Pass Through Trustee (depending on the circumstances), the Escrow Agent
receives any payment thereunder, then the Escrow Agent shall forthwith pay
such amount in Dollars and in immediately available funds by wire transfer to
(a) in the case of a payment of accrued interest on the Deposits (as defined
in the Deposit Agreement) or any Final Withdrawal or any Series D Non-Issuance
Withdrawal directly to the Paying Agent Account and (b) in the case of any
Purchase Withdrawal, directly to the Pass Through Trustee or its designee as
specified and in the manner provided in the Applicable Notice of Purchase
Withdrawal. The Escrow Agent hereby waives any and all rights of set-off,
combination of accounts, right of retention or similar right (whether arising
under applicable law, contract or otherwise) it may have against amounts
payable to the Paying Agent howsoever arising.
Section 4. Other Actions. The Escrow Agent shall take such other
actions under or in respect of the Deposit Agreement (including, without
limitation, the enforcement of the obligations of the Depositary thereunder)
as the Investors, by an Action of Investors, may from time to time request.
Section 5. Representations and Warranties of the Escrow Agent. The
Escrow Agent represents and warrants to Northwest, the Investors, the Paying
Agent and the Pass Through Trustee as follows:
(a) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America;
(b) it has full power, authority and legal right to conduct its
business and operations as currently conducted and to enter into and
perform its obligations under this Agreement and the Deposit Agreement;
(c) the execution, delivery and performance of each of this
Agreement and the Deposit Agreement have been duly authorized by all
necessary corporate action on the part of it and do not require any
stockholder approval, or approval or consent of any trustee or holder of
any indebtedness or obligations of it, and each such document has been
duly executed and delivered by it and constitutes its legal, valid and
binding obligations enforceable against it in accordance with the terms
hereof or thereof except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
or equitable principles of general application to or
9
affecting the enforcement of creditors' rights generally (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(d) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement or the Deposit Agreement;
(e) neither the execution, delivery or performance by it of this
Agreement or the Deposit Agreement, nor compliance with the terms and
provisions hereof or thereof, conflicts or will conflict with or results
or will result in a breach or violation of any of the terms, conditions
or provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or
bylaws, as amended, of it or any similar instrument binding on it or any
order, writ, injunction or decree of any court or governmental authority
against it or by which it or any of its properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
it is a party or by which it or any of its properties is bound, or
constitutes or will constitute a default thereunder or results or will
result in the imposition of any lien upon any of its properties; and
(f) there are no pending or, to its knowledge, threatened actions,
suits, investigations or proceedings (whether or not purportedly on
behalf of it) against or affecting it or any of its property before or by
any court or administrative agency which, if adversely determined, (A)
would adversely affect the ability of it to perform its obligations under
this Agreement or the Deposit Agreement or (B) would call into question
or challenge the validity of this Agreement or the Deposit Agreement or
the enforceability hereof or thereof in accordance with the terms hereof
or thereof, nor is the Escrow Agent in default with respect to any order
of any court, governmental authority, arbitration board or administrative
agency so as to adversely affect its ability to perform its obligations
under this Agreement or the Deposit Agreement.
Section 6. Representations and Warranties of the Paying Agent. The
Paying Agent represents and warrants to Northwest, the Investors, the Escrow
Agent and the Pass Through Trustee as follows:
(a) it is a trust company duly organized and validly existing in
good standing under the laws of the Commonwealth of Massachusetts;
(b) it has full power, authority and legal right to conduct its
business and operations as currently conducted and to enter into and
perform its obligations under this Agreement;
(c) the execution, delivery and performance of this Agreement has
been duly authorized by all necessary corporate action on the part of it
and does not require any stockholder approval, or approval or consent of
any trustee or holder of any indebtedness or obligations of it, and such
document has been duly executed and delivered by it and constitutes its
legal, valid and binding obligations enforceable against it in accordance
10
with the terms hereof except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
or equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(d) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement;
(e) neither the execution, delivery or performance by it of this
Agreement, nor compliance with the terms and provisions hereof, conflicts
or will conflict with or results or will result in a breach or violation
of any of the terms, conditions or provisions of, or will require any
consent or approval under, any law, governmental rule or regulation or
the charter documents, as amended, or bylaws, as amended, of it or any
similar instrument binding on it or any order, writ, injunction or decree
of any court or governmental authority against it or by which it or any
of its properties is bound or any indenture, mortgage or contract or
other agreement or instrument to which it is a party or by which it or
any of its properties is bound, or constitutes or will constitute a
default thereunder or results or will result in the imposition of any
lien upon any of its properties; and
(f) there are no pending or, to its knowledge, threatened actions,
suits, investigations or proceedings (whether or not purportedly on
behalf of it) against or affecting it or any of its property before or by
any court or administrative agency which, if adversely determined, (A)
would adversely affect the ability of it to perform its obligations under
this Agreement or (B) would call into question or challenge the validity
of this Agreement or the enforceability hereof in accordance with the
terms hereof, nor is the Paying Agent in default with respect to any
order of any court, governmental authority, arbitration board or
administrative agency so as to adversely affect its ability to perform
its obligations under this Agreement.
Section 7. Indemnification. Except for actions expressly required of
the Escrow Agent or the Paying Agent hereunder, each of the Escrow Agent and
the Paying Agent shall in all cases be fully justified in failing or refusing
to act hereunder unless it shall have been indemnified by the party requesting
such action in a manner reasonably satisfactory to it against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. In the event Northwest requests any
amendment to any Operative Document (as defined in the Note Purchase
Agreement), the Pass Through Trustee agrees to pay all reasonable fees and
expenses (including, without limitation, fees and disbursements of counsel) of
the Escrow Agent and the Paying Agent in connection therewith.
Section 8. Amendment, Etc. Upon request of the Pass Through Trustee
and approval by an Action of Investors, the Escrow Agent shall enter into an
amendment to this Agreement, so long as such amendment does not adversely
affect the rights or obligations of the Escrow Agent or the Paying Agent,
provided that upon request of the Pass Through Trustee and
11
without any consent of the Investors, the Escrow Agent shall enter into an
amendment to this Agreement for any of the following purposes:
(a) to correct or supplement any provision in this Agreement which
may be defective or inconsistent with any other provision herein or to
cure any ambiguity or correct any mistake or to modify any other
provision with respect to matters or questions arising under this
Agreement, provided that any such action shall not materially adversely
affect the interests of the Investors; or
(b) to comply with any requirement of the Securities and Exchange
Commission, applicable law, rules or regulations of any exchange or
quotation system on which the Certificates are listed or any regulatory
body; or
(c) to evidence and provide for the acceptance of appointment under
this Agreement of a successor Escrow Agent, successor Paying Agent or
successor Pass Through Trustee.
Section 9. Notices. Unless otherwise expressly provided herein, any
notice or other communication under this Agreement shall be in writing
(including by facsimile) and shall be deemed to be given and effective upon
receipt thereof (or, if received outside of business hours, on the next
opening of business on a Business Day). All notices shall be sent to (a) in
the case of the Investors, as their respective addresses shall appear in the
Register, (b) in the case of the Escrow Agent, Xxxxx Fargo Bank Northwest,
National Association, 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, XX 00000,
Attention: Corporate Trust Services (Telecopier: (000) 000-0000), (c) in the
case of the Pass Through Trustee, State Street Bank and Trust Company of
Connecticut, National Association, 000 Xxxxxx Xxxxxx, Xxxxxxx Square,
Hartford, Connecticut 06103, Attention: Corporate/Muni Department (Telecopier:
(000) 000-0000) or (d) in the case of the Paying Agent, State Street Bank and
Trust Company, 0 Xxxxxx xx Xxxxxxxxx, Xxxxxx, XX 00000, Attention: Corporate
Trust Department (Telecopier: (000) 000-0000), in each case with a copy to
Xxxxxxxxx Xxxxxxxx, Xxx., Xxxxxxxxxx X0000, 0000 Xxxxxxxxx Xxxxx, Xx. Xxxx, XX
00000-0000, Attention: Treasurer (Telecopier: (000) 000-0000) (or at such
other address as any such party may specify from time to time in a written
notice to the other parties). On or prior to the execution of this Agreement,
the Pass Through Trustee has delivered to the Escrow Agent a certificate
containing specimen signatures of the representatives of the Pass Through
Trustee who are authorized to give notices and instructions with respect to
this Agreement. The Escrow Agent may conclusively rely on such certificate
until the Escrow Agent receives written notice from the Pass Through Trustee
to the contrary.
Section 10. Transfer. No party hereto shall be entitled to assign or
otherwise transfer this Agreement (or any interest herein) other than (in the
case of the Escrow Agent) to a successor escrow agent under Section 1.7 hereof
or (in the case of the Paying Agent) to a successor paying agent under Section
2.5 hereof, and any purported assignment in violation thereof shall be void.
This Agreement shall be binding upon the parties hereto and their respective
successors and (in the case of the Escrow Agent and the Paying Agent) their
respective permitted assigns.
12
Section 11. Entire Agreement. This Agreement sets forth all of the
promises, covenants, agreements, conditions and understandings among the
Escrow Agent, the Paying Agent, the Underwriters and the Pass Through Trustee
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and undertakings, inducements or conditions,
express or implied, oral or written.
Section 12. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 13. WAIVER OF JURY TRIAL RIGHT. EACH OF THE ESCROW AGENT,
THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE ACKNOWLEDGES AND
ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
Section 14. Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute
one instrument.
13
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the
Underwriters and the Pass Through Trustee have caused this Escrow and Paying
Agent Agreement (Class C-1) to be duly executed as of the day and year first
above written.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, as Escrow Agent
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Pass Through
Trustee for and on behalf of Northwest
Airlines Pass Through Trust 2002-1C-1
By:
----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Paying Agent
By:
----------------------------------
Name:
Title:
14
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the
Underwriters and the Pass Through Trustee have caused this Escrow and Paying
Agent Agreement (Class C-1) to be duly executed as of the day and year first
above written.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, as Escrow Agent
By:
----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Pass Through
Trustee for and on behalf of Northwest
Airlines Pass Through Trust 2002-1C-1
By: /s/ Xxxxxxx X. Ring
----------------------------------
Name: Xxxxxxx X. Ring
Title: Assistant Vice President
STATE STREET BANK AND TRUST
COMPANY, as Paying Agent
By: /s/ Xxxxxxx X. Ring
----------------------------------
Name: Xxxxxxx X. Ring
Title: Assistant Vice President
14
Xxxxxxx Xxxxx Barney Inc.,
Credit Suisse First Boston Corporation,
Credit Lyonnais Securities (USA) Inc.,
Deutsche Bank Securities Inc.,
X.X. Xxxxxx Securities Inc.,
ABN AMRO Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
U.S. Bancorp Xxxxx Xxxxxxx Inc.,
BNP Paribas Securities Corp., and
The Royal Bank of Scotland plc
as Underwriters
By: Xxxxxxx Xxxxx Xxxxxx Inc., as
representative of the several
Underwriters
By: /s/ Xxx Xxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxx
Title: Director
15
EXHIBIT A
Northwest Airlines 2002-1C-1 Escrow Receipt No. ____
This Escrow Receipt evidences a fractional undivided interest in
amounts ("Account Amounts") from time to time deposited into a certain paying
agent account (the "Paying Agent Account") described in the Escrow and Paying
Agent Agreement (Class C-1) dated as of August 5, 2002 (as amended, modified
or supplemented from time to time, the "Escrow and Paying Agent Agreement")
among Xxxxx Fargo Bank Northwest, National Association, a national banking
association, as Escrow Agent (in such capacity, together with its successors
in such capacity, the "Escrow Agent"), Xxxxxxx Xxxxx Xxxxxx Inc., Credit
Suisse First Boston Corp., Credit Lyonnais Securities (USA) Inc., Deutsche
Bank Securities Inc., X.X. Xxxxxx Securities Inc., ABN AMRO Inc., Xxxxxx
Xxxxxxx & Co. Inc., U.S. Bancorp Xxxxx Xxxxxxx Inc., BNP Paribas Securities
Corp. and The Royal Bank of Scotland plc., as Underwriters, State Street Bank
and Trust Company of Connecticut, National Association, as Pass Through
Trustee (in such capacity, together with its successors in such capacity, the
"Pass Through Trustee") and State Street Bank and Trust Company, as paying
agent (in such capacity, together with its successors in such capacity, the
"Paying Agent"). Capitalized terms not defined herein shall have the meanings
assigned to them in the Escrow and Paying Agent Agreement.
This Escrow Receipt is issued under and is subject to the terms,
provisions and conditions of the Escrow and Paying Agent Agreement. By virtue
of its acceptance hereof the holder of this Escrow Receipt assents and agrees
to be bound by the provisions of the Escrow and Paying Agent Agreement and
this Escrow Receipt.
This Escrow Receipt represents a fractional undivided interest in
amounts deposited from time to time in the Paying Agent Account, and grants or
represents no rights, benefits or interests of any kind in respect of any
assets or property other than such amounts. This Escrow Receipt evidences the
same percentage interest in the Account Amounts as the Fractional Undivided
Interest in the Pass Through Trust evidenced by the Certificate to which this
Escrow Receipt is affixed.
All payments and distributions made to Receiptholders in respect of
the Escrow Receipt shall be made only from Account Amounts deposited in the
Paying Agent Account. The holder of this Escrow Receipt, by its acceptance of
this Escrow Receipt, agrees that it will look solely to the Account Amounts
for any payment or distribution due to it pursuant to this Escrow Receipt and
that it will not have any recourse to Northwest, the Pass Through Trustee, the
Paying Agent or the Escrow Agent, except as expressly provided herein or in
the Pass Through Trust Agreement. No Receiptholder of this Escrow Receipt
shall have any right to vote or in any manner otherwise control the operation
and management of the Paying Agent Account, nor shall anything set forth
herein, or contained in the terms of this Escrow Receipt, be construed so as
to constitute the Receiptholders from time to time as partners or members of
an association.
This Escrow Receipt may not be assigned or transferred except in
connection with the assignment or transfer of the Certificate to which this
Escrow Receipt is affixed. After payment to the holder hereof of its Escrow
Interest in the Final Distribution, upon the request of
the Pass Through Trustee, the holder hereof will return this Escrow Receipt to
the Pass Through Trustee.
The Paying Agent may treat the person in whose name the Certificate
to which this Escrow Receipt is attached as the owner hereof for all purposes,
and the Paying Agent shall not be affected by any notice to the contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt
to be duly executed.
Dated: [____ , 2002]
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, as Escrow Agent
By __________________________________
Name:
Title:
2
EXHIBIT B
Withdrawal Certificate
(Class C-1)
Xxxxx Fargo Bank Northwest, National Association,
as Escrow Agent
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attention: Corporate Trust Services
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement dated as
of August 5, 2002 (the "Agreement"). [We hereby certify to you that the
conditions to the obligations of the undersigned to execute a Participation
Agreement pursuant to the Note Purchase Agreement have been satisfied.] [We
hereby notify you that we have been directed pursuant to Section 2(b) of the
Note Purchase Agreement to instruct you to deliver notice of a Series D
Non-Issuance Withdrawal.] [We hereby notify you that the Depositary is being
replaced in accordance with Section 5(a)(vi) of the Note Purchase Agreement.]
Pursuant to Section [1.2(c)] [1.2(d)] [1.2(e)] of the Agreement, please
execute the attached [Notice of Purchase Withdrawal] [Notice of Series D
Non-Issuance Withdrawal] [Notice of Replacement Withdrawal] and immediately
transmit by facsimile to the Depositary, at [insert fax no.], Attention:
_______.
Capitalized terms used herein but not defined shall have the
meanings specified in the Agreement.
Very truly yours,
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Pass Through Trustee
By:_______________________________________
Name:
Title:
Dated: _________, ____
