EX-99(G)
EXHIBIT 99(G)
=========================================================================
PARTICIPATION AGREEMENT
[NW ____ _]
Dated as of
[________________]
Among
NORTHWEST AIRLINES, INC.,
Owner,
NORTHWEST AIRLINES CORPORATION,
Guarantor,
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
Pass Through Trustee under each
of the Pass Through Trust
Agreements,
STATE STREET BANK AND TRUST COMPANY,
Subordination Agent,
and
STATE STREET BANK AND TRUST COMPANY,
in its Individual Capacity and
as Indenture Trustee
_____________________
One [Airbus A319-114] [Boeing 757-251] Aircraft
N[_____]
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TABLE OF CONTENTS
Page
SECTION 1. Purchase of Secured Certificates by Pass Through
Trustees. . . . . . . . . . . . . . . . . . . . . . . 3
(a) Purchase of Secured Certificates by Pass Through
Trustees. . . . . . . . . . . . . . . . . . . . . . . 3
(b) [Intentionally Omitted]. . . . . . . . . . . . . . . . . 3
(c) General Provisions . . . . . . . . . . . . . . . . . . . 3
SECTION 2. Owner's Notice of Closing Date. . . . . . . . . . . . . 3
SECTION 3. [Intentionally Omitted]. . . . . . . . . . . . . . . . . 3
SECTION 4. Conditions. . . . . . . . . . . . . . . . . . . . . . . 3
(a) Conditions Precedent to Purchase of Secured
Certificates. . . . . . . . . . . . . . . . . . . . . . 3
(b) Conditions Precedent to the Obligations of the
Owner and the Guarantor . . . . . . . . . . . . . . . . 9
SECTION 5. [Intentionally Omitted] . . . . . . . . . . . . . . . . 11
SECTION 6. Extent of Interest of Certificate Holders . . . . . . . 11
SECTION 7. Representations and Warranties of the Owner and the
Guarantor; Indemnities . . . . . . . . . . . . . . . . 11
(a) Representations and Warranties . . . . . . . . . . . . . 11
(b) General Tax Indemnity. . . . . . . . . . . . . . . . . . 14
(c) General Indemnity. . . . . . . . . . . . . . . . . . . . 14
(d) Income Tax . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 8. Representations, Warranties and Covenants . . . . . . . 14
SECTION 9. Reliance of Liquidity Provider and Policy Provider . . . 25
SECTION 10. Other Documents . . . . . . . . . . . . . . . . . . . . 25
SECTION 11. Certain Covenants of the Owner . . . . . . . . . . . . . 25
SECTION 12. [Intentionally Omitted] . . . . . . . . . . . . . . . . 25
SECTION 13. Certain Definitions; Notices; Consent to
Jurisdiction . . . . . . . . . . . . . . . . . . . . . 25
SECTION 14. [Intentionally Omitted] . . . . . . . . . . . . . . . . 26
SECTION 15. Miscellaneous . . . . . . . . . . . . . . . . . . . . . 27
SECTION 16. Sale/leaseback Transaction . . . . . . . . . . . . . . . 00
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XXXXXXXXX
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SCHEDULE I - Names and Addresses
SCHEDULE II - Commitments
SCHEDULE III - Pass Through Trust Agreements
EXHIBITS
--------
Exhibit A - Schedule of Countries Authorized for
Reregistration
Exhibit B-1 - Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx,
special counsel for the Owner and the Guarantor
Exhibit B-2 - Form of Opinion of Cadwalader, Xxxxxxxxxx & Xxxx,
special counsel for the Owner and the Guarantor
Exhibit B-3 - Form of Opinion of the Owner's Legal Department
Exhibit C - Form of Opinion of counsel for the
Manufacturer [and the Supplier -- A319's only]
Exhibit D - [Intentionally Omitted]
Exhibit E-1 - [Intentionally Omitted]
Exhibit E-2 - [Intentionally Omitted]
Exhibit F - Form of Opinion of Xxxxx & Xxxxxxx, P.C.
Exhibit G - Form of Opinion of Xxxxxxx Xxxx LLP, special
counsel for the Indenture Trustee
Exhibit H-1 - [Intentionally Omitted]
Exhibit H-2 - [Intentionally Omitted]
Exhibit I - Form of Section 1110 Opinion of Cadwalader,
Xxxxxxxxxx & Xxxx, special counsel for the Owner
Exhibit J-1 - Form of Opinion of Xxxxxxx Xxxx LLP, special
counsel for the Pass Through Trustee
Exhibit J-2 - Form of Opinion of Xxxxxxx Xxxx LLP, special
counsel for the Subordination Agent
Exhibit K - Section 7(b) - General Tax Indemnity
Exhibit L - Section 7(c) - General Indemnity
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PARTICIPATION AGREEMENT
[NW ____ _]
THIS PARTICIPATION AGREEMENT [NW ____ _] dated as of
[_______________], among (i) NORTHWEST AIRLINES, INC., a Minnesota
corporation (the "Owner"), (ii) NORTHWEST AIRLINES CORPORATION, a
Delaware corporation (the "Guarantor"), (iii) STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, not in its individual
capacity except as otherwise provided herein, but solely as trustee (in
such capacity, the "Pass Through Trustee") under each of two separate
Pass Through Trust Agreements (as defined below), (iv) STATE STREET BANK
AND TRUST COMPANY, not in its individual capacity, but solely as
subordination agent and trustee (in such capacity, the "Subordination
Agent") under the Intercreditor Agreement (defined below), and (v) STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company, in its
individual capacity and as Indenture Trustee under the Trust Indenture
(as hereinafter defined) (herein, in such latter capacity together with
any successor indenture trustee, called the "Indenture Trustee") (this
"Agreement");
W I T N E S S E T H:
WHEREAS, pursuant to the Purchase Agreement between the
Owner and the [Supplier] [Manufacturer], the [Supplier] [Manufacturer]
has agreed to sell to the Owner, among other things, certain [Airbus
Industrie A319-114] [Boeing 757-251] aircraft, including the Aircraft
which has been [or is being] delivered by the [Supplier] [Manufacturer]
to the Owner and is the subject of this Agreement;
[WHEREAS, concurrently with the execution and delivery
of this Agreement, the Manufacturer and the Supplier have executed the
Manufacturer Consent and Agreement to Assignment of Warranties [NW _____
__] and the Supplier Consent and Agreement to Assignment of Warranties
[NW ____ _] (herein collectively called the "Consent and Agreement"); --
A319's]
[WHEREAS, concurrently with the execution and delivery
of this Agreement, the Manufacturer has executed the Consent and
Agreement [NW ____ _] (herein called the "Consent and Agreement"); --
757's]
WHEREAS, the Indenture Trustee and the Owner
concurrently with the execution and delivery of this Agreement are
entering into the Trust Indenture and Security Agreement [NW ____ _],
dated as of the date hereof (said Trust Indenture and Security Agreement,
as the same may be amended or supplemented from time to time, being
herein called the "Trust Indenture", such term to include, unless the
context otherwise requires, the Trust Indenture Supplement referred to
below) pursuant to which the Owner will issue secured certificates
substantially in the form set forth in Section 2.01 thereof (the "Secured
Certificates", and individually, a "Secured Certificate") in two series,
which Secured Certificates are to be secured by the mortgage and security
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interests created by the Owner in favor of the Indenture Trustee, and the
Owner shall execute and deliver a Trust Indenture Supplement
substantially in the form of Exhibit A to the Trust Indenture (the "Trust
Indenture Supplement") covering the Aircraft, supplementing the Trust
Indenture;
WHEREAS, concurrently with the execution and delivery of
this Agreement; the Guarantor is entering into a Guarantee [NW ____ _],
dated as of the date hereof, pursuant to which the Guarantor guarantees
certain obligations of the Owner under the Operative Documents (the
"Guarantee");
WHEREAS, pursuant to the Pass Through Trust Agreement
and each of the Pass Through Trust Supplements set forth in Schedule III
hereto (collectively, the "Pass Through Trust Agreements"), on the
Issuance Date two separate trusts (collectively, the "Pass Through
Trusts" and, individually, a "Pass Through Trust") were created to
facilitate the transactions contemplated hereby, including, without
limitation, the issuance and sale by each Pass Through Trust of pass
through certificates pursuant thereto (collectively, the "Certificates");
WHEREAS, the proceeds from the issuance and sale of the
Certificates by each Pass Through Trust will be applied in part by the
Pass Through Trustee on the Closing Date to purchase from the Owner, on
behalf of each Pass Through Trust, all of the Secured Certificates
bearing the same interest rate as the Certificates issued by such Pass
Through Trust;
WHEREAS, on the Issuance Date (i) Credit Suisse First
Boston, New York branch (the "Liquidity Provider") entered into two
revolving credit agreements (each, a "Liquidity Facility"), one for the
benefit of the holders of Certificates of each Pass Through Trust, with
the Subordination Agent, as agent for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, the
Liquidity Provider, the Policy Provider and the Subordination Agent
entered into the Intercreditor Agreement, dated June 28, 2000 (the
"Intercreditor Agreement");
WHEREAS, the Secured Certificates will be held by the
Subordination Agent pursuant to the Intercreditor Agreement on behalf of
the Pass Through Trusts;
WHEREAS, in order to facilitate the transactions
contemplated hereby, the Owner and the Guarantor have entered into the
Underwriting Agreement, dated as of June 21, 2000, among the Owner, the
Guarantor and the several underwriters named therein (the "Underwriting
Agreement"); and
WHEREAS, certain terms are used herein as defined in
Section 13(a) hereof;
NOW, THEREFORE, in consideration of the mutual
agreements herein contained, the parties hereto agree as follows:
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SECTION 1. Purchase of Secured Certificates by Pass
Through Trustees. (a) Purchase of Secured Certificates by Pass Through
Trustees. Subject to the terms and conditions of this Agreement, the
Pass Through Trustee for each Pass Through Trust agrees to purchase the
Secured Certificates set forth on Schedule II opposite the name of such
Pass Through Trust by paying to the Owner the aggregate purchase price of
the Secured Certificates being issued to such Pass Through Trustee as set
forth on Schedule II opposite the name of such Pass Through Trust. The
Pass Through Trustees shall make such payments to the Owner on a date to
be designated pursuant to Section 2 hereof, but in no event later than
[__________], by transferring to the account of the Owner at USBank,
Minneapolis, ABA No. 000-000-000, Account No. 1502-5009-9440,
Reference: Northwest/NW [____ __], not later than 9:30 a.m., New York
City time, on the Closing Date in immediately available funds in Dollars,
the amount set forth opposite the name of such Pass Through Trust on
Schedule II hereto.
Upon the occurrence of the above transfers by the Pass
Through Trustee for each Pass Through Trust to the Owner, the Owner shall
issue, pursuant to Article II of the Trust Indenture, to the
Subordination Agent on behalf of the Pass Through Trustee for each of the
Pass Through Trusts, Secured Certificates of the maturity and aggregate
principal amount, bearing the interest rate and for the purchase price
set forth on Schedule II hereto opposite the name of such Pass Through
Trust.
(b) [Intentionally Omitted].
(c) General Provisions. The amount of the payment
of each Pass Through Trustee to be made as provided above is hereinafter
called such party's "Commitment" for the Aircraft.
SECTION 2. Owner's Notice of Closing Date. The Owner
agrees to give the Pass Through Trustee and the Indenture Trustee at
least two Business Days' telecopy or other written notice of the Closing
Date, which Closing Date shall be a Business Day, which notice shall
specify the amount of each Pass Through Trustee's Commitment for the
Aircraft. As to each Pass Through Trustee, the making of its Commitment
for the Aircraft available in the manner required by Section 1 shall
constitute a waiver of such notice.
SECTION 3. [Intentionally Omitted].
SECTION 4. Conditions. (a) Conditions Precedent to
Purchase of Secured Certificates. It is agreed that the obligations of
each Pass Through Trustee to purchase Secured Certificates and to make
available the amount of its Commitment is subject to the satisfaction
prior to or on the Closing Date of the following conditions precedent:
(i) The Pass Through Trustee shall have received
due notice with respect to such participation pursuant to
Section 2 hereof (or shall have waived such notice either in
writing or as provided in Section 2).
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(ii) No change shall have occurred after the date of
the execution and delivery of this Agreement in applicable law
or regulations or guidelines or interpretations thereof by
appropriate regulatory authorities which would make it a
violation of law or regulations or guidelines for the Pass
Through Trustee to make its Commitment available in accordance
with Section 1 hereof.
(iii) [Intentionally Omitted].
(iv) [Intentionally Omitted].
(v) The following documents shall have been duly
authorized, executed and delivered by the respective party or
parties thereto, shall each be satisfactory in form and
substance to the Pass Through Trustee and shall be in full force
and effect and executed counterparts shall have been delivered
to the Pass Through Trustee or its counsel, provided that only
the Subordination Agent on behalf of each Pass Through Trustee
shall receive an executed original of such Pass Through
Trustee's respective Secured Certificate and provided, further,
that an excerpted copy of the Purchase Agreement shall only be
delivered to and retained by the Indenture Trustee, which copy
may be inspected and reviewed by the Indenture Trustee if and
only if there shall occur and be continuing an Event of Default:
(1) an excerpted copy of the Purchase
Agreement (insofar as it relates to the Aircraft) [and
the Guaranty -- A319's only];
(2) the Trust Indenture;
(3) the Trust Indenture Supplement covering
the Aircraft dated the Closing Date;
(4) the Secured Certificates;
(5) the Consent and Agreement;
(6) the Guarantee; and
[(7) the French Pledge Agreement. -- A319's
only]
In addition, the Pass Through Trustee shall have
received executed counterparts or conformed copies of the following
documents:
(1) each of the Pass Through Trust
Agreements;
(2) the Intercreditor Agreement; and
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(3) the Liquidity Facility for each of the
Pass Through Trusts.
(vi) A Uniform Commercial Code financing statement
or statements covering all the security interests created by or
pursuant to the Granting Clause of the Trust Indenture that are
not covered by the recording system established by the Federal
Aviation Act shall have been executed and delivered by the
Owner, and such financing statement or statements shall have
been duly filed in all places necessary or advisable, and any
additional Uniform Commercial Code financing statements deemed
advisable by the Pass Through Trustee shall have been executed
and delivered by the Owner and duly filed.
(vii) The Pass Through Trustee shall have received
the following:
(A)(1) an incumbency certificate of the Owner
and the Guarantor (as the case may be) as to the person
or persons authorized to execute and deliver this
Agreement, the Pass Through Trust Agreements, the
Guarantee and any other documents to be executed on
behalf of the Owner or the Guarantor (as the case may
be) in connection with the transactions contemplated
hereby and the signatures of such person or persons;
(2) a copy of the resolutions of the board
of directors of the Owner and the Guarantor or the
executive committee thereof, certified by the Secretary
or an Assistant Secretary of the Owner and the Guarantor
(as the case may be), duly authorizing the transactions
contemplated hereby and the execution and delivery of
each of the documents required to be executed and
delivered on behalf of the Owner or the Guarantor (as
the case may be) in connection with the transactions
contemplated hereby; and
(3) a copy of the certificate of
incorporation of the Owner and the Guarantor, certified
by the Secretary of State of the State of Minnesota in
the case of the Owner and certified by the Secretary of
State of the State of Delaware in the case of the
Guarantor, a copy of the by-laws of the Owner and the
Guarantor, certified by the Secretary or Assistant
Secretary of the Owner and the Guarantor (as the case
may be), and a certificate or other evidence from the
Secretary of State of the State of Minnesota in the case
of the Owner and from the Secretary of State of the
State of Delaware in the case of the Guarantor, dated as
of a date reasonably near the Closing Date, as to the
due incorporation and good standing of the Owner or the
Guarantor (as the case may be) in such state.
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(B)(1) an incumbency certificate of the
Indenture Trustee as to the person or persons authorized
to execute and deliver this Agreement, the Trust
Indenture and any other documents to be executed on
behalf of the Indenture Trustee in connection with the
transactions contemplated hereby and the signatures of
such person or persons;
(2) a copy of the resolutions of the board
of directors of the Indenture Trustee, certified by the
Secretary or an Assistant Secretary of the Indenture
Trustee, duly authorizing the transactions contemplated
hereby and the execution and delivery of each of the
documents required to be executed and delivered on
behalf of the Indenture Trustee in connection with the
transactions contemplated hereby;
(3) a copy of the articles of association
and by-laws of the Indenture Trustee, each certified by
the Secretary or an Assistant Secretary of the Indenture
Trustee; and
(4) a certificate signed by an authorized
officer of the Indenture Trustee, dated the Closing
Date, certifying that the representations and warranties
contained herein of the Indenture Trustee are correct as
though made on and as of the Closing Date, except to the
extent that such representations and warranties relate
solely to an earlier date (in which case such
representations and warranties are correct on and as of
such earlier date).
(viii) All appropriate action required to have been
taken prior to the Closing Date in connection with the
transactions contemplated by this Agreement shall have been
taken by the Federal Aviation Administration, or any
governmental or political agency, subdivision or instrumentality
of the United States, and all orders, permits, waivers,
authorizations, exemptions and approvals of such entities
required to be in effect on the Closing Date in connection with
the transactions contemplated by this Agreement shall have been
issued, and all such orders, permits, waivers, authorizations,
exemptions and approvals shall be in full force and effect on
the Closing Date.
(ix) On the Closing Date the Pass Through Trustee
shall have received a certificate signed by an authorized
officer of the Owner (and with respect to the matters set forth
in clause (4) below, the Guarantor) to the effect that:
(1) the Aircraft has been duly certified by
the Federal Aviation Administration as to type and has a
current certificate of airworthiness, and the Owner has
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good title to the Aircraft free and clear of Liens other
than Permitted Liens;
(2) the Trust Indenture and the Trust
Indenture Supplement covering the Aircraft shall have
been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the
Federal Aviation Administration;
(3) application for registration of the
Aircraft in the name of the Owner has been duly made
with the Federal Aviation Administration; and
(4) the representations and warranties
contained herein of the Owner and the Guarantor are
correct as though made on and as of the Closing Date,
except to the extent that such representations and
warranties (other than those contained in clause (F) of
Section 7(a)(iv)) relate solely to an earlier date (in
which case such representations and warranties were
correct on and as of such earlier date).
(x) The Owner and the Guarantor shall have entered
into the Underwriting Agreement and each of the Pass Through
Trust Agreements, the Certificates shall have been issued and
sold pursuant to the Underwriting Agreement and the Pass Through
Trust Agreements.
(xi) The Pass Through Trustee shall have received,
addressed to the Pass Through Trustee and the Indenture Trustee,
and reasonably satisfactory as to scope and substance to the
Pass Through Trustee, an opinion substantially in the form of
Exhibit B-1 hereto from Xxxxxxx Xxxxxxx & Xxxxxxxx, special
counsel for the Owner and the Guarantor, an opinion
substantially in the form of Exhibit B-2 hereto from Cadwalader,
Xxxxxxxxxx & Xxxx, special counsel for the Owner and the
Guarantor, and an opinion substantially in the form of Exhibit
B-3 hereto from the Owner's legal department.
(xii) The Pass Through Trustee shall have received,
addressed to the Pass Through Trustee, the Indenture Trustee,
the Guarantor and the Owner and reasonably satisfactory as to
scope and substance to the Pass Through Trustee, the Guarantor
and the Owner, an opinion substantially in the form of Exhibit C
hereto from [counsel to the Supplier and the Manufacturer. --
A319's] [counsel to the Manufacturer. -- 757's]
(xiii) [Intentionally Omitted].
(xiv) [Intentionally Omitted].
(xv) The Pass Through Trustee shall have received,
addressed to the Pass Through Trustee, the Indenture Trustee,
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the Guarantor and the Owner, and reasonably satisfactory as to
scope and substance to the Pass Through Trustee, the Guarantor
and the Owner, an opinion substantially in the form of Exhibit F
hereto from Xxxxx & Xxxxxxx, P.C.
(xvi) The Pass Through Trustee shall have received,
addressed to the Pass Through Trustee, the Guarantor and the
Owner, and reasonably satisfactory as to scope and substance to
the Pass Through Trustee, the Guarantor and the Owner, an
opinion substantially in the form of Exhibit G hereto from
Xxxxxxx Xxxx LLP, special counsel for the Indenture Trustee.
(xvii) [Intentionally Omitted].
(xviii) The Pass Through Trustee shall have received an
independent insurance broker's report, in form and substance
satisfactory to the Pass Through Trustee, as to the due
compliance with the terms of Section 7.04 of the Trust Indenture
relating to insurance with respect to the Aircraft.
(xix) [Intentionally Omitted].
(xx) No action or proceeding shall have been
instituted nor shall governmental action be threatened before
any court or governmental agency, nor shall any order, judgment
or decree have been issued or proposed to be issued by any court
or governmental agency at the time of the Closing Date to set
aside, restrain, enjoin or prevent the completion and
consummation of this Agreement or the transactions contemplated
hereby.
(xxi) [Intentionally Omitted].
(xxii) [Intentionally Omitted].
(xxiii) The Pass Through Trustee shall have received a
favorable opinion substantially in the form of Exhibit I hereto
addressed to the Pass Through Trustee, and reasonably
satisfactory as to scope and substance to the Pass Through
Trustee, from Cadwalader, Xxxxxxxxxx & Xxxx, special counsel for
the Owner, which opinion shall state (with customary assumptions
and qualifications) that the Indenture Trustee would be entitled
to the benefits of 11 U.S.C. Section 1110 with respect to the
Aircraft.
(xxiv) [Intentionally Omitted].
(xxv) The Pass Through Trustee shall have received,
addressed to the Pass Through Trustee, the Indenture Trustee,
the Guarantor and the Owner, and reasonably satisfactory as to
scope and substance, to the Pass Through Trustee, the Guarantor
and the Owner, an opinion substantially in the form of Exhibit J-2
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hereto from Xxxxxxx Xxxx LLP, special counsel to the
Subordination Agent.
Promptly upon the recording of the Trust Indenture and
the Trust Indenture Supplement covering the Aircraft pursuant to the
Federal Aviation Act, the Owner will cause Xxxxx & Xxxxxxx, P.C., special
counsel in Oklahoma City, Oklahoma, to deliver to the Pass Through
Trustee, the Indenture Trustee and the Owner an opinion as to the due and
valid registration of the Aircraft in the name of the Owner, the due
recording of the Trust Indenture and such Trust Indenture Supplement and
the lack of filing of any intervening documents with respect to the
Aircraft.
(b) Conditions Precedent to the Obligations of the
Owner and the Guarantor. It is agreed that the obligations of the Owner
and the Guarantor to enter into the other Operative Documents are all
subject to the fulfillment to the satisfaction of the Owner and the
Guarantor prior to or on the Closing Date of the following conditions
precedent:
(i) All appropriate action required to have been
taken on or prior to the Closing Date in connection with the
transactions contemplated by this Agreement shall have been
taken by the Federal Aviation Administration, or any
governmental or political agency, subdivision or instrumentality
of the United States, and all orders, permits, waivers,
exemptions, authorizations and approvals of such entities
required to be in effect on the Closing Date in connection with
the transactions contemplated by this Agreement shall have been
issued, and all such orders, permits, waivers, exemptions,
authorizations and approvals shall be in full force and effect
on the Closing Date.
(ii) The condition specified in Section 4(a)(ii)
hereof shall have been satisfied.
(iii) Those documents described in Section 4(a)(v)
shall have been duly authorized, executed and delivered by the
respective party or parties thereto (other than the Owner and
the Guarantor) in the manner specified in Section 4(a)(v), shall
each be satisfactory in form and substance to the Owner and the
Guarantor, shall be in full force and effect on the Closing
Date, and an executed counterpart of each thereof (other than
the Secured Certificates) shall have been delivered to the Owner
or its special counsel and the Guarantor or its special counsel.
(iv) The Owner and the Guarantor shall have received
(A) each certificate referred to in Section 4(a)(vii) (other
than the certificate referred to in clause (A) thereof), (B) a
certificate signed by an authorized officer of the Pass Through
Trustee, dated the Closing Date, certifying that the
representations and warranties contained herein of the Pass
Through Trustee are correct as though made on and as of the
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Closing Date, except to the extent that such representations and
warranties relate solely to an earlier date (in which case such
representations and warranties are correct on and as of such
earlier date), and (C)(1) an incumbency certificate of the Pass
Through Trustee as to the person or persons authorized to
execute and deliver this Agreement and any other documents to be
executed on behalf of the Pass Through Trustee in connection
with the transactions contemplated hereby and the signatures of
such person or persons; (2) a copy of the articles of
association and by-laws of the Pass Through Trustee, each
certified by the Secretary of an Assistant Secretary of the Pass
Through Trustee; and (3) such other documents and evidence with
respect to the Pass Through Trustee as the Owner or its special
counsel and the Guarantor or its special counsel may reasonably
request in order to establish the due consummation of the
transactions contemplated by this Agreement, the taking of all
necessary action in connection therewith and compliance with the
conditions herein set forth.
(v) The Owner and the Guarantor shall have received
(A) an opinion substantially in the form of Exhibit J-1 hereto
addressed to the Guarantor and the Owner of Xxxxxxx Xxxx LLP,
special counsel for the Pass Through Trustee, and reasonably
satisfactory as to scope and substance to the Guarantor and the
Owner, and (B) the opinions set forth in Sections 4(a)(xii),
4(a)(xv), 4(a)(xvi) and 4(a)(xxv) in each case addressed to the
Owner and the Guarantor and dated the Closing Date and in each
case in scope and substance reasonably satisfactory to the Owner
and its special counsel and the Guarantor and its special
counsel.
(vi) No action or proceeding shall have been
instituted nor shall governmental action be threatened before
any court or governmental agency, nor shall any order, judgment
or decree have been issued or proposed to be issued by any court
or governmental agency at the time of the Closing Date to set
aside, restrain, enjoin or prevent the completion and
consummation of this Agreement or the transactions contemplated
hereby.
(vii) No change shall have occurred after the date of
the execution and delivery of this Agreement in applicable law
or regulations or guidelines or interpretations by appropriate
regulatory authorities which would make it a violation of law or
regulations or guidelines for the Owner or the Guarantor to
enter into any transaction contemplated by the Operative
Documents.
(viii) [Intentionally Omitted].
(ix) The Owner shall have been paid by the Pass
Through Trustee for each Pass Through Trust the aggregate
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purchase price set forth on Schedule II opposite the name of
such Pass Through Trust.
SECTION 5. [Intentionally Omitted].
SECTION 6. Extent of Interest of Certificate Holders.
No Certificate Holder (as defined in the Trust Indenture) shall have any
further interest in, or other right with respect to, the mortgage and
security interests created by the Trust Indenture when and if the
principal of and interest on all Secured Certificates held by such holder
and all other sums payable to such holder hereunder, under the Trust
Indenture and under such Secured Certificates shall have been paid in
full.
SECTION 7. Representations and Warranties of the Owner
and the Guarantor; Indemnities. (a) Representations and Warranties.
The Owner and the Guarantor represent and warrant to the Pass Through
Trustee, the Indenture Trustee, the Liquidity Provider and the
Subordination Agent that as of the Closing Date:
(i) each of the Owner and the Guarantor is a
corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation, has
the corporate power and authority to own or hold under lease its
properties, has, or had on the respective dates of execution
thereof, the corporate power and authority to enter into and
perform its obligations under (i) in the case of the Owner, the
Owner Documents, the Pass Through Trust Agreements, the
Underwriting Agreement and the other Operative Documents to
which it is a party and (ii) in the case of the Guarantor, this
Agreement, the Pass Through Trust Agreements, the Underwriting
Agreement and the other Operative Documents to which it is a
party, and is duly qualified to do business as a foreign
corporation in each state in which its operations or the nature
of its business requires other than failures to so qualify which
would not have a material adverse effect on the condition
(financial or otherwise), consolidated business or properties of
it and its subsidiaries considered as one enterprise;
(ii) The Owner is a Certificated Air Carrier, and
its chief executive office (as such term is used in Article 9 of
the Uniform Commercial Code in effect in the State of Minnesota)
is located at Eagan, Minnesota;
(iii) the execution and delivery by the Owner or the
Guarantor (as the case may be) of the Owner Documents, the Pass
Through Trust Agreements, the Underwriting Agreement and each
other Operative Document to which the Owner or the Guarantor (as
the case may be) is a party, and the performance of the
obligations of the Owner or the Guarantor (as the case may be)
under the Owner Documents, the Pass Through Trust Agreements,
the Underwriting Agreement and each other Operative Document to
which the Owner or the Guarantor (as the case may be) is a
-11-
party, have been duly authorized by all necessary corporate
action on the part of the Owner or the Guarantor, do not require
any stockholder approval, or approval or consent of any trustee
or holder of any material indebtedness or material obligations
of the Owner or the Guarantor, except such as have been duly
obtained and are in full force and effect, and do not contravene
any law, governmental rule, regulation or order binding on the
Owner or the Guarantor (as the case may be) or the certificate
of incorporation or by-laws of the Owner or the Guarantor (as
the case may be), or contravene the provisions of, or constitute
a default under, or result in the creation of any Lien (other
than Permitted Liens) upon the property of the Owner or the
Guarantor (as the case may be) under, any indenture, mortgage,
contract or other agreement to which the Owner or the Guarantor
(as the case may be) is a party or by which it may be bound or
affected which contravention, default or Lien, individually or
in the aggregate, would be reasonably likely to have a material
adverse effect on the condition (financial or otherwise),
business or properties of the Guarantor and its subsidiaries
considered as one enterprise;
(iv) neither the execution and delivery by the Owner
or the Guarantor (as the case may be) of the Owner Documents,
the Pass Through Trust Agreements, the Underwriting Agreement or
any other Operative Document to which the Owner or the Guarantor
(as the case may be) is a party, nor the performance of the
obligations of the Owner or the Guarantor (as the case may be)
under the Owner Documents, the Pass Through Trust Agreements,
the Underwriting Agreement or the other Operative Documents to
which the Owner or the Guarantor (as the case may be) is a
party, requires the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in
respect of, the Department of Transportation, the FAA, or any
other federal, state or foreign governmental authority having
jurisdiction over the Owner or the Guarantor, other than (A) the
registration of the Certificates under the Securities Act of
1933, as amended, and under the securities laws of any state in
which the Certificates may be offered for sale if the laws of
such state require such action, (B) the qualification of the
Pass Through Trust Agreements under the Trust Indenture Act of
1939, as amended, pursuant to an order of the Securities and
Exchange Commission, (C) the orders, permits, waivers,
exemptions, authorizations and approvals of the regulatory
authorities having jurisdiction over the operation of the
Aircraft by the Owner or any Lessee required to be obtained on
or prior to the Closing Date, which orders, permits, waivers,
exemptions, authorizations and approvals have been duly obtained
and are, or on the Closing Date will be, in full force and
effect (other than a flying time wire, all steps to obtain the
issuance of which will have been, on the Closing Date, taken or
caused to be taken by the Owner), (D) the registration of the
Aircraft referred to in Section 4(a)(ix)(3), (E) the
registrations and filings referred to in Section 7(a)(vi), and
-12-
(F) authorizations, consents, approvals, actions, notices and
filings required to be obtained, taken, given or made either
only after the date hereof or the failure of which to obtain,
take, give or make would not be reasonably likely to have a
material adverse effect on the condition (financial or
otherwise), business or properties of the Guarantor and its
subsidiaries considered as one enterprise;
(v) this Agreement, each of the other the Owner
Documents, the Pass Through Trust Agreements and the Guarantee
constitute the legal, valid and binding obligations of the Owner
or the Guarantor (as the case may be) enforceable against the
Owner or the Guarantor (as the case may be) in accordance with
their respective terms, except as the same may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting the rights
of creditors or lessors generally and by general principles of
equity, whether considered in a proceeding at law or in equity,
and except, in the case of the Trust Indenture, as limited by
applicable laws which may affect the remedies provided in the
Trust Indenture, which laws, however, do not make the remedies
provided in the Trust Indenture inadequate for practical
realization of the benefits intended to be afforded thereby;
(vi) except for (A) the filing for recording
pursuant to the Federal Aviation Act of a xxxx of sale on AC
form 8050-2 (or such other form as may be approved by the FAA)
relating to the Aircraft from the [Supplier] [Manufacturer] to
the Owner, (B) the registration of the Aircraft pursuant to the
Federal Aviation Act, (C) the filing for recording pursuant to
the Federal Aviation Act of [(x) the termination of the Mortgage
and (y)] the Trust Indenture and the Trust Indenture Supplement
covering the Aircraft attached thereto and made a part thereof,
(D) the filing of financing statements (and continuation
statements at periodic intervals) with respect to the security
interests created by such documents under the Uniform Commercial
Code of Minnesota and such other states as may be specified in
the opinions furnished pursuant to Section 4(a)(xi) hereof [and
the filing of a UCC-3 termination statement relating to the
financing statement filed in connection with the Mortgage], and
(E) the taking of possession by the Indenture Trustee of the
original counterparts of the Trust Indenture and the Trust
Indenture Supplement covering the Aircraft, no further filing or
recording of any document (including any financing statement in
respect thereof under Article 9 of the Uniform Commercial Code
of any applicable jurisdiction) is necessary under the laws of
the United States of America or any State thereof in order to
perfect the security interest in favor of the Indenture Trustee
in the Aircraft as against the Owner and any third parties in
any applicable jurisdiction in the United States;
(vii) neither the Owner, the Guarantor nor any of
their affiliates has directly or indirectly offered the
-13-
Certificates for sale to any Person other than in a manner
permitted by the Securities Act of 1933, as amended, and by the
rules and regulations thereunder;
(viii) neither the Owner nor the Guarantor is an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended;
(ix) no event has occurred and is continuing which
constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time
lapse or both;
(x) no event has occurred and is continuing which
constitutes an Event of Loss or would constitute an Event of
Loss with the lapse of time;
(xi) the Owner is solvent and has no intention or
belief that it is about to incur debts beyond its ability to pay
as they mature;
(xii) none of the proceeds from the issuance of the
Secured Certificates will be used directly or indirectly by the
Owner to purchase or carry any "margin security" as such term is
defined in Regulation U of the Board of Governors of the Federal
Reserve System; and
(xiii) On the Closing Date, all sales or use tax then
due and for which the Owner is responsible pursuant to Section
7(b)(i) hereof shall have been paid, other than such taxes which
are being contested by the Owner in good faith and by
appropriate proceedings so long as such proceedings do not
involve any material risk of the sale, forfeiture or loss of the
Aircraft.
(b) General Tax Indemnity. Exhibit K, which is a
complete statement of the provisions of Section 7(b), is incorporated
herein in its entirety as if fully set forth herein.
(c) General Indemnity. Exhibit L, which is a
complete statement of the provisions of Section 7(c), is incorporated
herein in its entirety as if fully set forth herein.
(d) Income Tax. For purposes of this Section 7,
the term "Income Tax" means any Tax based on or measured by gross or net
income or receipts (other than sales, use, license or property Taxes or
Taxes in the nature thereof) (including, without limitation, capital
gains taxes, minimum taxes, income taxes collected by withholding and
taxes on tax preference items), and Taxes which are capital, doing
business, excess profits or net worth taxes and interest, additions to
tax, penalties, or other charges in respect thereof.
-14-
SECTION 8. Representations, Warranties and Covenants.
(a) [Intentionally Omitted].
(b) [Intentionally Omitted].
(c) [Intentionally Omitted].
(d) [Intentionally Omitted].
(e) Each Loan Participant represents and warrants
that neither it nor anyone acting in its behalf has offered any Secured
Certificates for sale to, or solicited any offer to buy any Secured
Certificate from, any Person other than in a manner in compliance with,
and which does not require registration under, the Securities Act of
1933, as amended, or the rules and regulations thereunder.
(f) The Indenture Trustee agrees that the Owner may
elect to effect a change in registration of the Aircraft, at the Owner's
cost and expense, so long as (a) the country of registry of the Aircraft
is a country listed on Exhibit A hereto and (b) the following conditions
are met: (i) unless the country of registry is Taiwan, the United States
maintains normal diplomatic relations with the country of registry of the
Aircraft, and if the country of registry is Taiwan, the United States
maintains diplomatic relations at least as good as those in effect on the
Closing Date; and (ii) the Indenture Trustee shall have received a
favorable opinion (subject to customary exceptions) addressed to the
Indenture Trustee, from counsel of recognized reputation qualified in the
laws of the relevant jurisdiction to the effect that:
(A) the Owner's ownership interest in the Aircraft
shall be recognized under the laws of such jurisdiction, (B) the
obligations of the Owner, and the rights and remedies of the
Indenture Trustee, under the Trust Indenture shall remain valid,
binding and (subject to customary bankruptcy and equitable
remedies exceptions and to other exceptions customary in foreign
opinions generally) enforceable under the laws of such
jurisdiction (or the laws of the jurisdiction to which the laws
of such jurisdiction would refer as the applicable governing
law), (C) after giving effect to such change in registration,
the Lien of the Trust Indenture on the Owner's right, title and
interest in and to the Aircraft shall continue as a valid and
duly perfected first priority security interest and all filing,
recording or other action necessary to protect the same shall
have been accomplished (or, if such opinion cannot be given at
the time of such proposed change in registration because such
change in registration is not yet effective, (1) the opinion
shall detail what filing, recording or other action is necessary
and (2) the Indenture Trustee shall have received a certificate
from the Owner that all possible preparations to accomplish such
filing, recording and other action shall have been done, and
such filing, recording and other action shall be accomplished
and a supplemental opinion to that effect shall be delivered to
the Indenture Trustee on or prior to the effective date of such
change in registration), (D) it is not necessary, solely as a
-15-
consequence of such change in registration and without giving
effect to any other activity of the Indenture Trustee (or any
Affiliate thereof) for the Indenture Trustee to qualify to do
business in such jurisdiction, (E) there is no tort liability of
the owner of an aircraft not in possession thereof under the
laws of such jurisdiction (it being agreed that, in the event
such latter opinion cannot be given in a form satisfactory to
the Indenture Trustee, such opinion shall be waived if insurance
reasonably satisfactory to the Indenture Trustee is provided to
cover such risk), and (F) (unless the Owner shall have agreed to
provide insurance covering the risk of requisition of use of
such Aircraft by the government of such jurisdiction so long as
such Aircraft is registered under the laws of such jurisdiction)
the laws of such jurisdiction require fair compensation by the
government of such jurisdiction payable in currency freely
convertible into Dollars for the loss of use of such Aircraft in
the event of the requisition by such government of such use.
In addition, as a condition precedent to any such change in registration,
the Owner shall furnish to the Indenture Trustee an Officer's Certificate
to the effect that the insurance required by Section 7.04 of the Trust
Indenture shall be in full force and effect at the time of such change in
registration after giving effect to such change in registration and that
the new country of registry imposes aircraft maintenance standards not
materially different from those of the United States, France, Germany,
Japan, the Netherlands or the United Kingdom. The Owner shall pay all
costs, expenses, fees, recording and registration taxes, including the
reasonable fees and expenses of counsel to the Indenture Trustee, and
other charges in connection with any such change in registration.
(g) Each Loan Participant and each of the Indenture
Trustee, the Subordination Agent and each Pass Through Trustee covenants
and agrees that, so long as no Event of Default shall have occurred and
be continuing and the Owner has not been duly declared in default and,
notwithstanding default by any Loan Participant, the Indenture Trustee,
any Pass Through Trustee or the Subordination Agent, that such Person
shall not (and shall not permit any Affiliate or other Person claiming
by, through or under it to) interfere with the Owner's continued
possession, use and operation of, and quiet enjoyment of, the Aircraft.
(h) [Intentionally Omitted].
(i) State Street Bank and Trust Company, in its
individual capacity, covenants and agrees that it shall not cause or
permit to exist any Lien, arising as a result of (A) claims against the
Indenture Trustee not related to its interest in the Aircraft or the
administration of the Collateral pursuant to the Trust Indenture, (B)
acts of the Indenture Trustee not permitted by, or failure of the
Indenture Trustee to take any action required by, the Operative Documents
to the extent such acts arise or such failure arises from or constitutes
gross negligence or willful misconduct, (C) claims against the Indenture
Trustee relating to Taxes or Expenses which are excluded from the
indemnification provided by Section 7 pursuant to said Section 7, or (D)
-16-
claims against the Indenture Trustee arising out of the transfer by the
Indenture Trustee of all or any portion of its interest in the Aircraft,
the Collateral or the Operative Documents other than a transfer of the
Aircraft pursuant to Article IV of the Trust Indenture while an Event of
Default is continuing and prior to the time that the Indenture Trustee
has received all amounts due pursuant to the Trust Indenture.
(j) [Intentionally Omitted].
(k) Each Loan Participant represents and warrants
that the Secured Certificate to be issued to it pursuant to the Trust
Indenture is being acquired by it for investment and not with a view to
resale or distribution (it being understood that such Loan Participant
may pledge or assign as security its interest in each Secured Certificate
issued to it), provided that the disposition of its property shall at all
times be and remain within its control, except that the Loan Participants
may sell, transfer or otherwise dispose of any Secured Certificate or any
portion thereof, or grant participations therein, in a manner which in
itself does not require registration under the Securities Act of 1933, as
amended.
(l) [Intentionally Omitted].
(m) State Street Bank and Trust Company represents,
warrants and covenants, in its individual capacity, to the Owner, the
Guarantor, the Pass Through Trustee, the Subordination Agent and the
Liquidity Provider as follows:
(i) it is a Massachusetts trust company duly
incorporated, validly existing and in good standing under the
laws of Massachusetts, is a Citizen of the United States
(without making use of any voting trust, voting powers agreement
or similar arrangement), will notify promptly all parties to
this Agreement if in its reasonable opinion its status as a
Citizen of the United States (without making use of any voting
trust, voting powers agreement or similar arrangement) is likely
to change and will resign as Indenture Trustee as provided in
Section 9.01 of the Trust Indenture promptly after it obtains
actual knowledge that it has ceased to be such a Citizen of the
United States (without making use of a voting trust, voting
powers agreement or similar arrangement), and has the full
corporate power, authority and legal right under the laws of the
Commonwealth of Massachusetts and the United States pertaining
to its banking, trust and fiduciary powers to execute and
deliver each of this Agreement, the Trust Indenture and each
other Operative Document to which it is a party and to carry out
its obligations under this Agreement, the Trust Indenture, each
other Operative Document to which it is a party and to
authenticate the Secured Certificates;
(ii) the execution and delivery by the Indenture
Trustee of the Indenture Trustee Documents and the
authentication of the Secured Certificates and the performance
-17-
by the Indenture Trustee of its obligations under the Indenture
Trustee Documents have been duly authorized by the Indenture
Trustee and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract
or other agreement to which it is a party or by which it is
bound;
(iii) this Agreement and each of the other Indenture
Trustee Documents constitute the legal, valid and binding
obligations of the Indenture Trustee enforceable against it in
accordance with their respective terms, except as the same may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(iv) there are no pending or, to its knowledge,
threatened actions or proceedings against the Indenture Trustee,
either in its individual capacity or as Indenture Trustee,
before any court or administrative agency which, if determined
adversely to it, would materially adversely affect the ability
of the Indenture Trustee, in its individual capacity or as
Indenture Trustee as the case may be, to perform its obligations
under the Operative Documents to which it is a party; and
(v) there are no Indenture Trustee's Liens on the
Aircraft or any other portion of the Collateral.
(n) [Intentionally Omitted].
(o) [Intentionally Omitted].
(p) State Street Bank and Trust Company, in its
individual capacity, agrees for the benefit of the Owner to comply with
the terms of the Trust Indenture which it is required to comply with in
its individual capacity.
(q) Each Loan Participant agrees that it will not
transfer any Secured Certificate (or any part thereof) to any entity
unless such entity makes (or is deemed to have made) a representation and
warranty as of the date of transfer that either no part of the funds to
be used by it for the purchase and holding of such Secured Certificate
(or any part thereof) constitutes assets of any "employee benefit plan"
or that such purchase and holding will not result in a non-exempt
prohibited transaction (under Section 4975 of the Code and Section 406 of
ERISA).
(r) Each Loan Participant and the Indenture Trustee
agrees for the benefit of the Manufacturer and the Owner that it will not
disclose or suffer to be disclosed the terms of the Purchase Agreement to
any third party except (A) as may be required by any applicable statute,
court or administrative order or decree or governmental ruling or
regulation or to any regulatory authorities having official jurisdiction
-18-
over them, (B) in connection with the financing of the Aircraft and the
other transactions contemplated by the Operative Documents (including any
transfer of Secured Certificates (including by way of participation or
assignment of an interest, provided such participant or assignee agrees
to hold such terms confidential to the same extent as herein provided)
and any exercise of remedies under the Trust Indenture), (C) with the
prior written consent of the Manufacturer and the Owner, or (D) to the
Indenture Trustee's and each Loan Participant's counsel or special
counsel, independent insurance brokers or other agents who agree to hold
such information confidential.
(s) [Intentionally Omitted].
(t) Each Loan Participant covenants and agrees that
it shall not cause or permit to exist a Loan Participant Lien
attributable to it with respect to the Aircraft or any other portion of
the Collateral. Each Loan Participant agrees that it will promptly, at
its own expense, take such other action as may be necessary duly to
discharge such Loan Participant Lien attributable to it. Each Loan
Participant agrees to make restitution to the Owner for any damages or
expenses of the Owner resulting from such Loan Participant Lien
attributable to it.
(u) State Street Bank and Trust Company, in its
individual capacity, covenants and agrees that it shall not cause or
permit to exist any Indenture Trustee's Liens with respect to the
Collateral. State Street Bank and Trust Company, in its individual
capacity, agrees that it will promptly, at its own expense, take such
action as may be necessary duly to discharge such Indenture Trustee's
Liens. State Street Bank and Trust Company, in its individual capacity,
agrees to make restitution to the Owner for any actual diminution of the
assets of the Collateral resulting from such Indenture Trustee's Liens.
(v) [Intentionally Omitted].
(w) [Intentionally Omitted].
(x) [Intentionally Omitted].
(y) (A) The Owner will not consolidate with or
merge into any other corporation or convey, transfer or lease
substantially all of its assets as an entirety to any Person unless:
(i) the corporation formed by such consolidation or
into which the Owner is merged or the Person which acquires by
conveyance, transfer or lease substantially all of the assets of
the Owner as an entirety shall be a Certificated Air Carrier;
(ii) the corporation formed by such consolidation or
into which the Owner is merged or the Person which acquires by
conveyance, transfer or lease substantially all of the assets of
the Owner as an entirety shall execute and deliver to the
Indenture Trustee an agreement in form and substance reasonably
-19-
satisfactory to the Indenture Trustee containing an assumption
by such successor corporation or Person of the due and punctual
performance and observance of each covenant and condition of
this Agreement, the Trust Indenture and the Secured Certificates
to be performed or observed by the Owner;
(iii) immediately after giving effect to such
transaction, no Default or Event of Default under the Trust
Indenture shall have occurred and be continuing; and
(iv) The Owner shall have delivered to the Indenture
Trustee a certificate signed by the President, any Executive
Vice President, any Senior Vice President, the Treasurer or any
Vice President and by the Secretary or an Assistant Secretary of
the Owner, and an opinion of counsel reasonably satisfactory to
the Indenture Trustee, each stating that such consolidation,
merger, conveyance, transfer or lease and the assumption
agreement mentioned in clause (ii) above comply with this
subparagraph (A) of Section 8(y) and that all conditions
precedent herein provided for relating to such transaction have
been complied with.
Upon any such consolidation or merger or any such
conveyance, transfer or lease of substantially all of the assets of the
Owner as an entirety in accordance with this subparagraph (A) of Section
8(y), the successor corporation or Person formed by such consolidation or
into which the Owner is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Owner under this Agreement with the same
effect as if such successor corporation or Person had been named as the
Owner herein. No such conveyance, transfer or lease of substantially all
of the assets of the Owner as an entirety shall have the effect of
releasing the Owner or any successor corporation or Person which shall
theretofore have become such in the manner prescribed in this
subparagraph (A) of Section 8(y) from its liability in respect of any
Operative Document to which it is a party.
(B) The Owner shall at all times maintain
its corporate existence except as permitted by subparagraph (A) of this
Section 8(y).
(z) The Owner, at its expense, will take, or cause
to be taken, such action with respect to the recording, filing, re-
recording and refiling of the Trust Indenture, the Trust Indenture
Supplement and any financing statements or other instruments as are
necessary to maintain, so long as the Trust Indenture is in effect, the
perfection of the security interests created by the Trust Indenture or
will furnish to the Indenture Trustee timely notice of the necessity of
such action, together with such instruments, in execution form, and such
other information as may be required to enable it to take such action.
The Owner will notify the Indenture Trustee of any change in the location
of its chief executive office (as such term is used in Article 9 of the
Uniform Commercial Code) promptly after making such change or in any
-20-
event within the period of time necessary under applicable law to prevent
the lapse of perfection (absent refiling) of financing statements filed
under the Operative Documents.
(aa) [Intentionally Omitted].
(bb) [Intentionally Omitted].
(cc) Each Loan Participant hereby represents,
warrants and agrees that it shall not transfer any interest in any
Secured Certificate unless and until the transferee agrees in writing
(copies of which shall be provided by the Indenture Trustee to the Owner)
to make the representations contemplated to be made by a Loan Participant
in this Agreement and to be bound by the terms of this Agreement and the
Trust Indenture (including, without limitation, the representations and
covenants set forth in Sections 8(e), 8(k), 8(l), 8(q), and 8(t) hereof
and this Section 8(cc) and Section 2.03 of the Trust Indenture).
(dd) The Pass Through Trustee represents and
warrants to the Owner, the Guarantor, the Indenture Trustee, the
Subordination Agent and the Liquidity Provider, in its capacity as such
and in its individual capacity, as follows:
(i) the Pass Through Trustee is a duly organized
national banking association, validly existing and in good
standing with the Comptroller of the Currency under the laws of
the United States, has the full power, authority and legal right
under the laws of the United States pertaining to its banking,
trust and fiduciary powers to execute and deliver each of the
Pass Through Trust Agreements, the Intercreditor Agreement and
this Agreement and to perform its obligations under the Pass
Through Trust Agreements, the Intercreditor Agreement and this
Agreement, and has its chief executive office located in
Hartford, Connecticut;
(ii) this Agreement, each of the Pass Through Trust
Agreements and the Intercreditor Agreement have been duly
authorized, executed and delivered by the Pass Through Trustee;
this Agreement, each of the Pass Through Trust Agreements and
the Intercreditor Agreement constitute the legal, valid and
binding obligations of the Pass Through Trustee enforceable
against it in accordance with their respective terms, except as
the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights
of creditors generally and by general principles of equity,
whether considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance
by the Pass Through Trustee of any of the Pass Through Trust
Agreements, the Intercreditor Agreement or this Agreement, the
purchase by the Pass Through Trustee of the Secured Certificates
pursuant to this Agreement, or the issuance of the Certificates
pursuant to the Pass Through Trust Agreements, contravenes any
-21-
law, rule or regulation of the State of Connecticut or any
United States governmental authority or agency regulating the
Pass Through Trustee's banking, trust or fiduciary powers or any
judgment or order applicable to or binding on the Pass Through
Trustee and does not contravene or result in any breach of, or
constitute a default under, the Pass Through Trustee's articles
of association or by-laws or any agreement or instrument to
which the Pass Through Trustee is a party or by which it or any
of its properties may be bound;
(iv) neither the execution and delivery by the Pass
Through Trustee of any of the Pass Through Trust Agreements, the
Intercreditor Agreement or this Agreement, nor the consummation
by the Pass Through Trustee of any of the transactions
contemplated hereby or thereby, requires the consent or approval
of, the giving of notice to, the registration with, or the
taking of any other action with respect to, any Connecticut
governmental authority or agency or any federal governmental
authority or agency regulating the Pass Through Trustee's
banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Pass Through
Trustee imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by the Pass Through Trustee
of this Agreement, any of the Pass Through Trust Agreements or
the Intercreditor Agreement (other than franchise or other taxes
based on or measured by any fees or compensation received by the
Pass Through Trustee for services rendered in connection with
the transactions contemplated by any of the Pass Through Trust
Agreements), and there are no Taxes payable by the Pass Through
Trustee imposed by the State of Connecticut or any political
subdivision thereof in connection with the acquisition,
possession or ownership by the Pass Through Trustee of any of
the Secured Certificates (other than franchise or other taxes
based on or measured by any fees or compensation received by the
Pass Through Trustee for services rendered in connection with
the transactions contemplated by any of the Pass Through Trust
Agreements), and, assuming that for federal income tax purposes
the trusts created by the Pass-Through Trust Agreements will not
be taxable as corporations, but rather, each will be
characterized as a grantor trust under subpart E, Part I, of
Subchapter J of the Code or as a partnership, such trusts will
not be subject to any Taxes imposed by the State of Connecticut
or any political subdivision thereof;
(vi) there are no pending or threatened actions or
proceedings against the Pass Through Trustee before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect
the ability of the Pass Through Trustee to perform its
obligations under this Agreement, the Intercreditor Agreement or
any Pass Through Trust Agreement;
-22-
(vii) except for the issue and sale of the
Certificates, the Pass Through Trustee has not directly or
indirectly offered any Secured Certificate for sale to any
Person or solicited any offer to acquire any Secured
Certificates from any Person, nor has the Pass Through Trustee
authorized anyone to act on its behalf to offer directly or
indirectly any Secured Certificate for sale to any Person, or to
solicit any offer to acquire any Secured Certificate from any
Person; and the Pass Through Trustee is not in default under any
Pass Through Trust Agreement; and
(viii) the Pass Through Trustee is not directly or
indirectly controlling, controlled by or under common control
with any Underwriter, the Owner or the Guarantor.
(ee) The Subordination Agent represents and warrants
to the Owner, the Guarantor, the Indenture Trustee, the Pass Through
Trustee and the Liquidity Provider in its capacity as such and in its
individual capacity, as follows:
(i) the Subordination Agent is duly incorporated,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, and has the full corporate power,
authority and legal right under the laws of the Commonwealth of
Massachusetts and the United States pertaining to its banking,
trust and fiduciary powers to execute and deliver each of the
Liquidity Facilities, the Intercreditor Agreement and this
Agreement and to perform its obligations under this Agreement,
the Liquidity Facilities and the Intercreditor Agreement;
(ii) this Agreement, each of the Liquidity
Facilities and the Intercreditor Agreement have been duly
authorized, executed and delivered by the Subordination Agent;
this Agreement, each of the Liquidity Facilities and the
Intercreditor Agreement constitute the legal, valid and binding
obligations of the Subordination Agent enforceable against it in
accordance with their respective terms, except as the same may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance
by the Subordination Agent of each of the Liquidity Facilities,
the Intercreditor Agreement or this Agreement contravenes any
law, rule or regulation of the Commonwealth of Massachusetts or
any United States governmental authority or agency regulating
the Subordination Agent's banking, trust or fiduciary powers or
any judgment or order applicable to or binding on the
Subordination Agent and do not contravene or result in any
breach of, or constitute a default under, the Subordination
Agent's articles of association or by-laws or any agreement or
-23-
instrument to which the Subordination Agent is a party or by
which it or any of its properties may be bound;
(iv) neither the execution and delivery by the
Subordination Agent of any of the Liquidity Facilities, the
Intercreditor Agreement or this Agreement nor the consummation
by the Subordination Agent of any of the transactions
contemplated hereby or thereby requires the consent or approval
of, the giving of notice to, the registration with, or the
taking of any other action with respect to, any Massachusetts
governmental authority or agency or any federal governmental
authority or agency regulating the Subordination Agent's
banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Subordination
Agent imposed by the Commonwealth of Massachusetts or any
political subdivision or taxing authority thereof in connection
with the execution, delivery and performance by the
Subordination Agent of this Agreement, any of the Liquidity
Facilities or the Intercreditor Agreement (other than franchise
or other taxes based on or measured by any fees or compensation
received by the Subordination Agent for services rendered in
connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities), and
there are no Taxes payable by the Subordination Agent imposed by
the Commonwealth of Massachusetts or any political subdivision
thereof in connection with the acquisition, possession or
ownership by the Subordination Agent of any of the Secured
Certificates (other than franchise or other taxes based on or
measured by any fees or compensation received by the
Subordination Agent for services rendered in connection with the
transactions contemplated by the Intercreditor Agreement or any
of the Liquidity Facilities);
(vi) there are no pending or threatened actions or
proceedings against the Subordination Agent before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect
the ability of the Subordination Agent to perform its
obligations under this Agreement, the Intercreditor Agreement or
any Liquidity Facility;
(vii) the Subordination Agent has not directly or
indirectly offered any Secured Certificate for sale to any
Person or solicited any offer to acquire any Secured
Certificates from any Person, nor has the Subordination Agent
authorized anyone to act on its behalf to offer directly or
indirectly any Secured Certificate for sale to any Person, or to
solicit any offer to acquire any Secured Certificate from any
Person; and the Subordination Agent is not in default under any
Liquidity Facility; and
-24-
(viii) the Subordination Agent is not directly or
indirectly controlling, controlled by or under common control
with any Underwriter, the Owner or the Guarantor.
SECTION 9. Reliance of Liquidity Provider and Policy
Provider. Each of the parties hereto agrees and acknowledges that the
Liquidity Provider and the Policy Provider shall be a third party
beneficiary of each of the representations and warranties made herein by
such party, and that the Liquidity Provider and the Policy Provider may
rely on such representations and warranties to the same extent as if such
representations and warranties were made to the Liquidity Provider and
the Policy Provider directly. The Owner agrees and acknowledges that the
Liquidity Provider and the Policy Provider shall each be a third party
beneficiary of the indemnities contained in Section 7(c) hereof and that
the Policy Provider shall be a third party beneficiary of the indemnities
contained in Section 7(b) hereof, and may rely on such indemnities to the
same extent as if such indemnities were made to the Liquidity Provider
and the Policy Provider directly.
SECTION 10. Other Documents. The Indenture Trustee
agrees to promptly furnish to the Owner copies of any supplement,
amendment or waiver or modification of any of the Operative Documents to
which the Owner is not a party. Each Loan Participant agrees that it
will not take any action in respect of the Collateral except through the
Indenture Trustee pursuant to the Trust Indenture or as otherwise
permitted by the Trust Indenture.
SECTION 11. Certain Covenants of the Owner. The Owner
covenants and agrees with each of the Loan Participants and the Indenture
Trustee:
(a) The Owner will cause to be done, executed,
acknowledged and delivered all and every such further acts, conveyances
and assurances as the Indenture Trustee shall reasonably require for
accomplishing the purposes of this Agreement and the other Operative
Documents; provided that any instrument or other document so executed by
the Owner will not expand any obligations or limit any rights of the
Owner in respect of the transactions contemplated by any Operative
Documents.
(b) The Owner will cause the Trust Indenture, all
supplements and amendments to the Trust Indenture and this Agreement to
be promptly filed and recorded, or filed for recording, to the extent
permitted under the Federal Aviation Act, or required under any other
applicable law. Upon the execution and delivery of the Trust Indenture,
the Trust Indenture and the Trust Indenture Supplement covering the
Aircraft shall be filed for recording with the Federal Aviation
Administration.
SECTION 12. [Intentionally Omitted].
SECTION 13. Certain Definitions; Notices; Consent to
Jurisdiction. (a) Except as otherwise defined in this Agreement, terms
-25-
used herein in capitalized form shall have the meanings attributed
thereto in the Annex A to the Trust Indenture. Unless the context
otherwise requires, any reference herein to any of the Operative
Documents refers to such document as it may be amended from time to time.
(b) All notices, demands, instructions and other
communications required or permitted to be given to or made upon any
party hereto or to the Guarantor shall be in writing and shall be
personally delivered or sent by registered or certified mail, postage
prepaid, or by telecopier, or by prepaid courier service, and shall be
deemed to be given for purposes of this Agreement on the day that such
writing is delivered or sent to the intended recipient thereof in
accordance with the provisions of this Section 13(b). Unless otherwise
specified in a notice sent or delivered in accordance with the foregoing
provisions of this Section 13(b), notices, demands, instructions and
other communications in writing shall be given to or made upon the
respective parties hereto at their respective addresses (or to their
respective telecopier numbers) as follows: (A) if to the Owner, the
Guarantor, the Pass Through Trustee, the Subordination Agent or the
Indenture Trustee, to the respective addresses set forth below the
signatures of such parties at the foot of this Agreement, or (B) if to
any subsequent Certificate Holder, addressed to such Certificate Holder
at its address set forth in the Secured Certificate register maintained
pursuant to Section 2.07 of the Trust Indenture.
(c) Each of the parties hereto (A) hereby
irrevocably submits itself to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and to
the non-exclusive jurisdiction of the Supreme Court of the State of New
York, New York County, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any other Operative Document,
the subject matter of any thereof or any of the transactions contemplated
hereby or thereby brought by any party or parties thereto, or their
successors or assigns, and (B) hereby waives, and agrees not to assert,
by way of motion, as a defense, or otherwise, in any such suit, action or
proceeding, to the extent permitted by applicable law, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue
of the suit, action or proceeding is improper, or that this Agreement or
any other Operative Document or the subject matter of any thereof or any
of the transactions contemplated hereby or thereby may not be enforced in
or by such courts. The Owner hereby generally consents to service of
process at Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Managing Attorney, or such office of the Owner in
New York City as from time to time may be designated by the Owner in
writing to the Indenture Trustee.
SECTION 14. [Intentionally Omitted].
-26-
SECTION 15. Miscellaneous.
(a) [Intentionally Omitted].
(b) The representations, warranties, indemnities
and agreements of the Owner, the Guarantor, the Indenture Trustee, the
Subordination Agent and the Pass Through Trustee provided for in this
Agreement, and the Owner's, the Guarantor's, the Indenture Trustee's, the
Subordination Agent's and the Pass Through Trustee's obligations under
any and all thereof, shall survive the making available of the
Commitments by each Pass Through Trustee, the transfer of any interest by
any Loan Participant in any Secured Certificate or the Collateral and the
expiration or other termination of this Agreement or any other Operative
Document.
(c) This Agreement 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. Neither this Agreement nor
any of the terms hereof may be terminated, amended, supplemented, waived
or modified, except by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement,
waiver or modification is sought; and no such termination, amendment,
supplement, waiver or modification shall be effective unless a signed
copy thereof shall have been delivered to the Indenture Trustee. The
terms of this Agreement shall be binding upon, and inure to the benefit
of, the Owner and, subject to the terms of this Agreement, its successors
and permitted assigns, the Guarantor, the Pass Through Trustee and its
successors as Pass Through Trustee (and any additional trustee appointed)
under any of the Pass Through Trust Agreements, each Certificate Holder
and its successors and registered assigns and the Indenture Trustee and
its successors as Indenture Trustee under the Trust Indenture. The terms
of this Agreement shall inure to the benefit of the Liquidity Provider,
its successors and permitted assigns and to the Policy Provider, its
successors and assigns. THIS AGREEMENT SHALL IN ALL RESPECTS 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
AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK.
(d) [Intentionally Omitted].
(e) It is the intention of the parties hereto that
the Indenture Trustee will be entitled to the benefits of 11 U.S.C.
Section 1110 in the event of any reorganization of the Owner under
Chapter 11 of the Bankruptcy Code.
SECTION 16. Sale/leaseback Transaction.
Notwithstanding anything to the contrary contained herein or any other
Operative Document, upon not less than __ days prior written notice to
the parties hereto, the Owner shall have the right to sell the Aircraft
and transfer title to the Aircraft to an owner trustee for the benefit of
an owner participant (which shall be a "Transferee" (as defined in the
form of Leased Aircraft Participation Agreement (as such term is defined
-27-
in the Note Purchase Agreement)) in a transaction in which such owner
trustee assumes all of the obligations of the Owner under the Secured
Certificates and the Trust Indenture on a non-recourse basis (with the
Owner being released from such obligations, except to the extent accrued
prior thereto), leases the Aircraft to the Owner and assigns such lease
to the Indenture Trustee pursuant to an amended and restated trust
indenture (a "Sale/Leaseback Transaction"). In connection with such
Sale/Leaseback Transaction, each of the parties hereto and each
Certificate Holder will execute and deliver appropriate documentation
permitting the owner trustee to assume the obligations of the Owner under
the Secured Certificates and the Trust Indenture on a non-recourse basis,
releasing the Owner from all obligations in respect of the Secured
Certificates and the Trust Indenture (except to the extent accrued prior
thereto), and take all other actions as are reasonably necessary to
permit such assumption by the owner trustee. In connection with any such
Sale/Leaseback Transaction, the parties agree that (a) the documents to
be utilized shall be (i) an amended and restated participation agreement
[NW ____ __] amending and restating the Participation Agreement, such
amended and restated participation agreement to be substantially in the
form of the Leased Aircraft Participation Agreement (as such term is
defined in the Note Purchase Agreement), among the parties hereto, any
Certificate Holder which is not a party hereto and the owner trustee and
owner participant, with (x) such changes to such form to reflect the
assumption of the Secured Certificates by the owner trustee on a non-
recourse basis rather than the issuance thereof by the owner trustee and
purchase thereof by the Purchasers and also to reflect the release of the
Owner from all obligations under the Secured Certificates and the Trust
Indenture (except to the extent accrued prior thereto) and (y) such other
changes as may be permitted in accordance with the Note Purchase
Agreement applicable to the revision of the Leased Aircraft Participation
Agreement in connection with a leveraged lease transaction, (ii) a lease
agreement [NW ____ __], such lease agreement to be substantially in the
form of the Lease (as such term is defined in the Note Purchase
Agreement), between the Owner and the owner trustee with such changes as
may be permitted in accordance with the provisions of the Note Purchase
Agreement applicable to the revision of the Lease in connection with a
leveraged lease transaction, (iii) an amended and restated trust
indenture [NW ____ __] amending and restating the Trust Indenture, such
amended and restated trust indenture to be substantially in the form of
the Leased Aircraft Indenture (as such term is defined in the Note
Purchase Agreement), between the owner trustee and the Indenture Trustee,
with (x) such changes to such form to reflect the assumption of all of
the obligations of the Owner under the Secured Certificates and the Trust
Indenture on a non-recourse basis and a release of the Contract Rights
from the Granting Clause of the Trust Indenture and (y) such other
changes as may be permitted in accordance with the Note Purchase
Agreement applicable to the revision of the Leased Aircraft Indenture in
connection with a leveraged lease transaction, (iv) a purchase agreement
assignment [NW ____ ___], such purchase agreement assignment to be
substantially in the form of the Aircraft Purchase Agreement Assignment
(as such term is defined in the Note Purchase Agreement) between the
Owner and the owner trustee with such changes as may be permitted in
accordance with the provisions of the Note Purchase Agreement applicable
-28-
to the Aircraft Purchase Agreement Assignment in connection with a
leveraged lease transaction, (v) a trust agreement [NW ____ __], such
trust agreement to be substantially in the form of the Leased Aircraft
Trust Agreement (as such term is defined in the Note Purchase Agreement),
between the owner trustee and the owner participant with such changes as
may be permitted in accordance with the provisions of the Note Purchase
Agreement applicable to the Leased Aircraft Trust Agreement in connection
with a leveraged lease transaction, and (vi) an amended and restated
guarantee [NW ____ __] amending and restating the Guarantee, such amended
and restated guarantee to be substantially in the form of the Leased
Aircraft Guarantee (as such term is defined in the Note Purchase
Agreement) with such changes as may be permitted in accordance with the
Note Purchase Agreement applicable to the Leased Aircraft Guarantee in
connection with a leveraged lease transaction and (b) the Secured
Certificates shall be delivered to the Indenture Trustee for cancellation
in exchange for new secured certificates to be issued to the Certificate
Holders by the owner trustee, such new secured certificate to be
substantially in the form contained in Section 2.01 of the Leased
Aircraft Indenture (as such term is defined in the Note Purchase
Agreement). Such new secured certificates will have the same payment
terms as the Secured Certificates except that in the event that the Owner
enters into a Sale/Leaseback Transaction prior to October 1, 2001, the
Owner shall have the right to reoptimize the new secured certificates to
be issued to the Certificate Holders by the owner trustee in compliance
with the Mandatory Economic Terms (as such term is defined in the Note
Purchase Agreement). Notwithstanding the foregoing, the Owner shall not
have the right to enter into a Sale/Leaseback Transaction unless the
Owner causes to be delivered to the Indenture Trustee (a) an opinion of
counsel to the effect that the Certificate Holders will not recognize
income, gain or loss for federal income tax purposes as a result of such
assumption and release and will be subject to federal income tax in the
same amounts, in the same manner and at the same time as would have been
the case if such assumption and release had not occurred (other than such
change in amount, manner and timing of interest that results from any
reoptimization of the new secured certificates permitted pursuant to this
Section 16) and that the Pass Through Trusts will not be subject to
federal income taxation as a result of such assumption and release and
(b) written confirmation from Xxxxx'x Investors Services, Inc. and
Standard & Poor's Ratings Services, a division of XxXxxx-Xxxx, Inc., that
the Sale/Leaseback Transaction and/or reoptimization of the new secured
certificates in connection therewith will not result in a withdrawal,
suspension or downgrading of the ratings of any class of Pass Through
Certificates (without regard to the Policy (as such term is defined in
the Policy Provider Agreement)).
-29-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
NORTHWEST AIRLINES, INC.,
Owner
By:____________________________________________
Name:
Title:
Address: U.S. Mail
0000 Xxxxxxxxx Xxxxx (X0000)
Xx. Xxxx, Xxxxxxxxx 00000-0000
Overnight Courier
0000 Xxxx Xxx Xxxxxxx (X0000)
Xxxxx, Xxxxxxxxx 00000
Attn: Treasurer
Telecopy No.: (000) 000-0000
NORTHWEST AIRLINES CORPORATION,
Guarantor
By:____________________________________________
Name:
Title:
Address: U.S. Mail
0000 Xxxxxxxxx Xxxxx (X0000)
Xx. Xxxx, Xxxxxxxxx 00000-0000
Overnight Courier
0000 Xxxx Xxx Xxxxxxx (X0000)
Xxxxx, Xxxxxxxxx 00000
Attn: Treasurer
Telecopy No.: (000) 000-0000
-00-
XXXXX XXXXXX XXXX AND TRUST COMPANY,
Indenture Trustee
By:____________________________________________
Name:
Title:
Address: U.S. Mail
Corporate Trust Department
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Overnight Courier
Corporate Trust Department
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as otherwise provided herein,
but solely as Pass Through Trustee,
Pass Through Trustee
By:____________________________________________
Name:
Title:
Address: 000 Xxxxxx Xxxxxx, Xxxxxxx Square
Hartford, CT 06103
Attn: Corporate/Muni Department
Telecopy No.: (000) 000-0000
-00-
XXXXX XXXXXX XXXX AND TRUST COMPANY,
not in its individual capacity,
except as otherwise provided herein,
but solely as Subordination Agent,
Subordination Agent
By:____________________________________________
Name:
Title:
Address: U.S. Mail
Corporate Trust Department
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Overnight Courier
Corporate Trust Department
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
-32-
SCHEDULE I
Names and Addresses
-------------------
Owner: Northwest Airlines, Inc.
U.S. Mail
0000 Xxxxxxxxx Xxxxx (X0000)
Xx. Xxxx, Xxxxxxxxx 00000-0000
Overnight Courier
0000 Xxxx Xxx Xxxxxxx (X0000)
Xxxxx, Xxxxxxxxx 00000
Attn: Treasurer
Telecopy No.: (000) 000-0000
Wire Transfer
USBank, Minneapolis
ABA No. 000000000
Acct. No. 150250099440
Indenture Trustee: State Street Bank and Trust Company
U.S. Mail
Corporate Trust Department
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Overnight Courier
Corporate Trust Department
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
Wire Transfer
State Street Bank and Trust Company
ABA No. 000-000-000
for credit to State Street Bank and
Trust Company
Acct. No. 0000-000-0
Attn: Corporate Trust Department
Reference: Northwest/NW [____ _]
Loan Participant: State Street Bank and Trust Company
of Connecticut, National Association
000 Xxxxxx Xxxxxx, Xxxxxxx Square
Hartford, CT 06103
Attn: Corporate/Muni Department
Telecopy No.: (000) 000-0000
Subordination Agent: State Street Bank and Trust Company
U.S. Mail
Corporate Trust Department
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Overnight Courier
Corporate Trust Department
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
SCHEDULE II
Commitments
-----------
Interest Rate
Purchasers and Maturity Purchase Price
---------- ------------- --------------
Northwest Airlines
Pass Through Trust
2000-1G 8.072% Series G Secured $[___________]
Certificates due [___________]
2000-1C 9.179% Series C Secured $[___________]
Certificates due [___________]
SCHEDULE III
Pass Through Trust Agreements
-----------------------------
1. Pass Through Trust Agreement, dated as of June 3, 1999, among
Northwest Airlines Corporation, Northwest Airlines, Inc., and
State Street Bank and Trust Company of Connecticut, National
Association, as supplemented by Trust Supplement No. 2000-1G,
dated as of June 28, 2000 among Northwest Airlines, Inc.,
Northwest Airlines Corporation and State Street Bank and Trust
Company of Connecticut, National Association.
2. Pass Through Trust Agreement, dated as of June 3, 1999, among
Northwest Airlines Corporation, Northwest Airlines, Inc., and
State Street Bank and Trust Company of Connecticut, National
Association, as supplemented by Trust Supplement No. 2000-1C,
dated as of June 28, 2000 among Northwest Airlines, Inc.,
Northwest Airlines Corporation and State Street Bank and Trust
Company of Connecticut, National Association.
EXHIBIT A
TO PARTICIPATION
AGREEMENT
[NW ____ _]
SCHEDULE OF COUNTRIES FOR REREGISTRATION
----------------------------------------
Argentina Malta
Australia Mexico
Austria Morocco
Bahamas Netherlands
Belgium New Zealand
Brazil Norway
Canada Paraguay
Chile People's Republic of China
Denmark Philippines
Egypt Portugal
Finland Republic of China (Taiwan)
France Singapore
Germany South Africa
Greece South Korea
Hungary Spain
Iceland Sweden
India Switzerland
Indonesia Thailand
Ireland Trinidad and Tobago
Italy United Kingdom
Japan Uruguay
Luxembourg Venezuela
Malaysia
Exhibit B-1 to Participation Agreement
--------------------------------------
[Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
special counsel for the Owner and the Guarantor]
[________ ___, ____]
The Persons Listed on
Annex A hereto
Ladies and Gentlemen:
We have acted as counsel to Northwest Airlines Corporation, a
Delaware corporation ("NWA Corp."), and Northwest Airlines, Inc., a
Minnesota corporation (the "Company"), in connection with the issuance
and sale of (i) $476,319,000 aggregate principal amount of 8.072% Pass
Through Trust Certificates, Series 2000-1G (the "Class G Certificates")
and (ii) $45,882,000 aggregate principal amount of 9.179% Pass Through
Trust Certificates, Series 2000-1C (the "Class C Certificates" and,
together with the Class G Certificates, the "Certificates") pursuant to
the Underwriting Agreement, dated as of June 21, 2000 (the "Underwriting
Agreement"), by and among Credit Suisse First Boston Corporation, Xxxxxx
Xxxxxxx & Co. Incorporated, Xxxxxxx Xxxxx Barney Inc., Chase Securities
Inc. and U.S. Bancorp Xxxxx Xxxxxxx Inc., as underwriters, the Company
and NWA Corp. Capitalized terms used herein unless otherwise defined
herein have the respective meanings given them in the Underwriting
Agreement.
In connection with this opinion we have examined the
following:
(i) the Pass Through Trust Agreement dated as of June 3, 1999
by and among NWA Corp., the Company and State Street Bank and Trust
Company of Connecticut, National Association ("State Street"), as
trustee (the "Trustee") (the "Basic Agreement");
(ii) the Trust Supplement No. 2000-1G, dated as of June 28,
2000, to the Basic Agreement, by and among NWA Corp., the Company
and the Trustee (the Basic Agreement as so supplemented, the "2000-
1G Pass Through Trust Agreement"); and the Trust Supplement
No. 2000-1C, dated as of June 28, 2000, to the Basic Agreement, by
and among NWA Corp., the Company and the Trustee (the Basic
Agreement as so supplemented, the "2000-1C Pass Through Trust
Agreement" and, together with the 2000-1G Pass Through Trust
Agreement, the "Pass Through Trust Agreements"; the Pass Through
Trust Agreement related to a Certificate being referred to as the
"Applicable Pass Through Trust Agreement");
(iii) the Intercreditor Agreement dated as of June 28,
2000 (the "Intercreditor Agreement"), by and among the Trustee,
Credit Suisse First Boston, New York branch (the "Liquidity
Provider"), State Street Bank and Trust Company, not in its
individual capacity, except as set forth therein, but solely as
subordination agent (the "Subordination Agent"), and MBIA Insurance
Corporation;
(iv) the Revolving Credit Agreement, Class G Certificates and
the Revolving Credit Agreement, Class C Certificates (collectively,
the "Liquidity Facilities"), each dated as of June 28, 2000, by and
between the Subordination Agent and the Liquidity Provider; and
(v) the Indemnity Agreement, dated as of June 28, 2000,
between ABN AMRO Bank, N.V., and the Company.
Unless otherwise indicated, "Pass Through Documents" refers to
the documents described in (i) and (ii) above.
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing, and upon
originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of public
officials and of officers and representatives of the Company and NWA
Corp., and have made such other and further investigations, as we have
deemed relevant and necessary as a basis for the opinions hereinafter set
forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of originals of such latter documents.
In addition, for purposes of this opinion we have assumed the
following:
(a) each of the Company and the Trustee has been duly
incorporated and, since the date of execution of each Pass Through
Document, has been validly existing and in good standing as a corporation
and trust company, respectively, under the laws of the jurisdiction of
its incorporation and qualification, respectively;
(b) each of the Company and the Trustee has duly authorized,
executed and delivered each Pass Through Document to which it is a party;
(c) each of the Company and the Trustee has full power,
authority and legal right to enter into and perform its respective
obligations under, and consummate the transactions contemplated by, each
Pass Through Document to which it is a party;
(d) the execution, delivery and performance of the Pass
Through Documents by the Company and the Trustee do not violate the laws
of the jurisdiction in which each entity is organized or any other
applicable laws, excepting the laws of the State of New York and the
General Corporation Law of the State of Delaware; and
-2-
(e) the execution, delivery and performance of the Pass
Through Documents by the Company and the Trustee do not constitute a
breach or violation of any agreement or instrument which is binding upon
such entity.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion that:
1. The Basic Agreement and each Pass Through Trust
Agreement have been duly authorized, executed and delivered by NWA
Corp. and, assuming due authorization, execution and delivery
thereof by the Company and the Trustee, constitute valid and
legally binding obligations of NWA Corp., the Company and the
Trustee in accordance with their terms.
2. The Basic Agreement has been duly qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
3. Assuming the Certificates have been duly authorized,
executed, authenticated and issued by the Trustee, upon payment and
delivery therefor in accordance with the Underwriting Agreement,
the Certificates will constitute valid and legally binding
obligations of the Trustee enforceable against the Trustee in
accordance with their terms and entitled to the benefits of the
Applicable Pass Through Trust Agreement.
4. No consent, approval, authorization, order,
registration or qualification of or with any Federal or New York
governmental agency or body or any Delaware governmental agency or
body acting pursuant to the Delaware General Corporation Law or, to
our knowledge, any Federal or New York court or any Delaware court
acting pursuant to the Delaware General Corporation Law is required
for the valid authorization, issuance and delivery of the
Certificates, the valid authorization, execution and delivery by
the Company or NWA Corp. of, and the performance by the Company and
NWA Corp. of their respective obligations under, the Basic
Agreement, the Pass Through Trust Agreements and the Underwriting
Agreement, except such as have been obtained and made under the
Securities Act and the Trust Indenture Act and such as may be
required under state securities laws or the Federal Aviation Act of
1958, as amended (the "Federal Aviation Act").
Our opinions set forth in paragraphs 1 and 3 above are subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law), an implied
covenant of good faith and fair dealing and, in the case of
indemnification and contribution provisions therein, considerations of
public policy.
-3-
Our opinion is subject to the following additional
qualifications:
(a) We express no opinion with respect to the rights of any
party to collect or enforce, any insurance maintained by the Company, any
proceeds thereof or payments or refunds of any premiums in respect
thereof.
(b) We express no opinion with respect to matters governed by
the Federal Aviation Act and the rules and regulations promulgated
thereunder.
(c) The remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding therefor may
be brought.
We are members of the Bar of the State of New York and we do
not express any opinion herein concerning any law other than the law of
the State of New York and the Delaware General Corporation Law.
This opinion letter is rendered to you in connection with the
above described transactions. This opinion letter may not be relied upon
by you for any other purpose, or relied upon by, or furnished to, any
other person, firm or corporation without our prior written consent.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXX
-4-
Annex A
-------
State Street Bank and Trust Company, as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association,
as Pass Through Trustee
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
MBIA Insurance Corporation
-5-
Exhibit B-2 to Participation Agreement
--------------------------------------
[Form of Opinion of Cadwalader, Xxxxxxxxxx & Xxxx,
Special Counsel for the Owner and the Guarantor]
[Date]
TO THE ADDRESSEES LISTED
ON SCHEDULE A HERETO
Re: Northwest Airlines, Inc. [NW ______]
Opinion of Special Counsel to the Owner and Guarantor
-----------------------------------------------------
Gentlemen:
We have acted as special counsel for Northwest Airlines, Inc.,
a Minnesota corporation (the "Owner") and Northwest Airlines Corporation,
a Delaware corporation ("Guarantor"), in connection with the transactions
contemplated by the Participation Agreement [NW ______], dated as of
[___________ ___, ___] (the "Participation Agreement"), among the Owner,
Guarantor, State Street Bank and Trust Company of Connecticut, National
Association, as Pass Through Trustee under each of the Pass Through Trust
Agreements referred to therein, State Street Bank and Trust Company, as
Subordination Agent, and State Street Bank and Trust Company, as
Indenture Trustee under the Indenture referred to therein. Capitalized
terms used herein but not defined herein have the respective meanings
given to them in or by reference to the Participation Agreement, unless
the context otherwise requires. We are rendering this opinion letter to
you at the request of the Owner pursuant to Section 4(a)(xi) of the
Participation Agreement.
In rendering the opinions set forth below, we have examined
and relied upon the originals, copies or specimens, certified or
otherwise identified to our satisfaction, of the Transaction Documents
(as defined below) and such certificates, corporate and public records,
agreements and instruments and other documents, including, among other
things, the documents delivered on the date hereof, as we have deemed
appropriate as a basis for the opinions expressed below. In such
examination we have assumed the genuineness of all signatures, the
authenticity of all documents, agreements and instruments submitted to us
as originals, the conformity to original documents, agreements and
instruments of all documents, agreements and instruments submitted to us
as copies or specimens, the authenticity of the originals of such
documents, agreements and instruments submitted to us as copies or
specimens, and the accuracy of the matters set forth in the documents,
agreements and instruments we reviewed. We have also assumed that the
Owner is an "air carrier" within the meaning of the Federal Aviation Act.
As to any facts material to such opinions that were not known to us, we
have relied upon statements and representations of officers and other
representatives of the Owner, Guarantor and the other parties to the
Operative Documents and of public officials. Except as expressly set
forth herein, we have not undertaken any independent investigation
(including, without limitation, conducting any review, search or
investigation of any public files, records or dockets) to determine the
existence or absence of the facts that are material to our opinions, and
no inference as to our knowledge concerning such facts should be drawn
from our reliance on the representations and warranties of the Owner,
Guarantor and the other parties to the Operative Documents contained in
the Participation Agreement and the other Operative Documents (including,
without limitation, in Sections 7 and 8 of the Participation Agreement)
in connection with the preparation and delivery of this letter.
In particular, we have examined and relied upon:
A. the Participation Agreement;
B. the Trust Indenture;
C. the Trust Indenture Supplement
D. the Secured Certificates;
E. the Consent and Agreement; and
F. the Guarantee.
Items A to F above are referred to in this letter as the
"Transaction Documents". References in this letter to "Applicable Laws"
shall mean those laws, rules and regulations of the State of New York
which, in our experience, are normally applicable to transactions of the
type contemplated by the Transaction Documents. References in this
letter to the term "Governmental Authorities" means executive,
legislative, judicial, administrative or regulatory bodies of the State
of New York. References in this letter to the term "Governmental
Approval" means any consent, approval, license, authorization or
validation of, or filing, recording or registration with, any
Governmental Authority pursuant to Applicable Laws.
We have also assumed that all documents, agreements and
instruments have been duly authorized, executed and delivered by all
parties thereto, that all such parties had the power and legal right to
execute and deliver all such documents, agreements and instruments, and
that such documents, agreements and instruments are (other than with
respect to the Owner and Guarantor) valid, binding and enforceable
obligations of such parties. As used herein, "to our knowledge", "known
to us" or words of similar import mean the actual knowledge, without
independent investigation, of any lawyer in our firm actively involved in
the transactions contemplated by the Participation Agreement.
We express no opinion concerning the laws of any jurisdiction
other than the laws of the State of New York and the federal laws of the
United States of America.
Based upon and subject to the foregoing, and subject further
to the assumptions, limitations and qualifications set forth below, we
are of opinion that:
1. The execution and delivery by the Owner of the
Participation Agreement, the Secured Certificates, the Trust Indenture
and the Trust Indenture Supplement (collectively, the "Owner Documents")
and the performance by the Owner of its obligations thereunder (a) do not
require any Governmental Approval to be obtained on the part of the
Owner, except those that have been obtained and, to our knowledge, are in
effect, and those required by the terms of the Operative Documents after
the Delivery Date, and (b) do not result in a violation of any provision
of any Applicable Laws applicable to the Owner.
2. The execution and delivery by Guarantor of its
obligations under the Guarantee and the performance by Guarantor of its
obligations thereunder (a) do not require any Governmental Approval to be
obtained on the part of Guarantor, except those that have been obtained
and, to our knowledge, are in effect, and those required by the terms of
the Operative Documents after the Delivery Date, and (b) do not result in
a violation of any provision of any Applicable Laws applicable to
Guarantor.
3. Each of the Owner Documents constitutes a legal, valid
and binding agreement of the Owner, enforceable against the Owner in
accordance with its terms and the Guarantee constitutes a legal, valid
and binding agreement of Guarantor enforceable against Guarantor in
accordance with its terms, in each case subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium,
receivership or other similar laws relating to or affecting creditors' or
lessors' rights generally, and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity) and requirements of commercial reasonableness, good faith and
fair dealing, and to applicable laws which may affect the remedies
provided in the Trust Indenture, which laws, however, do not, in our
opinion, make the remedies provided in the Trust Indenture inadequate for
the practical realization of the benefits provided thereby, except that
no opinion is expressed as to the amount or priority of any recovery
under any particular circumstances, and except that the enforcement of
rights with respect to indemnification may be limited by considerations
of public policy.
4. Subject to the registration of the Aircraft with the Federal
Aviation Administration in the name of the Owner, and assuming the due
and timely filing or filing for recordation in accordance with the
provisions of the Federal Aviation Act of (A) a xxxx of sale on AC form
8050-2 (or such other form as may be approved by the FAA) relating to the
Aircraft from the [Supplier] [Manufacturer] to the Owner, [(B) the
termination of the Mortgage,] and (C) the Trust Indenture and the Trust
Indenture Supplement covering the Aircraft attached thereto and made a
part thereof, with respect to such portion of the Aircraft as is covered
by the recording system established by the Federal Aviation
Administration pursuant to Section 44107 of Title 49 of the United States
Code by virtue of the same constituting an "aircraft" or an "aircraft
engine" as defined in the Federal Aviation Act, no further filing or
recording of any document (including any financing statement with respect
to the Trust Indenture under Article 9 of the Uniform Commercial Code of
Minnesota) is necessary in any applicable jurisdiction within the United
States in order to create and perfect the Indenture Trustee's security
interest in such portion of the Aircraft as against the Owner or any
third parties. With respect to such portion of the Trust Indenture
Estate, if any, as may not be deemed to constitute an "aircraft" or
"aircraft engine" as defined in the Federal Aviation Act, except for the
filing of financing statements in the appropriate filing offices in the
State of Minnesota (as to the filing of which we refer you to the opinion
of corporate counsel of the Owner, delivered to you on the date hereof)
and the filing of periodic continuation statements with respect to such
filings, as and when required, under the federal laws of the United
States and the laws of the State of New York, no filing or recording of
any document (including any financing statement) is necessary or
advisable under Article 9 of the Uniform Commercial Code in order to
create or perfect the Indenture Trustee's security interest in such
portion of the Trust Indenture Estate as against the Owner and any third
parties in any applicable jurisdiction within the United States. The
Trust Indenture creates for the benefit of the Indenture Trustee a valid
security interest in the Trust Indenture Estate to the extent a security
interest may be created therein under the Uniform Commercial Code as in
effect in the State of New York (the "NYUCC").
In rendering the opinions expressed herein, we have relied
exclusively, and without independent investigation, on the opinion (being
furnished to you today) of Xxxxx & Xxxxxxx, P.C., referred to in Section
4(a)(xv) of the Participation Agreement, as to all matters stated in such
opinion (including the qualifications and exceptions therein).
In addition, in rendering our opinions expressed herein, we
have assumed that except for the filings and recordations contemplated or
referred to herein, [other than the Mortgage, and UCC-1 financing
statement filed in the Office of the Secretary of State of the State of
Minnesota on [__________], filing number [__________], naming the Owner
as Debtor and [____________________], as Secured Party (as to which a
UCC-3 termination statement is being filed on the date hereof),] there
are no filings or recordations with respect to the Trust Indenture or the
Trust Indenture Supplement with the Federal Aviation Administration, or
of Uniform Commercial Code financing statements naming the Owner as a
debtor in respect of all or any portion of the Trust Indenture Estate
(other than any such financing statements as have been filed therein in
favor of the Indenture Trustee as secured party under the Trust
Indenture) in the filing offices of the Secretary of State of the State
of Minnesota or in any other filing office in the State of Minnesota. We
have also assumed that each of the documents and Uniform Commercial Code
financing statements referred to in Paragraph 4 above to be recorded with
the Federal Aviation Administration or filed with the appropriate filing
office in the State of Minnesota was in due form for such recording or
filing and that each of the above-mentioned documents has been duly and
timely recorded or filed, as the case may be, under the Federal Aviation
Act and under the laws of the State of Minnesota. We have further
assumed that as to such portion of the Trust Indenture Estate as is in
existence on the date hereof, the Owner has rights therein and value has
been given, in each case within the meaning of Section 9-203 of the
NYUCC. Except as expressly set forth in paragraph 4 above, we express no
opinion as to the right, title or interest in or to the Collateral on the
part of any Person. We express no opinion herein as to: (A) any section
of any Operative Document relating to concepts of "severability" of
certain provisions in such Operative Document; (B) any provision in any
Operative Document insofar as it constitutes: (i) a waiver of forum non
conveniens in respect of any court other than the Supreme Court of the
State of New York; or (ii) a waiver of the right to object to improper
venue in respect of any court other than the Supreme Court of the State
of New York; (C) the effect of any law of any jurisdiction (other than
the State of New York) wherein any Certificate Holder may be located that
limits rates of interest, fees or other charges that may be charged by
such Certificate Holder; and (D) any provision contained in the Operative
Documents relating to jurisdiction or service of process other than in
respect of the courts of the State of New York or the courts of the
United States of America located in the State of New York. Moreover, the
opinions expressed herein relating to the enforceability of any agreement
or instrument are subject to the further qualification that no opinion is
expressed as to the specific remedy or remedies that any court,
governmental authority, board of arbitration or arbitrator may grant,
impose or render under particular circumstances. In particular, no
opinion is expressed concerning the availability of equitable remedies,
as such, for the enforcement of any provision of any such agreement or
instrument.
Finally, we call to your attention that, in connection with
our opinions expressed above, we do not purport to be experts with
respect to, or express any opinion concerning, aviation law or other
laws, rules or regulations applicable to the particular nature of the
equipment acquired by the Owner, as contemplated in the Operative
Documents, and which may require the consent or approval of, the giving
of notice to, the registration with or the taking of any other action in
respect of, any federal or state governmental authority in connection
with the operation or maintenance of such equipment on an ongoing basis,
in accordance with the Owner's or Guarantor's undertakings in the
Operative Documents. Further, we do not purport to give any opinion
regarding the securities laws in any jurisdiction or with respect to the
Employee Retirement Income Security Act of 1974, as amended. All
references in this opinion letter to federal laws are to the federal laws
of the United States of America. We express no opinions except as
expressly set forth herein, and no opinion is implied or may be inferred
beyond the opinions expressly stated herein.
We are furnishing this opinion letter to you solely for your
benefit in connection with the transactions referred to herein. This
opinion letter is not to be relied upon, used, circulated, quoted or
otherwise referred to by any person or entity for any other purpose
without our prior written consent. In addition, we disclaim any
obligation to update this opinion letter for changes in fact or law, or
otherwise.
Very truly yours,
SCHEDULE A
----------
State Street Bank and Trust Company of Connecticut, National Association,
as Pass Through Trustee
State Street Bank and Trust Company, as Indenture Trustee
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Chase Securities Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
Exhibit B-3 to Participation Agreement
--------------------------------------
[Form of Opinion of Northwest]
[Date]
TO THE ADDRESSEES LISTED
ON SCHEDULE A HERETO
Re: Northwest Airlines, Inc. [NW ____ __]
Opinion of Counsel to the Owner and Guarantor
---------------------------------------------
Gentlemen:
I act as legal counsel for Northwest Airlines, Inc., a
Minnesota corporation (the "Owner"), and Northwest Airlines Corporation,
a Delaware corporation ("Guarantor"), and in such capacity am familiar
with the transactions contemplated by the Participation Agreement [NW
____ __], dated as of [________ __, ___] (the "Participation Agreement"),
among the Owner, Guarantor, State Street Bank and Trust Company of
Connecticut, National Association, as Pass Through Trustee under each of
the Pass Through Trust Agreements referred to therein, State Street Bank
and Trust Company, as Subordination Agent, and State Street Bank and
Trust Company, as Indenture Trustee under the Indenture referred to
therein. Capitalized terms used herein without definition shall have the
respective meanings ascribed to them in or by reference to the
Participation Agreement, unless the context otherwise requires. This
opinion is delivered pursuant to Section 4(a)(xi) of the Participation
Agreement.
In rendering this opinion, I, or lawyers under my direction,
have examined, among other things, executed counterparts of the
Participation Agreement, the Trust Indenture, the Trust Indenture
Supplement, the Secured Certificates, the Consent and Agreement and the
Guarantee. As to any facts material to my opinions expressed herein, I
have relied upon the representations and warranties contained in the
Operative Documents (including, without limitation, in Sections 7 and 8
of the Participation Agreement) and upon originals or copies (certified
or otherwise identified to my satisfaction) of such corporate records,
documents and other instruments as, in my judgment, are necessary or
appropriate to enable me to render this opinion. I have assumed, and
have not independently verified, the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, the
conformity with the originals of all documents submitted to me as copies,
and the accuracy of all factual statements of parties made on or before
the date hereof (and have relied thereon as I have deemed appropriate).
Based upon and subject to the foregoing, and subject further
to the assumptions, limitations and qualifications set forth below, it is
my opinion that:
1. The Owner is a corporation duly organized and validly
existing pursuant to the laws of the State of Minnesota, has the
corporate power and authority to carry on its business as now conducted
and to enter into and perform its obligations under the Participation
Agreement, the Secured Certificates, the Trust Indenture and the Trust
Indenture Supplement (collectively, the "Owner Documents"), and is duly
qualified to transaction business in each jurisdiction in which the
conduct of its business requires such qualification, except to the extent
that the failure to be so qualified would not have a material adverse
effect on the Owner and its subsidiaries, taken as a whole. The Owner is
a Certificated Air Carrier. Guarantor is a corporation duly organized
and validly existing pursuant to the laws of the State of Delaware and
has the corporate power and authority to enter into and perform its
obligations under the Guarantee.
2. The execution, delivery and performance of the Owner
Documents by the Owner and of the Guarantee by Guarantor have been duly
authorized by all necessary corporate action on the part of the Owner and
Guarantor, as the case may be, do not require any approval of
stockholders of the Owner or Guarantor, as the case may be, or, to my
knowledge after due inquiry and investigation, any approval or consent of
any trustee of holders of any indebtedness or obligations of the Owner or
Guarantor, as the case may be (other than any such approval or consent as
has been obtained), and the execution and delivery of any thereof by the
Owner or Guarantor, as the case may be, nor the performance by the Owner
or Guarantor, as the case may be, of its obligations thereunder does not
(A) violate any law, governmental rule or regulation or, to my knowledge
after due inquiry and investigation, judgment or order applicable to or
binding on the Owner or Guarantor, as the case may be, or (B) to my
knowledge after due inquiry and investigation, violate or result in any
breach of, or constitute any default under or result in the creation of
any Lien (other than Permitted Liens) upon any property of the Owner or
Guarantor, as the case may be, under, (i) the Owner's or Guarantor's
corporate charter or by-laws or (ii) any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or credit
agreement, or any other agreement or instrument, or permit issued by any
Minnesota or United States governmental authority to which the Owner or
Guarantor, as the case may be, is a party or by which the Owner or
Guarantor, as the case may be, or its properties may be bound or
affected.
3. Neither the execution and delivery by the Owner of any of
the Owner Documents or by Guarantor of the Guarantee, nor the performance
by the Owner or Guarantor of their respective obligations thereunder,
requires the consent or approval of, or the giving of notice to, or the
registration with, or the taking of any other action in respect of, any
federal or state governmental authority in the United States, except for
(A) the registration of the Aircraft (including the placement on board of
the owner's copy of the application for registration of the Aircraft and,
if necessary, a flying time wire), recordations, and other actions
referred to in Paragraph 5 below, and (B) such consents, approvals,
notices, registrations and other actions required by the terms of the
Owner Documents or the Guarantee after the Closing Date.
4. The Guarantee has been duly entered into and delivered by
Guarantor, and each of the Owner Documents has been duly entered into and
delivered by the Owner.
5. Subject to the registration of the Aircraft with the
Federal Aviation Administration in the name of the Owner, and assuming
the due and timely filing for recordation in accordance with the
provisions of the Federal Aviation Act of (A) a xxxx of sale on AC form
8050-2 (or such other form as may be approved by the FAA) relating to the
Aircraft from the [Supplier] [Manufacturer] to the Owner, (B) the
termination of the Mortgage, and (C) the Trust Indenture, with the Trust
Indenture Supplement covering the Aircraft attached thereto and made a
part thereof, with respect to such portion of the Aircraft as is covered
by the recording system established by the Federal Aviation
Administration pursuant to Section 44107 of Title 49 of the United States
Code by virtue of the same constituting an "aircraft" or an "aircraft
engine" as defined in the Federal Aviation Act, no further filing or
recording of any document (including any financing statement with respect
to the Trust Indenture under Article 9 of the Uniform Commercial Code of
Minnesota) is necessary in any applicable jurisdiction within the United
States in order to create and perfect the Indenture Trustee's security
interest in such portion of the Aircraft as against the Owner or any
third parties. With respect to such portion of the Trust Indenture
Estate, if any, as may not be deemed to constitute an "aircraft" or
"aircraft engine," as defined in the Federal Aviation Act, except for the
filing of financing statements in the appropriate filing offices in the
State of Minnesota, which filing has been made, and the filing of
periodic continuation statements with respect to such filings, as and
when required, under Minnesota law no filing or recording of any document
(including any financing statement) is necessary under Article 9 of the
Uniform Commercial Code in order to create or perfect the Indenture
Trustee's security interest in such portion of the Trust Indenture Estate
as against the Owner and any third parties in any applicable jurisdiction
within the United States.
6. There are no legal or governmental proceedings pending
or, to the best of my knowledge, threatened to which the Owner or
Guarantor or any of their respective subsidiaries is a party or to which
any of the properties of the Owner or Guarantor or any of their
respective subsidiaries is subject other than those proceedings
summarized in the Guarantor's publicly filed annual, quarterly and other
reports filed with the Securities and Exchange Commission, and
proceedings which I believe would not reasonably be expected to have a
material adverse effect on the Owner and its subsidiaries, taken as a
whole, or on the power or ability of the Owner to perform its obligations
under the Owner Documents.
In rendering the opinions expressed herein, I have relied
exclusively, and without independent investigation, on the opinion (being
furnished to you today) of Xxxxx & Xxxxxxx, P.C., referred to in Section
4(a)(xv) of the Participation Agreement, as to all matters stated in such
opinion, including the qualifications and exceptions therein.
In addition, in rendering the opinions expressed herein, I
have assumed that each agreement referred to herein constitutes the
legal, valid and binding obligation of each party thereto, other than the
Owner and Guarantor, enforceable against each such party in accordance
with its terms. I have also assumed that, except for the filings and
recordations contemplated or referred to herein, [other than the Mortgage
and a UCC-1 financing statement filed in the Office of the Secretary of
State of the State of Minnesota on [___________], filing number
[_____________], naming the Owner as Debtor and [__________________], as
Secured Party (as to which a UCC-3 termination statement is being filed
on the date hereof),] there are no filings or recordations with respect
to the Aircraft, the Trust Indenture or the Trust Indenture Supplement
with the Federal Aviation Administration not shown on the indices of
filed but unrecorded documents maintained by the Federal Aviation
Administration and made available to Xxxxx & Xxxxxxx, P.C., for purposes
of their aforesaid opinion, or of Uniform Commercial Code financing
statements naming the Owner as a debtor in respect of all or any portion
of the Trust Indenture Estate (other than any such financing statements
as have been filed therein in favor of the Indenture Trustee as secured
party under the Trust Indenture) in the filing offices of the Secretary
of State of the State of Minnesota or in any other filing office in the
State of Minnesota. I have further assumed that each of the documents
and Uniform Commercial Code financing statements referred to in Paragraph
5 above to be recorded with the Federal Aviation Administration or filed
with the appropriate filing office in the State of Minnesota was in due
form for such recording or filing and that each of such documents has
been duly and timely recorded or filed, as the case may be, under the
Federal Aviation Act and under the laws of the State of Minnesota.
I am qualified to practice law in the State of Minnesota, and
I do not purport to be an expert on, or to express any opinion
concerning, any laws except the laws of the State of Minnesota, the
Delaware General Corporation Law and the federal laws of the United
States. Further, I do not purport to give any opinion regarding the
securities laws in any jurisdiction or with respect to the Employee
Retirement Income Security Act of 1974, as amended. All references in
this opinion to federal laws are to the Federal laws of the United
States.
I assume no obligations to supplement the opinions expressed
herein if any applicable laws change after the date hereof or if I become
aware of any facts that might change such opinions after the date hereof.
I express no opinions except as expressly set forth herein,
and no opinion is implied or may be inferred beyond the opinions
expressly stated herein. This opinion is being delivered for your sole
benefit and no other person or entity shall be entitled to rely upon this
opinion without my express written consent.
Very truly yours,
NORTHWEST AIRLINES, INC.
SCHEDULE A
----------
State Street Bank and Trust Company of Connecticut, National Association,
as Pass Through Trustee
State Street Bank and Trust Company, as Indenture Trustee
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Chase Securities Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
[For A319's]
Exhibit C to Participation Agreement
------------------------------------
[Form of opinion of counsel to the Supplier and the Manufacturer]
[_____________, ____]
To the Addressees Listed
in the Attached Schedule
------------------------
Re: Airbus A319-114 Aircraft
Manufacturer's Serial No. [________]
Registration No. N[_____] (the "Aircraft")
------------------------------------------
Dear Sirs:
We have acted as special French counsel for Airbus Industrie G.I.E.
("Airbus") and AVSA S.A.R.L. ("AVSA") in connection with the sale of the
Aircraft by AVSA to Northwest Airlines, Inc. ("Northwest").
We have examined a facsimile copy of:
(a) an executed Manufacturer Consent and Agreement to
Assignment of Warranties [NW _____], dated
[______________], made by Airbus;
(b) an executed Supplier Consent and Agreement to Assignment
of Warranties [NW ______], dated [______________], made
by AVSA;
(c) a document executed both in the English language as
"French Pledge Agreement" and in the French language as
"Convention de Nantissement de Creances" (collectively
referred to as the "Convention de Nantissement de
Creances"), dated the date hereof made between Northwest
and State Street Bank and Trust Company, as Indenture
Trustee;
(d) a Xxxx of Sale dated [___________] executed by AVSA in
favour of Northwest; and
(e) an FAA Xxxx of Sale dated [___________] executed by AVSA
in favour of Northwest;
(documents (a) through (e) hereinafter referred to as the "Documents").
Based on the foregoing, and such other documents, records and other
instruments as we have deemed it necessary or appropriate for the
purposes of this opinion, and assuming the Document to have been duly
executed by the parties thereto, we are of the opinion that, subject to
the qualifications set out below:
1. Airbus is a groupement d'interet economique duly organized and
existing under the laws of the French Republic, and has the power
and authority to carry on its business as now conducted. The
present members of Airbus are (i) Aerospatiale Matra, (ii) Daimler
Chrysler Aerospace Airbus, (iii) BAE Systems (Operations) Limited
and (iv) Construcciones Aeronauticas S.A., and each of such
corporations is, without the need to proceed against any collateral
security for the indebtedness of Airbus or to take any other legal
action or process (except for service on Airbus by huissier of
notice to perform and subsequent failure by Airbus to do so),
jointly and severally liable with the other members for the debts
of Airbus arising out of obligations contracted by Airbus while
such corporation is a member of Airbus, including those arising
under each Document, and will remain so liable even after such
corporation ceases to be a member of Airbus after such Document is
entered into; provided such Document is not modified without its
consent after it has ceased to be a member.
2. AVSA is a societe a responsabilite limitee duly established and
existing under the laws of the French Republic and has the power
and authority to carry on its business as now conducted.
3. Each of Airbus and AVSA has full power and authority to enter into
and to execute, deliver and perform its obligations under those of
the Documents to which it is a party; such obligations are legal,
valid and binding upon them, respectively, are enforceable in
accordance with their respective terms and rank pari passu with the
other unsecured obligations of Airbus or AVSA, as the case may be.
4. Assuming that under New York law, the Indenture Trustee would be
entitled to take proceedings in its own name and on its own account
to recover from Northwest the full amount of all amounts secured by
the Convention de Nantissement de Creances, the Convention de
Nantissement de Creances (i) duly creates for the benefit of the
Indenture Trustee the security interests which the Convention de
Nantissement de Creances purports to create and the Indenture
Trustee is entitled to the benefits and security afforded thereby,
(ii) subject to the registration and "huissier" requirements of
paragraph 9(d) hereof and the observation set forth in paragraph
9(f) hereof, and with respect to non-monetary claims, should be
effective as against Airbus, AVSA and third parties to perfect the
pledge of the obligations of Airbus and AVSA that are the subject
of the Convention de Nantissement de Creances and (iii) subject to
the registration and "huissier" requirements of paragraph 9(d)
hereof, and with respect to monetary claims, would be effective as
against Airbus, AVSA and third parties to perfect the pledge of the
obligations of Airbus and AVSA that are the subject of the
Convention de Nantissement de Creances.
5. All actions, authorizations, approvals, consents, conditions and
things required at law to be taken, fulfilled and done to authorize
the execution, delivery and performance by Airbus and AVSA of those
of the Documents to which they respectively are party have been
taken, obtained, fulfilled and done; and no consents under any
exchange control laws, rules or regulations of the French Republic
are necessary in connection therewith.
6. Neither the execution and delivery and performance of the Documents
to which Airbus and AVSA respectively are a party, nor the
consummation of the transactions contemplated thereby, contravenes
or violates any law, judgment, governmental rule, regulation or
order applicable to or binding on Airbus or AVSA.
7. No French value added tax was due upon the transfer of title in the
Aircraft from AVSA to Northwest.
8. Under the laws of the French Republic, Airbus and AVSA are subject
to private commercial law and to suit, and neither Airbus nor AVSA,
nor their respective properties have any immunity from the
jurisdiction of any court or any legal process (whether through
service of notice, attachment prior to notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise),
except that, with respect to Airbus:
(a) to the extent that Airbus occupies or possesses any property
by virtue of any license or grant from the French State, such
property and the title of Airbus thereto may be immune from
suit or execution on the grounds of sovereignty, and
(b) suit and execution against Airbus or its property may be
affected by action taken by the French public authorities in
the interests of national defense or on the occurrence of
exceptional circumstances of paramount importance to the
national interest of France, as such concept is understood
under the Constitution, laws and regulations of France.
9. In connection with the obligations of Airbus and AVSA under the
Documents, this opinion must be read subject to the following
qualifications and observations as to French law:
(a) the remedy of specific performance may not be available in a
French court;
(b) the enforcement of any of the Documents may be limited by
applicable bankruptcy, insolvency, or similar arrangements, or
by moratorium or other similar laws relating to or affecting
the enforcement of creditors' rights generally;
(c) in respect of payment obligations, a French court has power
under Article 1244-1 of the French Civil Code to grant time to
a debtor (not in excess of two years), taking into account the
position of the debtor and the economic circumstances;
(d) in order to ensure the validity as against third parties of
the pledge ("nantissement") created by the "Convention de
Nantissement de Creances" in accordance with the provisions of
Article 2075 of the French Civil Code, it is necessary for the
"Convention de Nantissement de Creances" to be registered with
the French tax administration, involving payment of a stamp
duty of a nominal amount. In addition, the "nantissement"
created by the "Convention de Nantissement de Creances" will
need to be served on each of Airbus and AVSA by "huissier", in
accordance with the provisions of Article 2075 of the French
Civil Code. We have been instructed by the Indenture Trustee
to carry out the above formalities on its behalf, which we
intend to do on receipt of the executed originals of the
Convention de Nantissement de Creances. We anticipate that
there will be no difficulty in accomplishing these
formalities;
(e) in the event of any proceedings being brought in a French
court in respect of a monetary obligation expressed to be
payable in a currency other than French Francs or euros, a
French court would probably give judgment expressed as an
order to pay, not such currency, but its French Franc or euro
equivalent at the time of payment or enforcement of judgment.
With respect to a bankruptcy, insolvency, liquidation,
moratorium, reorganization, reconstruction or similar
proceedings, French law may require that all claims or debts
be converted into French Francs or euros at an exchange rate
determined by the court at a date related thereto, such as the
date of commencement of a winding-up;
(f) pledges over non monetary claims are unusual under French law.
In principal, pledges over claims of this type should be
effective against Airbus, AVSA and third parties but in the
absence of case law, there is a lack of certainty about the
Pledge being effective;
(g) a determination or certificate as to any matter provided for
in the Documents might be held by a French court not to be
final, conclusive or binding, if such determination or
certificate could be shown to have an unreasonable, incorrect
or arbitrary basis or not to have been given or made in good
faith;
(h) claims may become barred by effluxion of time or may be or
become subject to defense of set-off or counterclaim;
(i) a French court may stay proceedings if concurrent proceedings
are being brought elsewhere;
(j) we express no opinion as to whether any provision in the
Documents conferring a right of set-off or similar right would
be effective against a liquidator or a creditor; and
(k) our opinion as to the enforceability of the Documents relates
only to their enforceability in France in circumstances where
the competent French court has and accepts jurisdiction. The
term "enforceability" refers to the legal character of the
obligations assumed by the parties under the documents, i.e.,
that they are of a character which French law enforces or
recognizes. It does not mean that the Documents will be
enforced in all circumstances or in foreign jurisdictions or
by or against third parties or that any particular remedy will
be available.
In rendering the foregoing opinions, we have assumed that the Documents,
other than the Convention de Nantissement de Creances, constitute the
legal, valid and binding obligations of the parties under New York law.
We are qualified as French Avocats.
No opinion is expressed herein as to laws other than the laws of the
French Republic as of the date hereof. The opinion is for your use and
that of no one else, and is limited to (i) the matter specifically
mentioned herein, and (ii) the purpose set out above.
Yours sincerely,
SCHEDULE A
----------
Northwest Airlines, Inc.
Northwest Airlines Corporation
State Street Bank and Trust Company, not in its individual capacity but
solely as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association,
as Pass Through Trustee
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Chase Securities Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
[For 757's]
Exhibit C to Participation Agreement
------------------------------------
[Form of opinion of in-house counsel to the Manufacturer]
_____________, ____
To the Addressees Listed
in the Attached Schedule
------------------------
Subject: One Boeing Model 757-251 Aircraft
Bearing Manufacturer's Serial No. ________
Ladies and Gentlemen:
I am an attorney employed by The Boeing Company ("Boeing") and I am
licensed to practice law in the State of Washington. As such, I have
represented Boeing in connection with the sale of the Boeing Model 757-
251 aircraft bearing Manufacturer's Serial No. _________ (including the
engines installed thereon but excluding equipment furnished by Northwest
Airlines Inc. ("Northwest") (the "Aircraft")), pursuant to Purchase
Agreement No. 1631 between Boeing and Northwest, dated December 1, 1989,
as subsequently amended (the "Purchase Agreement").
For the purpose of this opinion, I have examined and relied upon
originals, or copies certified to my satisfaction, of the Purchase
Agreement and of the Consent and Agreement [NW ____ _], dated as of
[_____________] executed by Boeing (the "Consent and Agreement").
I have also examined such other documents and records as I have deemed
relevant or necessary for the purpose of giving this opinion. Based upon
such examination, I am of the opinion that:
(a) Boeing is a corporation duly incorporated, validly existing,
and in good standing under the laws of the State of Delaware.
(b) The Purchase Agreement and the Consent and Agreement have been
duly authorized, executed and delivered by, and constitute the legal,
valid, and binding obligations of Boeing enforceable against it in
accordance with the respective terms thereof, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting the enforcement of creditors' rights in general and except as
the enforceability of such obligations may be subject to general
principles of equity.
(c) Boeing has the full power, authority, and legal right to enter
into and perform its obligations under the Purchase Agreement and the
Consent and Agreement and Boeing's execution, performance, and delivery
of such documents have been duly authorized by all necessary corporate
action, and do not contravene the Restated Certificate of Incorporation
or by-laws of Boeing, or any indenture, mortgage, contract, instrument,
or other agreement, in each case known to me, to which Boeing is a party
or by which it or any of its properties is bound.
For the purpose of this opinion, I have assumed that Northwest had the
power and authority to accept title to and delivery of the Aircraft and
that the representative acting on behalf of Northwest was duly authorized
to accept title to and delivery of the Aircraft on its behalf.
With respect to the conclusions set forth herein, I express no opinion as
to any laws other than the laws of the State of Washington, the corporate
laws of the State of Delaware, and the federal laws of the United States.
Very truly yours,
___________________
Counsel
SCHEDULE
--------
Northwest Airlines, Inc.
Northwest Airlines Corporation
State Street Bank and Trust Company,
not in its individual capacity but solely as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association,
as Pass Through Trustee
Standard & Poor's Ratings Service
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Chase Securities Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
Exhibit F to Participation Agreement
------------------------------------
[Form of Opinion of Xxxxx & Xxxxxxx, P.C.]
[_________ __, ____]
TO THE ADDRESSEES LISTED
ON SCHEDULE A HERETO
Re: [Airbus model A319-114] [Boeing model 757-251] aircraft with
manufacturer's serial number [_____] and United States
nationality and registration marks N [____] (the "Aircraft")
------------------------------------------------------------
Ladies and Gentlemen:
This letter confirms that we filed with the Federal Aviation
Administration (the "FAA") today at [___________], [(i) the Mortgage and
Security Agreement Release and Termination Agreement dated [__________]
between [_________] and Northwest Airlines, Inc., which released the
Aircraft and the [CFM International, Inc. model CFM56-5A5] [Xxxxx &
Whitney model PW2037] aircraft engines with manufacturer's serial numbers
[______] and [______] (the "Engines") from the terms of Conveyance No.
[_________] and (ii)] the Trust Indenture and Security Agreement [NW ____
__] dated as of [__________] (the "Indenture") between Northwest
Airlines, Inc. (the "Owner") and State Street Bank and Trust Company as
Indenture Trustee (the "Indenture Trustee"), to which was attached the
Trust Indenture Supplement [NW ____ __] dated [______________] (the
"Indenture Supplement") covering the Aircraft and the [CFM International,
Inc. model CFM56-5A5] [Xxxxx & Xxxxxxx model PW2037] aircraft engines
with manufacturer's serial numbers [______] and [______] (the "Engines").
Based upon our examination of the above described instruments
and of such records of the FAA as we deemed necessary to render this
opinion and as were made available to us by the FAA, it is our opinion
that:
(a) [the Release,] the Indenture with the Indenture
Supplement attached, [are][is] in due form for
recordation by and has been duly filed for recordation
with the FAA pursuant to and in accordance with the
provisions of Section 44107 of Title 49 of the United
States Code;
(b) legal title to the Aircraft is vested in the Owner and
all instruments necessary to cause the FAA in due course
to issue to the Owner an AC Form 8050-3 Certificate of
Aircraft Registration covering the Aircraft have been
duly filed with the FAA pursuant to and in accordance
with the provisions of Sections 44102 and 44103 of Title
49 of the United States Code;
(c) the Aircraft and the Engines are free and clear of Liens
(as such term is defined in the Indenture) other than
such as are created by the Indenture, as supplemented by
the Indenture Supplement;
(d) the Indenture, as supplemented by the Indenture
Supplement creates a duly and validly perfected first
priority security interest in favor of the Indenture
Trustee in the Aircraft and the Engines (insofar as such
security interest affects an interest covered by the
recording system established by the FAA pursuant to
Section 44107 of Title 49 of the United States Code);
(e) the Indenture, as supplemented by the Indenture
Supplement, is not required to be refilled with the FAA
or filed or recorded in any other place within the United
States in order to perfect or maintain the perfection of
the security interest created thereby in the Aircraft and
the Engines under the applicable laws of any jurisdiction
within the United States; and
(f) no other registration of the Aircraft and no filings or
recordings (other than the filings and recordings with
the FAA which have been effected) are necessary to
perfect in any jurisdiction within the United States the
Owner's title to the Aircraft or the security interest
created by the Indenture, as supplemented by the
Indenture Supplement in the Aircraft and the Engines
under the applicable laws of any jurisdiction within the
United States.
No opinion is herein expressed as to: (i) laws other than the
federal laws of the United States; (ii) the validity or enforceability
under local law of the Indenture, as supplemented by the Indenture
Supplement; and (iii) the recognition of the perfection of the security
interest created by the Indenture, as supplemented by the Indenture
Supplement against third parties in any legal proceedings outside the
United States. Since our examination was limited to records maintained
by the FAA Aircraft Registry, our opinion does not cover liens which are
perfected without the filing of notice thereof with the FAA, such as
federal tax liens, liens arising under Section 1368(a) of Title 29 of the
United States Code and possessory artisans' liens, and was subject to the
accuracy of FAA personnel in the filing, indexing and recording of
instruments filed with the FAA and in the search for encumbrance cross-
reference index cards for the Engines. This opinion is rendered in
reliance upon the opinion of the Aeronautical Center Counsel dated
[_______________ ] (a copy of which is attached hereto) and upon the past
practice of the FAA which is consistent with said opinion.
Very truly yours,
SCHEDULE A
----------
State Street Bank and Trust Company of Connecticut, National Association,
as Pass Through Trustee
State Street Bank and Trust Company, as Indenture Trustee
Northwest Airlines, Inc., as Owner
Northwest Airlines Corporation, as Guarantor
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Chase Securities Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
Exhibit G to Participation Agreement
------------------------------------
[Form of Opinion of Xxxxxxx Xxxx LLP,
special counsel for the Indenture Trustee]
[__________, ____]
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
Re: Northwest Airlines, Inc./Financing of [Airbus A319-114]
[Boeing 757-251] Aircraft [NW ____ __] (Indenture Trustee
Opinion)
---------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and
Trust Company in its individual capacity ("State Street") and as
Indenture Trustee (the "Indenture Trustee") under the Trust Indenture and
Security Agreement [NW ____] dated as of [________________] (the
"Indenture") between Northwest Airlines, Inc. and State Street, as
Indenture Trustee, in connection with the execution and delivery of the
Participation Agreement [NW ____] dated as of [________________] (the
"Participation Agreement") by and among the Indenture Trustee, Northwest
Airlines, Inc., the Owner, Northwest Airlines Corporation (the
"Guarantor"), State Street Bank and Trust Company of Connecticut,
National Association, as Pass Through Trustee (the "Pass Through
Trustee") and State Street Bank, as Subordination Agent (the
"Subordination Agent") and the transactions contemplated thereby.
Capitalized terms not otherwise defined herein shall have the meanings
specified in or referenced in the Participation Agreement. This opinion
is being delivered pursuant to Section 4(a)(xvi) of the Participation
Agreement.
Our representation of State Street and the Indenture Trustee
has been as special counsel for the limited purposes stated above. As to
all matters of fact (including factual conclusions and characterizations
and descriptions of purpose, intention or other state of mind), we have
relied, with your permission, entirely upon (i) the representations and
warranties of the parties set forth in the Operative Documents and (ii)
certificates delivered to us by the management of State Street and have
assumed, without independent inquiry, the accuracy of those
representations, warranties and certificates.
We have examined the Participation Agreement, the Note
Purchase Agreement, the Indenture and the other documents to which State
Street, individually or as Indenture Trustee, is a party (together, the
"Operative Documents"), the Certificate of the Massachusetts Commissioner
of Banks relating to State Street and originals, or copies certified or
otherwise identified to our satisfaction, of such other records,
documents, certificates, or other instruments as we have deemed necessary
or advisable for the purposes of this opinion. For purposes of our
opinion rendered in paragraph 1 below, with respect to the authority of
State Street to operate as a state-chartered trust company and exercise
trust powers, our opinion relies upon and is limited by such Certificate
of the Massachusetts Commissioner of Banks.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Indenture Trustee), the
conformity to the originals of all documents reviewed by us as copies,
and the authenticity and completeness of all original documents reviewed
by us in original or copy form and the legal competence of each
individual executing any document (other than on behalf of State Street
and the Indenture Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we
are aware or which are known to us, or with another similar
qualification, the relevant knowledge or awareness is limited to the
actual knowledge or awareness of the individual lawyer in the firm that
signed this opinion, the individual lawyers in the firm who have
participated directly in the specific transactions to which this opinion
relates and the partner of the firm responsible for State Street
corporate trust matters, and without any special or additional
investigation undertaken for the purposes of this opinion.
Subject to the limitation set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the Commonwealth of Massachusetts as applied by
courts located in Massachusetts and the federal laws of the United
States. No opinion is given herein as to the choice of law or internal
substantive rules of law that any court or other tribunal may apply to
the transactions contemplated by the Operative Documents. No opinion is
expressed herein as to the application or effect of federal securities
laws or as to the securities or so-called "Blue Sky" laws of any state or
other jurisdiction. In addition, no opinion is expressed as to matters
governed by any law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the
Aircraft.
To the extent to which this opinion deals with matters
governed by or relating to the laws of the State of New York, or other
jurisdiction other than the Commonwealth of Massachusetts, by which the
Operative Documents are stated to be governed, we have assumed, with your
permission that the Operative Documents are governed by the internal
substantive laws of the Commonwealth of Massachusetts.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
(a) We have assumed without any independent investigation
that (i) each party to the Operative Documents, other than State
Street, in its individual capacity or as Indenture Trustee, as
applicable, at all times relevant thereto, is validly existing and
in good standing under the laws of the jurisdiction in which it is
organized, and is qualified to do business and in good standing
under the laws of each jurisdiction where such qualification is
required generally or necessary in order for such party to enforce
its rights under such Operative Documents, and (ii) each party to
the Operative Documents, at all times relevant thereto, had and has
the full power, authority and legal right under its certificate of
incorporation, partnership agreement, by-laws, and other governing
organizational documents, and the applicable corporate,
partnership, or other enterprise legislation and other applicable
laws, as the case may be (other than State Street and the Indenture
Trustee with respect to the laws of the United States of America
and the internal substantive laws of the Commonwealth of
Massachusetts, but only in each case to the limited extent the same
may be applicable to State Street or the Indenture Trustee, and
relevant to our opinions expressed below) to execute, and to
perform its obligations under, the Operative Documents, and (iii)
each party to the Operative Documents (other than State Street or
the Indenture Trustee, as applicable) has duly executed and
delivered each of such agreements and instruments to which it is a
party and that (other than with respect to State Street and the
Indenture Trustee, as applicable) the execution and delivery of
such agreements and instruments and the transactions contemplated
thereby have been duly authorized by proper corporate or other
organizational proceedings as to such party.
(b) We have assumed without any independent investigation
(i) that each of the Operative Documents is a valid, binding and
enforceable obligation of each party thereto other than State
Street or the Indenture Trustee, as applicable, and (ii) that each
of the Operative Documents is a valid, binding and enforceable
obligation of State Street or the Indenture Trustee, as applicable,
to the extent that laws other than those of the Commonwealth of
Massachusetts are relevant thereto (other than the laws of the
United States of America, but only to the limited extent the same
may be applicable to State Street or the Indenture Trustee, as
applicable, and relevant to our opinions expressed below).
(c) The enforcement of any obligations of State Street or the
Indenture Trustee, as applicable, under any of the Operative
Documents may be limited by the receivership, conservatorship and
supervisory powers of bank regulatory agencies generally, as well
as by bankruptcy, insolvency, reorganization, moratorium,
marshaling or other laws and rules of law affecting the enforcement
generally of creditors' rights and remedies (including such as may
deny giving effect to waivers of debtors' or guarantors' rights);
and we express no opinion as to the status under any fraudulent
conveyance laws or fraudulent transfer laws of any of the
obligations of State Street or the Indenture Trustee, as
applicable, under any of the Operative Documents.
(d) We express no opinion as to the availability of any
specific or equitable relief of any kind.
(e) The enforcement of any rights may in all cases be subject
to an implied duty of good faith and fair dealing and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity) and, as to any
rights to collateral security, will be subject to a duty to act in
a commercially reasonable manner.
(f) We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating to
(i) waivers of rights to object to jurisdiction or venue, or
consents to jurisdiction or venue, (ii) waivers of rights to (or
methods of) service of process, or rights to trial by jury, or
other rights or benefits bestowed by operation of law, (iii)
waivers of any applicable defenses, setoffs, recoupments, or
counterclaims, (iv) the grant of powers of attorney to any person
or entity, (v) exculpation or exoneration clauses, indemnity
clauses, and clauses relating to releases or waivers of unmatured
claims or rights, (vi) the imposition or collection of interest on
overdue interest or providing for a penalty rate of interest or
late charges on overdue or defaulted obligations, or the payment of
any premium, liquidated damages, or other amount which may be held
by any court to be a "penalty" or a "forfeiture," or (vii) so-
called "usury savings clauses" purporting to specify methods of (or
otherwise assure) compliance with usury laws or other similar laws
of any jurisdiction.
(g) We express no opinion as to the effect of events
occurring, circumstances arising, or changes of law becoming
effective or occurring, after the date hereof on the matters
addressed in this opinion letter, and we assume no responsibility
to inform you of additional or changed facts, or changes in law, of
which we may become aware.
(h) No opinion is given herein as to the effect of usury laws
(or other similar laws) of any jurisdiction with respect to the
Operative Documents.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their successors and assigns
in connection with the transactions contemplated by the Operative
Documents and may not be used or relied upon by any other person or for
any other purpose.
1. State Street is a Massachusetts trust company, validly
formed and authorized to operate as a state-chartered trust company under
the laws of the Commonwealth of Massachusetts and, in its individual
capacity or as Indenture Trustee, as the case may be, has the requisite
corporate and trust power and authority to execute, deliver and perform
its obligations under the Operative Documents and in its capacity as
Indenture Trustee, to authenticate the Secured Certificates to be
delivered on the Closing Date.
2. State Street, in its individual capacity or as Indenture
Trustee, as the case may be, has duly authorized the Operative Documents
and has duly executed and delivered the Operative Documents, and the
Operative Documents constitute valid and binding obligations of State
Street, in its individual capacity or as Indenture Trustee, as the case
may be, enforceable against State Street, in its individual capacity or
as Indenture Trustee, as the case may be, in accordance with their
respective terms.
3. The Secured Certificates to be issued and dated the
Closing Date have been duly authenticated and delivered by State Street
as Indenture Trustee pursuant to the terms of the Indenture.
4. The authorization, execution, delivery and performance by
State Street, in its individual capacity or as Indenture Trustee, as the
case may be, of the Operative Documents and the consummation of the
transactions therein contemplated and compliance with the terms thereof
do not and will not result in the violation of the provisions of the
charter documents or by-laws of State Street and, to the best of our
knowledge, do not conflict with, or result in a breach of any terms or
provisions of, or constitute a default under, or result in the creation
or the imposition of any lien, charge or encumbrance upon any property or
assets of State Street under any indenture, mortgage or other agreement
or instrument, in each case known to us, to which State Street is a party
or by which it is bound, or violates any applicable Massachusetts or
federal law, rule or regulation governing State Street's banking or trust
powers, or, to the best of our knowledge, of any judgment, order or
decree, in each case known to us, applicable to State Street of any
court, regulatory body, administrative agency, government or governmental
body having jurisdiction over State Street.
5. No authorization, approval, consent, license or order of,
giving of notice to, registration with, or taking of any other action in
respect of, any federal or state governmental authority or agency
pursuant to any federal or Massachusetts law governing the banking or
trust powers of State Street is required for the authorization,
execution, delivery and performance by State Street, in its individual
capacity or as Indenture Trustee, as the case may be, of the Operative
Documents or the consummation of any of the transactions by State Street,
in its individual capacity or as Indenture Trustee, as the case may be,
contemplated thereby (except as shall have been duly obtained, given or
taken); and such authorization, execution, delivery, performance,
consummation and issuance do not conflict with or result in a breach of
the provisions of any such law.
6. There are no taxes, fees or other governmental charges
payable under the laws of the Commonwealth of Massachusetts or any
political subdivision of such State in connection with the execution and
delivery by State Street, in its individual capacity or as Indenture
Trustee, as the case may be, of the Operative Documents (except for taxes
on any fees payable to State Street in its individual capacity) which are
imposed solely because State Street has its principal place of business
in Massachusetts or performs its administrative duties under the
Operative Documents in Massachusetts.
7. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no proceedings pending or overtly
threatened in writing against or affecting State Street in any court or
before any governmental authority, agency, arbitration board or tribunal
which, if adversely determined, individually or in the aggregate, could
reasonably be expected to affect materially and adversely the trust
related to the Indenture or affect the right, power and authority of
State Street, in its individual capacity or as Indenture Trustee, as the
case may be, to enter into or perform its obligations under the Operative
Documents.
Very truly yours,
XXXXXXX XXXX LLP
SCHEDULE A
----------
State Street Bank and Trust Company, as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association,
as Pass Through Trustee
Northwest Airlines, Inc., as Owner
Northwest Airlines Corporation, as Guarantor
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Chase Securities Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
Exhibit I to Participation Agreement
------------------------------------
[Form of CW&T 1110 Opinion]
[Date]
TO THE ADDRESSEES LISTED
ON SCHEDULE A HERETO
Re: Northwest Airlines, Inc.
Opinion of Special Counsel to the Owner Concerning
Section 1110 of the Federal Bankruptcy Code
--------------------------------------------------
Gentlemen:
We have acted as special counsel for Northwest Airlines, Inc.,
a Minnesota corporation (the "Owner"), in connection with the
transactions contemplated by the Participation Agreement [NW ____ ___],
dated as of [______________] (the "Participation Agreement"), among the
Owner, Northwest Airlines Corporation, as Guarantor, State Street Bank
and Trust Company of Connecticut, National Association, as Pass Through
Trustee under each of the Pass Through Trust Agreements referred to
therein, State Street Bank and Trust Company, as Subordination Agent, and
State Street Bank and Trust Company, as Indenture Trustee under the
Indenture referred to therein. Capitalized terms used herein but not
defined herein have the respective meanings given to them in or by
reference to the Participation Agreement, unless the context otherwise
requires. As used herein, the term "Airframe" shall mean the [Airbus
A319-114] [Boeing 757-251] Airframe bearing U.S. Registration No.
N[________] and Manufacturer's Serial No. [_____], the term "Engines"
shall mean the two [CFM International, Inc. Model CFM 56-5A5] [Xxxxx &
Whitney Model PW2037] Engines bearing manufacturer's Serial Nos. [______]
and [______], and the term "Aircraft" shall mean the Airframe and the
Engines, collectively, but expressly excludes any portion of the Aircraft
that does not constitute an aircraft, aircraft engine, appliance, or
spare part as such terms are defined in section 40102 of title 49 of the
United States Code. We are rendering this opinion letter to you at the
request of the Owner pursuant to Section 4(a)(xxiii) of the Participation
Agreement.
In acting as such special counsel, we have examined, among
other things, with respect to the Aircraft, executed counterparts of the
Participation Agreement, Consent and Agreement, Trust Indenture, Trust
Indenture Supplement, Guarantee and Secured Certificates. As to any
facts material to our opinions expressed herein, we have, without
independent investigation, relied upon the representations and warranties
contained in the Operative Documents (including, without limitation, in
Sections 7 and 8 of the Participation Agreement and certificates of
officers of the Owner including, without limitation, the certificate of
an officer of the Owner delivered pursuant to Section 4(a)(ix) of the
Participation Agreement and the certificate of an officer of the Owner in
the form attached as Exhibit A hereto) and upon originals or copies
(certified or otherwise identified to our satisfaction) of such corporate
records, documents and other instruments as, in our judgment, are
necessary or appropriate to enable us to render this opinion. We have
also assumed, and have not independently verified, the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity with the originals of all documents submitted
to us as copies, and the accuracy of all factual statements of parties
made on or before the date hereof (and have relied thereon as we have
deemed appropriate). We have delivered to you today our opinion of even
date herewith as to, among other things, the enforceability of certain of
the Operative Documents against the Owner. This Opinion is subject to
the same assumptions, exceptions, limitations and qualifications set
forth therein and is given in reliance on the same matters, including
opinion letters, as are stated to be relied on therein.
We express no opinion concerning the laws of any jurisdiction
other than the laws of the State of New York and the federal laws of the
United States of America.
You have requested our opinion as to whether the Indenture
Trustee would be entitled to the benefits of section 1110
("Section 1110") of title 11 of the United States Code (the "Bankruptcy
Code") if the Owner were to become a debtor in a case under chapter 11 of
the Bankruptcy Code.
ASSUMPTIONS
-----------
The opinions expressed herein are based upon and subject to
the assumed compliance by the relevant parties, at all relevant times,
with the assumptions set forth herein and the assumption that all matters
relied on herein continue to be true and that there are no and will not
be any amendments to the Operative Documents or additional facts of which
we are not aware which would be material to a court's decision on this
issue.
We have assumed, in addition to the assumptions set forth
above, that:
(i) the Owner will continue to be the registered owner of the
Aircraft, subject to the security interest of the Indenture
Trustee;
(ii) the Owner holds an air carrier operating certificate
issued by the Secretary of Transportation pursuant to chapter 447
of title 49 of the United States Code for aircraft capable of
carrying 10 or more individuals or 6,000 pounds or more of cargo;
(iii) the Trust Indenture constitutes the legal, valid and
binding obligation of the Owner in accordance with its terms,
except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law) and the Trust Indenture is
effective to create a valid security interest in favor of the
Indenture Trustee for the benefit of the Loan Participants in the
Owner's right, title and interest in and to the Aircraft and that
the Indenture Trustee has and will continue to hold a perfected
security interest in the Owner's interest in the Aircraft; and
(iv) all Uniform Commercial Code financing statements and all
filings necessary under the recording system of the Federal
Aviation Act have been properly filed and duly recorded in all
necessary places to properly record the ownership interest of the
Owner in the Aircraft and to perfect the security interest of the
Indenture Trustee in the Owner's interest in the Aircraft.
CONCLUSION
----------
Based upon the foregoing, and subject to the assumptions and
qualifications contained herein, it is our opinion that if the Owner were
to become a debtor under chapter 11 of the Bankruptcy Code, the Indenture
Trustee for the benefit of the Loan Participants would be entitled to the
benefits of Section 1110 with respect to the Airframe and the Engines but
may not be entitled to such benefits with respect to any replacement of
the Aircraft after an Event of Loss in the future.
QUALIFICATIONS
--------------
Section 1110 was amended effective October 22, 1994, and
subsequently amended on April 5, 2000, by Section 744 of the Xxxxxxx X.
Xxxx Aviation Investment and Reform Act for the 21st Century, Pub. L. No.
106-181 (the "Aviation Investment and Reform Act"). Our opinion
respecting Section 1110 is based on the assumptions set forth herein,
our review of the language of Section 1110 as currently in effect, a
review of the legislative history of the Bankruptcy Reform Act of 1994
and the Aviation Investment and Reform Act, and a review of the cases
decided under the former versions of Section 1110. We are not aware of
any judicial decision interpreting the amendments to Section 1110 enacted
in the Bankruptcy Reform Act of 1994 or the Aviation Investment and
Reform Act that is directly applicable to the facts and circumstances
present in this transaction. Accordingly, our opinion is not based on
directly applicable judicial precedent, but rather on what we believe to
be a sound analysis of such authorities as exist.
We express no opinion concerning whether any collateral
consisting of proceeds or any substitute or replacement airframe, engine
or part would have the benefits of Section 1110.
We express no opinion as to the availability or effect of a
preliminary injunction, temporary restraining order or other such
temporary relief, nor do we express any opinion, either implicitly or
otherwise, with respect to any subject not addressed expressly in the
Conclusion.
We express no opinion as to the availability of Section 1110
with respect to any bankruptcy proceedings of any possible lessee of an
Aircraft which may be leased by the Owner. We express no opinions except
as expressly set forth herein, and no opinion is implied or may be
inferred beyond the opinions expressly stated herein.
We are furnishing this opinion letter to you solely for your
benefit in connection with the transactions referred to herein. This
opinion letter is not to be relied upon, used, circulated, quoted or
otherwise referred to by any person or entity for any other purpose
without our prior written consent. In addition, we disclaim any
obligation to update this opinion letter for changes in fact or law, or
otherwise.
Very truly yours,
SCHEDULE A
----------
Northwest Airlines, Inc., as Owner
Northwest Airlines Corporation, as Guarantor
State Street Bank and Trust Company of Connecticut, National Association,
as Pass Through Trustee
State Street Bank and Trust Company, as Indenture Trustee
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Chase Securities Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
EXHIBIT A
NORTHWEST AIRLINES, INC.
OFFICER'S CERTIFICATE
In connection with the opinion dated [______________ ___, ___]
(the "Opinion"), a copy of which is attached hereto as Exhibit A and
which relates to one [Airbus A319-114] [Boeing 757-251] airframe FAA
Registration No. N[_____] and MSN [_____], and [CFM International, Inc.
model CFM56-5A5] [Xxxxx & Whitney model PW2037] engine MSN [_______] and
[CFM International, Inc. model CFM56-5A5] [Xxxxx & Xxxxxxx model PW2037]
engine [_______] (collectively, the "Aircraft"), to be delivered by
Cadwalader, Xxxxxxxxxx & Xxxx ("CW&T") to the parties identified therein
in connection with the execution and delivery of certain of the Operative
Documents (as defined in the Participation Agreement as defined in the
Opinion), I, [____________________], [____________________] of Northwest
Airlines, Inc., do hereby certify that:
1. I understand that CW&T is relying on this Certificate in
connection with the execution and delivery of the Opinion.
2. To the best of my knowledge, information and belief,
after due inquiry, the assumptions contained in the section of the
Opinion entitled "Assumptions" are true and correct as of the date
hereof.
3. I have no reason to believe that any statement, fact, or
opinion expressed in the Opinion is untrue, inaccurate or incomplete in
any respect.
4. To the best of my knowledge, information and belief,
after due inquiry, all of the statements, representations, warranties,
agreements, disclosures and other information furnished by Northwest,
Airlines, Inc. and contained in the Operative Documents and other
documents delivered in connection with this transaction are true,
accurate and complete in all respects.
5. Northwest Airlines, Inc. intends that the Indenture
Trustee, for the benefit of the Loan Participants (as such terms are
defined in the Participation Agreement), be entitled to the benefits of
11 U.S.C. Section 1110 with respect to the Aircraft.
6. The Aircraft was first placed in service after October
22, 1994.
7. I have been duly authorized by Northwest Airlines, Inc.
to execute and deliver this Certificate to CW&T.
Dated: [_________ __, ___]
NORTHWEST AIRLINES, INC.
By:__________________________________
Name:
Title:
Exhibit J-1 to Participation Agreement
--------------------------------------
[Form of Opinion of Xxxxxxx Xxxx LLP,
special counsel for the Pass Through Trustee]
[___________, ____]
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
Re: Northwest Airlines, Inc./Financing of [Airbus A319-114]
[Boeing 757-251] Aircraft [NW ____ ____] (Pass Through Trustee
Opinion)
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and
Trust Company of Connecticut, National Association, in its individual
capacity ("State Street") and as Pass Through Trustee (the "Pass Through
Trustee") under the Pass Through Trust Agreement dated as of June 3,
1999, among Northwest Airlines Corporation, Northwest Airlines, Inc. and
State Street as supplemented by Trust Supplement No. 2000-1G and Trust
Supplement No. 2000-1C, each dated as of June 28, 2000 and each among
Northwest Airlines, Inc., Northwest Airlines Corporation and State Street
(collectively, the "Pass Through Trusts" and, individually, a "Pass
Through Trust") in connection with the execution and delivery of the
Participation Agreement [NW _______] dated as of [_______________] (the
"Participation Agreement") by and among State Street Bank and Trust
Company, as Indenture Trustee, Northwest Airlines, Inc., Northwest
Airlines Corporation (the "Guarantor"), State Street, as Pass Through
Trustee and State Street Bank and Trust Company, as Subordination Agent
(the "Subordination Agent") and the transactions contemplated thereby.
Capitalized terms not otherwise defined herein shall have the meanings
specified in or referenced in the Participation Agreement. This opinion
is being delivered pursuant to Section 4(b)(v) of the Participation
Agreement.
Our representation of State Street and the Pass Through
Trustee has been as special counsel for the limited purposes stated
above. As to all matters of fact (including factual conclusions and
characterizations and descriptions of purpose, intention or other state
of mind), we have relied, with your permission, entirely upon (i) the
representations and warranties of the parties set forth in the Operative
Documents and (ii) certificates delivered to us by the management of
State Street and have assumed, without independent inquiry, the accuracy
of those representations, warranties and certificates.
We have examined the Participation Agreement, the Liquidity
Facility for each of the Class G and Class C Trusts, the Intercreditor
Agreement, the Note Purchase Agreement, the Escrow and Paying Agent
Agreement for each of the Class G and Class C Trusts each dated as of
June 28, 2000 and each among First Security Bank, National Association,
as Escrow Agent, the underwriters named therein, State Street, as Pass
Through Trustee and State Street Bank and Trust Company, as Paying Agent,
each of the Pass Through Trusts and the Insurance and Indemnity Agreement
dated as of June 28, 2000, among MBIA Insurance Corporation, Northwest
Airlines, Inc., State Street Bank and Trust Company as Subordination
Agent and State Street Bank and Trust Company of Connecticut, National
Association as Pass Through Trustee under the Class G Trust (together,
the "Operative Documents"), the Certificate of the Comptroller of the
Currency relating to State Street and originals, or copies certified or
otherwise identified to our satisfaction, of such other records,
documents, certificates, or other instruments as we have deemed necessary
or advisable for the purposes of this opinion. For purposes of our
opinion rendered in paragraph 1 below, with respect to the authority of
State Street to operate as a national banking association and exercise
trust powers, our opinion relies upon and is limited by such Certificate
of the Comptroller of the Currency.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Pass Through Trustee), the
conformity to the originals of all documents reviewed by us as copies,
and the authenticity and completeness of all original documents reviewed
by us in original or copy form and the legal competence of each
individual executing any document (other than on behalf of State Street
and the Pass Through Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we
are aware or which are known to us, or with another similar
qualification, the relevant knowledge or awareness is limited to the
actual knowledge or awareness of the individual lawyer in the firm that
signed this opinion, the individual lawyers in the firm who have
participated directly in the specific transactions to which this opinion
relates and the partner of the firm responsible for State Street
corporate trust matters, and without any special or additional
investigation undertaken for the purposes of this opinion.
Subject to the limitation set forth below, we have made such
examinations of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the State of Connecticut as applied by courts located
in Connecticut and the federal laws of the United States. No opinion is
given herein as to the choice of law or internal substantive rules of law
that any court or other tribunal may apply to the transactions
contemplated by the Operative Documents. No opinion is expressed herein
as to the application or effect of federal securities laws or as to the
securities or so-called "Blue Sky" laws of any state or other
jurisdiction. In addition, no opinion is expressed as to matters
governed by any law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the
Aircraft.
To the extent to which this opinion deals with matters
governed by or relating to the laws of the State of New York, or other
jurisdictions other than the State of Connecticut, by which the Operative
Documents are stated to be governed, we have assumed, with your
permission that the Operative Documents are governed by the internal
substantive laws of the State of Connecticut.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
(a) We have assumed without independent investigation that
(i) each party to the Operative Documents, other than State Street,
in its individual capacity or as Pass Through Trustee, as
applicable, at all times relevant thereto, is validly existing and
in good standing under the laws of the jurisdiction in which it is
organized, and is qualified to do business and in good standing
under the laws of each jurisdiction where such qualification is
required generally or necessary in order for such party to enforce
its rights under such Operative Documents, and (ii) each party to
the Operative Documents, at all times relevant thereto, had and has
the full power, authority and legal right under its certificate of
incorporation, partnership agreement, by-laws, and other governing
organizational documents, and the applicable corporate,
partnership, or other enterprise legislation and other applicable
laws, as the case may be (other than State Street and the Pass
Through Trustee with respect to the laws of the United States of
America and the internal substantive laws of the State of
Connecticut, but only in each case to the limited extent the same
may be applicable to State Street or the Pass Through Trustee, and
relevant to our opinions expressed below) to execute, and to
perform its obligations under, the Operative Documents, and (iii)
each party to the Operative Documents (other than State Street or
the Pass Through Trustee, as applicable) has duly executed and
delivered each of such agreements and instruments to which it is a
party and that (other than with respect to State Street and the
Pass Through Trustee, as applicable) the execution and delivery of
such agreements and instruments and the transactions contemplated
thereby have been duly authorized by proper corporate or other
organizational proceedings as to such party.
(b) We have assumed without any independent investigation
(i) that each of the Operative Documents is a valid, binding and
enforceable obligation of each party thereto other than State
Street or the Pass Through Trustee, as applicable, and (ii) that
each of the Operative Documents is a valid, binding and enforceable
obligation of State Street or the Pass Through Trustee, as
applicable, to the extent that laws other than those of the State
of Connecticut are relevant thereto (other than the laws of the
United States of America, but only to the limited extent the same
may be applicable to State Street or the Pass Through Trustee, as
applicable, and relevant to our opinions expressed below).
(c) The enforcement of any obligations of State Street or the
Pass Through Trustee, as applicable, under any of the Operative
Documents may be limited by the receivership, conservatorship and
supervisory powers of bank regulatory agencies generally, as well
as by bankruptcy, insolvency, reorganization, moratorium,
marshaling or other laws and rules of law affecting the enforcement
generally of creditors' rights and remedies (including such as may
deny giving effect to waivers of debtors' or guarantors' rights);
and we express no opinion as to the status under any fraudulent
conveyance laws or fraudulent transfer laws of any of the
obligations of State Street or the Pass Through Trustee, as
applicable, under any of the Operative Documents.
(d) We express no opinion as the availability of any specific
or equitable relief of any kind.
(e) The enforcement of any rights may in all cases be subject
to an implied duty of good faith and fair dealing and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity) and, as to any
rights to collateral security, will be subject to a duty to act in
a commercially reasonable manner.
(f) We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating to
the (i) waivers of rights to object to jurisdiction or venue, or
consents to jurisdiction or venue, (ii) waivers of rights to (or
methods of) service of process, or rights to trial by jury, or
other rights or benefits bestowed by operation of law, (iii)
waivers of any applicable defenses, setoffs, recoupments, or
counterclaims, (iv) the grant of powers of attorney to any person
or entity, (v) exculpation or exoneration clauses, indemnity
clauses, and clauses relating to release or waivers of unmatured
claims or rights, (vi) the imposition or collection of interest on
overdue interest or providing for a penalty rate of interest or
late charges on overdue or defaulted obligations, or the payment of
any premium, liquidated damages, or other amount which may be held
by any court to be a "penalty" or a "forfeiture," or (vii) so-
called "usury savings clauses" purporting to specify methods of (or
otherwise assure) compliance with usury laws or other similar laws
of any jurisdiction.
(g) We express no opinion as to the effect of events
occurring, circumstances arising, or changes of law becoming
effective or occurring, after the date hereof on the matters
addressed in this opinion letter, and we assume no responsibility
to inform you of additional or changed facts, or changes in law, of
which we may become aware.
(h) No opinion is given herein as to the effect of usury laws
(or other similar laws) of any jurisdiction with respect to the
Operative Documents.
In rendering the opinion set forth below in paragraph 6 as to
certain Connecticut tax matters, we have assumed that, for federal income
tax purposes, the trust created by the Trust Agreement will not be
taxable as a corporation, but, rather, will be classified as a grantor
trust under subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A
of the Internal Revenue Code of 1986, as amended or as a partnership.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their successors and assigns
in connection with the transactions contemplated by the Operative
Documents and may not be used or relied upon by any other person or for
any other purpose.
1. State Street is a national banking association, validly
formed and authorized to operate as a national banking association under
the laws of the United States of America and, in its individual capacity
or as Pass Through Trustee, as the case may be, has or had, as the case
may be, the requisite corporate and trust power and authority to execute,
deliver and perform its obligations under the Operative Documents and in
its capacity as Pass Through Trustee, to issue and execute the
Certificates delivered on the Issuance Date.
2. State Street, in its individual capacity or as Pass
Through Trustee, as the case may be, has duly authorized by all necessary
corporate action the Operative Documents and has duly executed and
delivered the Operative Documents, and the Operative Documents constitute
valid and binding obligations of State Street, in its individual capacity
or as Pass Through Trustee, as the case may be, enforceable against State
Street, in its individual capacity or as Pass Through Trustee, as the
case may be, in accordance with their respective terms.
3. The Certificates issued and dated the Issuance Date have
been duly issued, authenticated and delivered by State Street as Pass
Through Trustee pursuant to the terms of the Operative Documents and are
enforceable against the Pass Through Trustee and are entitled to the
benefits of the applicable Pass Through Trust.
4. The authorization, execution, delivery and performance by
State Street, in its individual capacity or as Pass Through Trustee, as
the case may be, of the Operative Documents and the consummation of the
transactions therein contemplated and compliance with the terms thereof
do not and will not result in the violation of the provisions of the
charter documents or by-laws of State Street and, to the best of our
knowledge, do not conflict with, or result in a breach of any terms or
provisions of, or constitute a default under, or result in the creation
or the imposition of any lien, charge or encumbrance upon any property or
assets of State Street under any indenture, mortgage or other agreement
or instrument, in each case known to us, to which State Street is a party
or by which it is bound, or violates any applicable Connecticut or
federal law, rule or regulation governing State Street's banking or trust
powers, or, to the best of our knowledge, of any judgment, order or
decree, in each case known to us, applicable to State Street of any
court, regulatory body, administrative agency, government or governmental
body having jurisdiction over State Street.
5. No authorization, approval, consent, license or order of,
giving of notice to, registration with, or taking of any other action in
respect of, any federal or state governmental authority or agency
pursuant to any federal or Connecticut law governing the banking or trust
powers of State Street is required for the authorization, execution,
delivery and performance by State Street, in its individual capacity or
as Pass Through Trustee, as the case may be, of the Operative Documents
or the consummation of any of the transactions by State Street, in its
individual capacity or as Pass Through Trustee, as the case may be,
contemplated thereby (except as shall have been duly obtained, given or
taken); and such authorization, execution, delivery, performance,
consummation and issuance do not conflict with or result in a breach of
the provisions of any such law.
6. There are no taxes, fees or other governmental charges
payable under the laws of the State of Connecticut or any political
subdivision of such State in connection with the execution and delivery
by State Street, in its individual capacity or as Pass Through Trustee,
as the case may be, of the Operative Documents (except for taxes on any
fees payable to State Street in its individual capacity) or in connection
with the issuance, execution and delivery of the Certificates by State
Street, as Pass Through Trustee, pursuant to the Pass Through Trusts
which are imposed solely because State Street has its principal place of
business in Connecticut or performs its administrative duties under the
Operative Documents in Connecticut. Neither State Street, in its
individual capacity or as the Pass Through Trustee, as the case may be,
the Indenture Trustee, the Owner Participant, the Owner Trustee, nor the
trust created by the Trust Agreement will, as a result of the
transactions contemplated thereby, be subject to any Taxes under the laws
of the State of Connecticut or any political subdivision thereof (except
for Taxes on any fees payable to State Street in its individual capacity)
which are imposed because State Street has its principal place of
business in Connecticut or performs its administrative duties under the
Operative Documents in Connecticut, and there are no Taxes under the
laws of the State of Connecticut or any political subdivision thereof
(except for Taxes on any fees payable to State Street in its individual
capacity) upon or with respect to the Aircraft or any Engine or any part
of any interest therein, or the purchase, ownership, delivery, lease,
sublease, possession, presence, use, operation, condition, storage,
maintenance, modification, alteration, repair, sale, return, transfer or
other disposition of the Aircraft or any Engine which are imposed because
State Street has its principal place of business in Connecticut or
performs its administrative duties under the Operative Documents in
Connecticut.
7. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no proceedings pending or overtly
threatened in writing against or affecting State Street in any court or
before any governmental authority, agency, arbitration board or tribunal
which, if adversely determined, individually or in the aggregate, could
reasonably be expected to affect materially and adversely the trust
related to the Indenture or affect the right, power and authority of
State Street, in its individual capacity or as Pass Through Trustee, as
the case may be, to enter into or perform its obligations under the
Operative Documents.
Very truly yours,
XXXXXXX XXXX LLP
SCHEDULE A
----------
State Street Bank and Trust Company, as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association,
as Pass Through Trustee
Northwest Airlines, Inc., as Owner
Northwest Airlines Corporation, as Guarantor
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Chase Securities Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
Exhibit J-2 to Participation Agreement
--------------------------------------
[Form of Opinion of Xxxxxxx Xxxx LLP,
special counsel for the Subordination Agent]
[_____________, ____]
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
Re: Northwest Airlines, Inc./Financing of [Airbus A319-114]
[Boeing 757-251] Aircraft [NW ____ ____] (Subordination Agent
Opinion)
--------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and
Trust Company in its individual capacity ("State Street") and as
Subordination Agent (the "Subordination Agent") under the Intercreditor
Agreement dated as of June 28, 2000 (the "Intercreditor Agreement") among
State Street Bank and Trust Company of Connecticut, National Association,
in its capacity as Trustee under the Northwest Airlines Pass Through
Trust 2000-1G, and Northwest Airlines Pass Through Trust 2000-1C, Credit
Suisse First Boston, New York branch, as Class G Liquidity Provider and
Class C Liquidity Provider, MBIA Insurance Corporation, and State Street,
as Subordination Agent in connection with the execution and delivery of
the Participation Agreement [NW ____] dated as of [________________] (the
"Participation Agreement") by and among State Street, as Indenture
Trustee, Northwest Airlines, Inc., as Owner (the "Owner"), Northwest
Airlines Corporation (the "Guarantor"), State Street Bank and Trust
Company of Connecticut, National Association, as Pass Through Trustee
(the "Pass Through Trustee") and State Street, as Subordination Agent and
the transactions contemplated thereby. Capitalized terms not otherwise
defined herein shall have the meanings specified in or referenced in the
Participation Agreement. This opinion is being delivered pursuant to
Section 4(a)(xxv) of the Participation Agreement.
Our representation of State Street and the Subordination Agent
has been as special counsel for the limited purposes stated above. As to
all matters of fact (including factual conclusions and characterizations
and descriptions of purpose, intention or other state of mind), we have
relied, with your permission, entirely upon (i) the representations and
warranties of the parties set forth in the Operative Documents and (ii)
certificates delivered to us by the management of State Street and have
assumed, without independent inquiry, the accuracy of those
representations, warranties and certificates.
We have examined the Participation Agreement, the Note
Purchase Agreement, the Intercreditor Agreement and the Policy Provider
Agreement (together, the "Operative Documents"), the Certificate of the
Massachusetts Commissioner of Banks relating to State Street and
originals, or copies certified or otherwise identified to our
satisfaction, of such other records, documents, certificates, or other
instruments as we have deemed necessary or advisable for the purposes of
this opinion. For purposes of our opinion rendered in paragraph 1 below,
with respect to the authority of State Street to operate as a state-
chartered trust company and exercise trust powers, our opinion relies
upon and is limited by such Certificate of the Massachusetts Commissioner
of Banks.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Subordination Agent), the
conformity to the originals of all documents reviewed by us as copies,
and the authenticity and completeness of all original documents reviewed
by us in original or copy form and the legal competence of each
individual executing any document (other than on behalf of State Street
and the Subordination Agent).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we
are aware or which are known to us, or with another similar
qualification, the relevant knowledge or awareness is limited to the
actual knowledge or awareness of the individual lawyer in the firm that
signed this opinion, the individual lawyers in the firm who have
participated directly in the specific transactions to which this opinion
relates and the partner of the firm responsible for State Street
corporate trust matters, and without any special or additional
investigation undertaken for the purposes of this opinion.
Subject to the limitation set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the Commonwealth of Massachusetts as applied by
courts located in Massachusetts and the federal laws of the United
States. No opinion is given herein as to the choice of law or internal
substantive rules of law that any court or other tribunal may apply to
the transactions contemplated by the Operative Documents. No opinion is
expressed herein as to the application or effect of federal securities
laws or as to the securities or so-called "Blue Sky" laws of any state or
other jurisdiction. In addition, no opinion is expressed as to matters
governed by any law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the
Aircraft.
To the extent to which this opinion deals with matters
governed by or relating to the laws of the State of New York, or other
jurisdiction other than the Commonwealth of Massachusetts, by which the
Operative Documents are stated to be governed, we have assumed, with your
permission that the Operative Documents are governed by the internal
substantive laws of the Commonwealth of Massachusetts.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
(a) We have assumed without any independent investigation
that (i) each party to the Operative Documents, other than State
Street, in its individual capacity or as Subordination Agent, as
applicable, at all times relevant thereto, is validly existing and
in good standing under the laws of the jurisdiction in which it is
organized, and is qualified to do business and in good standing
under the laws of each jurisdiction where such qualification is
required generally or necessary in order for such party to enforce
its rights under such Operative Documents, and (ii) each party to
the Operative Documents, at all times relevant thereto, had and has
the full power, authority and legal right under its certificate of
incorporation, partnership agreement, by-laws, and other governing
organizational documents, and the applicable corporate,
partnership, or other enterprise legislation and other applicable
laws, as the case may be (other than State Street and the
Subordination Agent with respect to the laws of the United States
of America and the internal substantive laws of the Commonwealth of
Massachusetts, but only in each case to the limited extent the same
may be applicable to State Street or the Subordination Agent, and
relevant to our opinions expressed below) to execute, and to
perform its obligations under, the Operative Documents, and (iii)
each party to the Operative Documents (other than State Street or
the Subordination Agent, as applicable) has duly executed and
delivered each of such agreements and instruments to which it is a
party and that (other than with respect to State Street and the
Subordination Agent, as applicable) the execution and delivery of
such agreements and instruments and the transactions contemplated
thereby have been duly authorized by proper corporate or other
organizational proceedings as to such party.
(b) We have assumed without any independent investigation
(i) that each of the Operative Documents is a valid, binding and
enforceable obligation of each party thereto other than State
Street or the Subordination Agent, as applicable, and (ii) that
each of the Operative Documents is a valid, binding and enforceable
obligation of State Street or the Subordination Agent, as
applicable, to the extent that laws other than those of the
Commonwealth of Massachusetts are relevant thereto (other than the
laws of the United States of America, but only to the limited
extent the same may be applicable to State Street or the
Subordination Agent, as applicable, and relevant to our opinions
expressed below).
(c) The enforcement of any obligations of State Street or the
Subordination Agent, as applicable, under any of the Operative
Documents may be limited by the receivership, conservatorship and
supervisory powers of bank regulatory agencies generally, as well
as by bankruptcy, insolvency, reorganization, moratorium,
marshaling or other laws and rules of law affecting the enforcement
generally of creditors' rights and remedies (including such as may
deny giving effect to waivers of debtors' or guarantors' rights);
and we express no opinion as to the status under any fraudulent
conveyance laws or fraudulent transfer laws of any of the
obligations of State Street or the Subordination Agent, as
applicable, under any of the Operative Documents.
(d) We express no opinion as the availability of any specific
or equitable relief of any kind.
(e) The enforcement of any rights may in all cases be subject
to an implied duty of good faith and fair dealing and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity) and, as to any
rights to collateral security, will be subject to a duty to act in
a commercially reasonable manner.
(f) We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating to
(i) waivers of rights to object to jurisdiction or venue, or
consents to jurisdiction or venue, (ii) waivers of rights to (or
methods of) service of process, or rights to trial by jury, or
other rights or benefits bestowed by operation of law, (iii)
waivers of any applicable defenses, setoffs, recoupments, or
counterclaims, (iv) the grant of power of attorney to any person or
entity, (v) exculpation or exoneration clauses, indemnity clauses,
and clauses relating to releases or waivers of unmatured claims or
rights, (vi) the imposition or collection of interest on overdue
interest or providing for a penalty rate of interest or late
charges on overdue or defaulted obligations, or the payment of any
premium, liquidated damages, or other amount which may be held by
any court to be a "penalty" or a "forfeiture," or (vii) so-called
"usury savings clauses" purporting to specify methods of (or
otherwise assure) compliance with usury laws or other similar laws
of any jurisdiction.
(g) We express no opinion as to the effect of events
occurring, circumstances arising, or changes of law becoming
effective or occurring, after the date hereof on the matters
addressed in this opinion letter, and we assume no responsibility
to inform you of additional or changed facts, or changes in law, of
which we may become aware.
(h) No opinion is given herein as to the effect of usury laws
(or other similar laws) of any jurisdiction with respect to the
Operative Documents.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their successors and assigns
in connection with the transactions contemplated by the Operative
Documents and may not be used or relied upon by any other person or for
any other purpose.
1. State Street is a Massachusetts trust company, validly
formed and authorized to operate as a state-chartered trust company under
the laws of the Commonwealth of Massachusetts and, in its individual
capacity or as Subordination Agent, as the case may be, has the requisite
corporate and trust power and authority to execute, deliver and perform
its obligations under the Operative Documents.
2. State Street, in its individual capacity or as
Subordination Agent, as the case may be, has duly authorized the
Operative Documents and has duly executed and delivered the Operative
Documents, and the Operative Documents constitute valid and binding
obligations of State Street, in its individual capacity or as
Subordination Agent, as the case may be, enforceable against State
Street, in its individual capacity or as Subordination Agent, as the case
may be, in accordance with their respective terms.
3. The authorization, execution, delivery and performance by
State Street, in its individual capacity or as Subordination Agent, as
the case may be, of the Operative Documents and the consummation of the
transactions therein contemplated and compliance with the terms thereof
do not and will not result in the violation of the provisions of the
charter documents or by-laws of State Street and, to the best of our
knowledge, do not conflict with, or result in a breach of any terms or
provisions of, or constitute a default under, or result in the creation
or the imposition of any lien, charge or encumbrance upon any property or
assets of State Street under any indenture, mortgage or other agreement
or instrument, in each case known to us, to which State Street is a party
or by which it is bound, or violates any applicable Massachusetts or
federal law, rule or regulation governing State Street's banking or trust
powers, or, to the best of our knowledge, of any judgment, order or
decree, in each case known to us, applicable to State Street of any
court, regulatory body, administrative agency, government or governmental
body having jurisdiction over State Street.
4. No authorization, approval, consent, license or order of,
giving of notice to, registration with, or taking of any other action in
respect of, any federal or state governmental authority or agency
pursuant to any federal or Massachusetts law governing the banking or
trust powers of State Street is required for the authorization,
execution, delivery and performance by State Street, in its individual
capacity or as Subordination Agent, as the case may be, of the Operative
Documents or the consummation of any of the transactions by State Street,
in its individual capacity or as Subordination Agent, as the case may be,
contemplated thereby (except as shall have been duly obtained, given or
taken); and such authorization, execution, delivery, performance,
consummation and issuance do not conflict with or result in a breach of
the provisions of any such law.
5. There are no taxes, fees or other governmental charges
payable under the laws of the Commonwealth of Massachusetts or any
political subdivision of such State in connection with the execution and
delivery by State Street, in its individual capacity or as Subordination
Agent, as the case may be, of the Operative Documents (except for taxes
on any fees payable to State Street in its individual capacity) which are
imposed solely because State Street has its principal place of business
in Massachusetts or performs its administrative duties under the
Operative Documents in Massachusetts.
6. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no proceedings pending or overtly
threatened in writing against or affecting State Street in any court or
before any governmental authority, agency, arbitration board or tribunal
which, if adversely determined, individually or in the aggregate, could
reasonably be expected to affect materially and adversely the trust
related to the Indenture or affect the right, power and authority of
State Street, in its individual capacity or as Subordination Agent, as
the case may be, to enter into or perform its obligations under the
Operative Documents.
7. Assuming that the Subordination Agent holds each of the
Equipment Notes delivered to and registered in its name pursuant to and
as required by the Intercreditor Agreement, it holds such Equipment Notes
in trust as trustee for the related Trustee in the exercise of the
fiduciary powers conferred upon State Street by Massachusetts law.
Very truly yours,
XXXXXXX XXXX LLP
SCHEDULE A
----------
State Street Bank and Trust Company, as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association,
as Pass Through Trustee
Northwest Airlines, Inc., as Owner
Northwest Airlines Corporation, as Guarantor
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Chase Securities Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
