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PURCHASE AGREEMENT ASSIGNMENT
[NW 1999 _]
Dated as of [___________]
between
NORTHWEST AIRLINES, INC.,
Assignor
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Assignee
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One Boeing 747-451
Aircraft
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PURCHASE AGREEMENT ASSIGNMENT
[NW 1999 _]
This PURCHASE AGREEMENT ASSIGNMENT [NW 1999 _], dated as of
[___________] between NORTHWEST AIRLINES, INC., a Minnesota corporation
("Assignor"), and FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner Trustee ("Assignee").
W I T N E S S E T H:
WHEREAS, pursuant to the Purchase Agreement, the Manufacturer has
agreed to sell and Assignor has agreed to purchase several Boeing 747-451
aircraft, including the Aircraft covered by the Participation Agreement;
WHEREAS, pursuant to the Participation Agreement, Assignor has
agreed to sell, and Assignee has agreed to purchase, the Aircraft;
WHEREAS, Assignor and Assignee are entering into a Lease Agreement
[NW 1999 _], dated as of the date hereof (as the same may hereafter from time to
time be supplemented, amended or modified, the "Lease"), pursuant to which the
Aircraft will be leased by Assignee to Assignor; and
WHEREAS, Assignor, on the terms and conditions herein and in the
Consent and Agreement of the Manufacturer attached hereto, desires to assign to
Assignee certain of Assignor's rights and interests in and under the Purchase
Agreement relating to the Aircraft, and Assignee desires to accept such
assignment, as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the parties hereto
agree as follows:
1. Assignment; Rights Reserved. Subject to the provisions of
paragraph 3(a) hereof, Assignor does hereby sell, assign, transfer and set over
unto Assignee, except to the extent reserved below, all of Assignor's rights and
interests in and to the Purchase Agreement, as and to the extent that the same
relate to the Aircraft and the operation thereof, including, without limitation,
(a) all claims for damages in respect of the Aircraft arising as a result of any
default by the Manufacturer under the Purchase Agreement, including, without
limitation, all warranty, service life policy, aircraft performance guarantee
and indemnity provisions in the Purchase Agreement in respect of the Aircraft
and all claims thereunder and (b) any and all rights of Assignor to compel
performance of the terms of the Purchase Agreement in respect of the Aircraft;
reserving to Assignor, however, (i) all of Assignor's rights and interests in
and to the Purchase Agreement as and to the extent that it relates to any
matters not in respect of the Aircraft, (ii) all of Assignor's rights and
interests under the Purchase Agreement (other than under Articles 8.3 and 8.4
and Exhibit B (Product Assurance
Document) thereof), (iii) all of Assignor's rights and interests in or arising
out of any payments or deposits made or to be made by Assignor or amounts
credited or to be credited or paid or to be paid by the Manufacturer to Assignor
in respect of the Aircraft under the Purchase Agreement, (iv) all of Assignor's
rights and interests in and to any Spare Parts General Terms Agreement and (v)
with respect to the Aircraft so long, and only so long, as the Manufacturer
shall not have received written notice from the Indenture Trustee or the Owner
Trustee (including by mail, courier, telex, or telecopy thereof from the
Indenture Trustee or the Owner Trustee addressed to the Manufacturer's Vice
President - Contracts at ▇.▇. ▇▇▇ ▇▇▇▇, Mail Code 21-34, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ if by
mail; ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇.▇., ▇/▇ ▇▇-▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, if by courier;
▇▇▇-▇▇▇-▇▇▇▇ if by telecopy and 32-9430 (answerback BOEINGREN), if by telex)
that an Event of Default under the Lease has occurred and is continuing, all
rights to demand, accept and retain all rights in and to property (other than
the Aircraft), data, documents, training and services of any kind which the
Manufacturer is obligated to provide or does provide pursuant to the Purchase
Agreement with respect to the Aircraft.
2. Acceptance of Assignment. Assignee hereby accepts the assignment
contained in paragraph 1 hereof.
3. Rights of Assignor in Absence of Event of Default.
(a) Notwithstanding the foregoing, if and so long as (A) the
Aircraft shall be subject to the Lease and (B) the Manufacturer shall not have
received written notice from the Indenture Trustee or the Owner Trustee
(including by mail, courier, telex, or telecopy thereof from the Indenture
Trustee or the Owner Trustee addressed to the Manufacturer's Vice President
Contracts at ▇.▇. ▇▇▇ ▇▇▇▇, Mail Code 21-34, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ if by mail; ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇.▇., ▇/▇ ▇▇-▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, if by courier; ▇▇▇-▇▇▇-▇▇▇▇ if
by telecopy and 32-9430 (answerback BOEINGREN), if by telex) that an Event of
Default under the Lease has occurred and is continuing, (1) Assignee authorizes
Assignor, on behalf of but to the exclusion of Assignee, to exercise in
Assignor's own name (i) such rights and powers of the "Buyer" under the Purchase
Agreement and (ii) such rights as Assignee may have with respect to the Aircraft
under any warranty, covenant, representation, service life policy, aircraft
performance guarantee, indemnity or product support agreement of the
Manufacturer or any subcontractor or vendor with respect thereto and, subject to
paragraph 3(c) hereof, to retain any recovery or benefit resulting from the
enforcement of any warranty, covenant, representation, service life policy,
aircraft performance guarantee, indemnity, or product support agreement of the
Manufacturer or any subcontractor or vendor under the Purchase Agreement in
respect of the Aircraft, and (2) Assignee shall, at Assignor's expense,
cooperate with Assignor and take such actions as Assignor reasonably deems
necessary to enable Assignor to enforce such rights and claims.
(b) Effective upon the receipt by the Manufacturer of written notice
from the Indenture Trustee or the Owner Trustee that an Event of Default under
the Lease has occurred and is continuing and thereafter until the Manufacturer
shall have received written notice from the Indenture Trustee or the Owner
Trustee that such Event of Default has been cured or
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waived: (i) at Assignee's option, the authorization given to Assignor under
paragraph 3(a) hereof to enforce such rights and claims shall henceforth cease
to be effective and Assignee and its successors and permitted assigns shall, to
the exclusion of Assignor, be entitled to assert and enforce such rights and
claims as substitute party plaintiff or otherwise, and Assignor shall, at the
request of Assignee or its successors or permitted assigns and at Assignor's
expense, cooperate with and take such action as reasonably necessary to enable
Assignee and its successors and permitted assigns to enforce such rights and
claims, and Assignee, if it shall elect to enforce such rights or claims, shall
use its best efforts to assert and enforce such rights and claims, and (ii)
Assignor will be deemed to have irrevocably constituted Assignee and its
successors and permitted assigns Assignor's true and lawful attorney (it being
acknowledged that such appointment is coupled with an interest, namely
Assignee's rights acquired and to be acquired hereunder) with full power (in the
name of Assignor or otherwise) to ask, require, demand, receive, settle,
compromise, compound and give acquittance for any and all monies and claims for
monies due and to become due under, or arising out of, the Purchase Agreement in
respect of the Aircraft, to the extent that the same have been assigned by this
Assignment, and for such period as Assignee may exercise rights with respect
thereto under this clause (ii), to endorse any checks or other instruments or
orders in connection therewith and to file any claims or take any action or
institute (or, if previously commenced, assume control of) any proceedings and
to obtain any recovery in connection therewith which Assignee may deem to be
necessary or advisable in the premises.
(c) Notwithstanding this Assignment and anything herein to the
contrary, all amounts that the Manufacturer is obligated to pay to Assignor
under the Purchase Agreement with respect to the Aircraft, including, without
limitation, in respect of refunds thereunder or resulting from the enforcement
of any warranty, service life policy, aircraft performance guarantee or
indemnity or product support agreement thereunder or the enforcement or exercise
of any right or power under the Purchase Agreement or hereunder (a "Manufacturer
Payment") (excluding, however, from the Manufacturer Payments any amounts the
Manufacturer is obligated to pay to Assignor with respect to the rights reserved
to Assignor in clauses (i) through (v) of paragraph 1 hereof, which shall at all
times be paid to Assignor), will be payable and applicable as follows: so long
as the Aircraft is subject to the Lease, all the Manufacturer Payments shall be
paid to Assignor unless and until the Manufacturer shall have received written
notice from the Indenture Trustee or the Owner Trustee that an Event of Default
under the Lease has occurred and is continuing, whereupon the Manufacturer will,
until the Manufacturer shall have received written notice from the Indenture
Trustee or the Owner Trustee that all Events of Default under the Lease have
been cured or waived, make any and all such payments directly to the Indenture
Trustee or (if written notice has been given to the Manufacturer by Assignee
that the Trust Indenture is no longer in effect in accordance with its terms and
all amounts due and payable under the Secured Certificates have been paid in
full) Assignee. Any amounts received by Assignee pursuant to the immediately
preceding sentence shall, to the extent not theretofore applied in satisfaction
of sums owing to Assignee in accordance with the terms of the Lease, be returned
to Assignor promptly after all Events of Default under the Lease have been cured
or waived.
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(d) For all purposes of this Assignment, the Manufacturer shall not
be deemed to have knowledge of an Event of Default under the Lease or of the
discontinuance or waiver of an Event of Default unless and until the
Manufacturer shall have received written notice thereof from the Owner Trustee
or the Indenture Trustee (including by mail, courier, telex, or telecopy thereof
from the Indenture Trustee or the Owner Trustee addressed to the Manufacturer's
Vice President - Contracts at ▇.▇. ▇▇▇ ▇▇▇▇, Mail Code 21-34, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
if by mail; ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇.▇., ▇/▇ ▇▇-▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, if by
courier; ▇▇▇-▇▇▇-▇▇▇▇ if by telecopy and 32-9430 (answerback BOEINGREN), if by
telex) and, in acting in accordance with the terms and conditions of the
Purchase Agreement and this Assignment, the Manufacturer may rely conclusively
upon any such notice.
4. Certain Rights and Obligations of the Parties.
(a) Anything herein contained to the contrary notwithstanding: (i)
Assignor shall at all times remain liable to the Manufacturer under the Purchase
Agreement in respect of the Aircraft to perform all of the duties and
obligations of "Buyer" thereunder to the same extent as if this Assignment had
not been executed; (ii) the exercise by Assignee of any of the rights assigned
hereunder shall not release Assignor from any of its duties or obligations to
the Manufacturer under the Purchase Agreement in respect of the Aircraft except
to the extent that such exercise by Assignee shall constitute performance of
such duties and obligations; and (iii) except as provided in paragraph 4(b)
hereof, Assignee shall not have any obligation or liability under the Purchase
Agreement by reason of, or arising out of, this Assignment or be obligated to
perform any of the obligations or duties of Assignor under the Purchase
Agreement or to make any payment or make any inquiry as to the sufficiency of
any payment received by it or to present or to file any claim or to take any
other action to collect or enforce any claim for any payment assigned hereunder.
(b) Without in any way releasing Assignor from any of its duties or
obligations under the Purchase Agreement, Assignee confirms for the benefit of
the Manufacturer that, insofar as the provisions of the Purchase Agreement
relate to the Aircraft, in exercising any rights under the Purchase Agreement,
or in making any claim with respect to the Aircraft or other things delivered or
to be delivered pursuant to the Purchase Agreement, the terms and conditions of
the Purchase Agreement (including, without limitation, the warranty disclaimer
and indemnity provisions in the product assurance and customer support
documents, Exhibits B and C, respectively, to the Purchase Agreement) shall
apply to, and be binding upon, Assignee to the same extent as Assignor. Assignee
hereby confirms that it shall be deemed for all purposes to have read and be
familiar with the Purchase Agreement (insofar as it relates to the Aircraft) and
to understand thoroughly the terms and conditions thereof.
(c) Nothing contained herein shall (i) subject the Manufacturer to
any liability to which it would not otherwise be subject under the Purchase
Agreement or (ii) modify in any respect the Manufacturer's contract rights
thereunder, except as provided in the Consent and Agreement attached hereto.
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(d) The parties hereto agree that all of the statements,
representations, covenants and agreements made by Assignee as Owner Trustee
(when made in such capacity) contained in this Assignment and any agreement
referred to herein or in the Participation Agreement other than the Trust
Agreement, unless expressly otherwise stated, are made and intended only for the
purpose of binding the Trust Estate and establishing the existence of rights and
remedies which can be exercised and enforced against the Trust Estate.
Therefore, anything contained in this Assignment or such other agreements to the
contrary notwithstanding (except for any express provisions that Assignee is
responsible for in its individual capacity), no recourse shall be had with
respect to this Assignment or such other agreements against Assignee in its
individual capacity or against any institution or person which becomes a
successor trustee or co-trustee or any officer, director, trustee, servant or
direct or indirect parent or controlling person or persons of any of them;
provided, however, that this Section 4(d) shall not be construed to prohibit any
action or proceeding against First Security Bank, National Association, for its
own willful misconduct or grossly negligent conduct for which it would otherwise
be liable; and provided, further, that nothing contained in this Section 4(d)
shall be construed to limit the exercise and enforcement in accordance with the
terms of this Assignment or such other agreements of rights and remedies against
the Trust Estate. The foregoing provisions of this Section 4(d) shall survive
the termination of this Assignment and the other Operative Documents.
5. Further Assurances. Assignor agrees that at any time and from
time to time Assignor will promptly and duly execute and deliver any and all
such further instruments and documents and take such further action as Assignee
may reasonably request in writing in order to obtain the full benefits of this
Assignment and of the rights and powers herein granted, provided, however, that
the execution and delivery of any such instrument or document shall not in any
way limit or restrict the rights or enlarge the obligations of Assignor in
respect of any of the Operative Documents.
6. Assignor's Representations, Warranties and Covenants. Assignor
does hereby represent and warrant that Assignor has not assigned or pledged, and
hereby covenants that it will not assign or pledge, so long as this Assignment
shall remain in effect, the whole or any part of the rights hereby assigned to
anyone other than Assignee.
7. No Amendment of Purchase Agreement. Assignee agrees that it will
not enter into any amendment, modification, supplement, rescission, cancellation
or termination of the Purchase Agreement in respect of the Aircraft without the
prior written consent of Assignor.
8. Execution of Assignment. This Assignment is being executed and
delivered by Assignor and Assignee concurrently with the execution and delivery
of the Lease.
9. Binding Effect. This Assignment shall be binding upon and shall
inure to the benefit of Assignor, Assignee and their respective successors and
permitted assigns.
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10. GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS ASSIGNMENT IS BEING
DELIVERED IN THE STATE OF NEW YORK.
11. Definitions. All terms not defined herein, which are used herein
in capitalized form and which are defined in the Lease, shall when used herein
have the meanings specified or referred to in the Lease.
12. Notice. Except as otherwise expressly provided herein, notice
hereunder may be given, and shall be deemed to have been received when given, as
provided in Section 17 of the Lease.
13. Counterparts. This Assignment may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all of such counterparts shall together constitute but
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement Assignment to be duly executed as of the day and year first above
written.
NORTHWEST AIRLINES, INC.,
as Assignor
By:______________________________________
Name:
Title:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
Not in its individual capacity
but solely as Owner Trustee,
as Assignee
By:______________________________________
Name:
Title:
The undersigned, not in its individual capacity but solely as
Indenture Trustee for the benefit of the holders of Secured Certificates and as
assignee of, and holder of a security interest in and to the foregoing Purchase
Agreement Assignment and the Purchase Agreement pursuant to such Purchase
Agreement Assignment, agrees to the terms of the foregoing Purchase Agreement
Assignment and agrees that its rights and remedies under such Purchase Agreement
Assignment shall be subject to the terms and conditions thereof, including
paragraph 4(b), and of the Purchase Agreement.
STATE STREET BANK AND
TRUST COMPANY,
Not in its individual capacity
but solely as Indenture Trustee
By:______________________________________
Name:
Title:
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