Exhibit 10.53
ATTACHMENT I
to Amendment and Consent
to First Credit Agreement
FIRST AMENDMENT
TO FIRST AIRCRAFT MORTGAGE AND SECURITY AGREEMENT
FIRST AMENDMENT TO AIRCRAFT MORTGAGE AND SECURITY AGREEMENT (this
"Amendment"), dated as of November 12, 1998, by and between NORTHWEST AIRLINES,
INC., a Minnesota corporation (together with its successors and permitted
assigns, the "Company") and BANKERS TRUST COMPANY, as Collateral Agent (the
"Collateral Agent"). All capitalized terms used herein and not otherwise
defined shall have the respective meanings provided to such terms in the
Aircraft Mortgage and Security Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Northwest Airlines Corporation, a Delaware corporation, NWA
Inc., a Delaware corporation, the Company, the Banks (as defined in the First
Credit Agreement), ABN Amro Bank N.V., as Compliance Agent, Bankers Trust
Company, as Administrative Agent, Chase Securities Inc., as Syndication Agent,
Citibank N.A., as Documentation Agent, and National Westminster Bank Plc and
U.S. Bank National Association, as Agents are parties to a Credit Agreement
dated as of December 15, 1995, as amended and restated as of October 16, 1996,
as further amended and restated as of December 29, 1997, as further amended as
of January 23, 1998 and as further amended on May 12, 1998 (as amended, modified
and/or supplemented through the date hereof, the "First Credit Agreement");
WHEREAS, the Company and the Collateral Agent, for the benefit of the
Banks and the Administrative Agent under, and any other lender from time to time
party to, the First Credit Agreement, are parties to an Aircraft Mortgage and
Security Agreement dated as of May 12, 1998 (as amended, modified and/or
supplemented through the date hereof, the "First Aircraft Mortgage Agreement");
WHEREAS, the parties hereto wish to amend certain provisions of the
First Aircraft Mortgage Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 3.4 of the First Aircraft Mortgage Agreement is hereby
amended by inserting the following new Section 3.4(f) immediately after Section
3.4(e) appearing therein:
"(f) SUBSTITUTION OF AIRCRAFT.
(I) The Company shall have the right at its option at any time,
on at least five (5) Business Days' prior written notice to the Collateral
Agent, to substitute for one or more Aircraft one or more Replacement
Aircraft so long as on the date of such replacement no Event of Default
shall have occurred and be continuing, such Replacement
Aircraft are free and clear of all Liens except Permitted Liens and the
aggregate appraised value (as determined by an appraisal, dated not
more than ten Business Days prior to the date of such substitution, by
an independent appraisal firm satisfactory, at the time of such
appraisal, to the Collateral Agent setting forth the fair market value,
as determined in accordance with the definition of "fair market value"
promulgated by the International Society of Transport Aircraft Trading,
as of the date of such appraisal, of the Replacement Aircraft) of the
Replacement Aircraft shall be not less than the aggregate Appraised
Value of the Aircraft for which the Replacement Aircraft are being
substituted (as determined in accordance with the most recent Appraisal
of such Aircraft).
(II) Upon the Company having provided Replacement Aircraft as
provided for in Section 3.4(f)(I) above, the Lien of this Mortgage shall
continue with respect to such Replacement Aircraft as though no
substitution had occurred; the Collateral Agent shall, at the cost and
expense of the Company, release from the Lien of this Mortgage the replaced
Aircraft upon the occurrence of the substitution by executing and
delivering to the Company such documents and instruments, prepared at the
Company's expense, as the Company may reasonably request to evidence such
release.
(III) CONDITIONS TO AIRCRAFT SUBSTITUTION:
(i) The Company's right to make a substitution under Section
3.4(f)(I) hereof shall be subject to the fulfillment, at the Company's
sole cost and expense and in addition to the conditions contained in
such Section 3.4(f)(I), of the following conditions precedent:
(A) a Mortgage Supplement covering the Replacement Aircraft
(filed for recording pursuant to the Federal Aviation Act, or the
applicable laws, rules and regulations of any other jurisdiction
in which the relevant Aircraft may then be registered as
permitted hereby);
(B) an appraisal for the Replacement Aircraft satisfying
the requirements of Section 3.4(f)(I);
(C) such Uniform Commercial Code financing statements
covering the Lien created by this Mortgage as deemed necessary or
desirable by counsel for the Collateral Agent to protect the
security interests of the Collateral Agent in the Replacement
Aircraft; and
(ii) The Collateral Agent shall have received from the Company
such documents and evidence with respect to the Company as the
Collateral Agent may reasonably request in order to establish the
consummation of the transactions contemplated by this Section 3.4(f),
evidence of taking of all necessary corporate action in connection
therewith and compliance with the conditions set forth in this Section
3.4(f), in each case in form and substance reasonably satisfactory to
the Collateral Agent;
(iii) The Company shall cause the Replacement Aircraft to be
subject to the Lien of this Mortgage, free and clear of Liens (other
than Permitted Liens);
(iv) The Replacement Aircraft shall have been duly certified
by the FAA
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or the relevant body or agency of the jurisdiction then
applicable to the registration of the Aircraft to be replaced as to
type and airworthiness in accordance with the terms of this Mortgage,
and the registration of the Replacement Aircraft in the name of the
Company (or any Lessee as lessee if the Aircraft to be replaced had
been so registered immediately prior to such substitution) shall have
been duly made with the FAA or the relevant body or agency of the
jurisdiction then applicable to the registration of the Airframe to be
replaced;
(v) The Collateral Agent shall have received evidence
satisfactory to it with respect to the matters covered by
subparagraphs (iii) and (iv) above;
(vi) The Collateral Agent shall, at the expense of the Company,
have received (A) an opinion addressed to the Collateral Agent,
reasonably satisfactory in form and substance to the Collateral Agent,
from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ or other counsel selected by the
Company and reasonably satisfactory to the Collateral Agent to the
effect that (x) the Replacement Aircraft, has or have been made
subject to the Lien of this Mortgage and (y) all required action has
been taken in order to maintain, and such action shall maintain, the
effectiveness and priority of the interests in the Collateral which
the Mortgage purports to create and (B) an opinion of qualified FAA
counsel or, if applicable, qualified local counsel in the jurisdiction
where the Aircraft to be replaced is registered, in either case
addressed to the Collateral Agent and in form and substance
satisfactory to the Collateral Agent, respecting the due recordation
of the Mortgage Supplement as a first priority Lien respecting such
Replacement Aircraft, the registration of the ownership thereof and
freedom from Liens of record (other than Permitted Liens);
(vii) The Company shall have delivered to the Collateral
Agent (A) a copy of the original ▇▇▇▇ of sale respecting such
Replacement Aircraft, and (B) appropriate instruments assigning to the
Collateral Agent the benefits, if any, of all manufacturer's and
vendor's warranties generally available and permitted to be assigned
by the Company with respect to such Replacement Aircraft.
(viii) The Collateral Agent shall have received evidence
satisfactory to the Collateral Agent as to the due compliance with
Section 3.6 hereof with respect to the Replacement Aircraft; and
(ix) The following statement shall be true and the Collateral
Agent shall have received an Officer's Certificate of the Company,
dated the date of such substitution, stating that each of the
conditions specified in this paragraph (III) with respect to such
Replacement Aircraft, and any comparable provisions of any lease
permitted hereby to which such Aircraft is subject, have been
satisfied."
2. Section 7.12(a) of the First Aircraft Mortgage Agreement is
hereby amended by deleting the last sentence thereof and inserting in lieu
thereof the following new sentence:
"As used in this Mortgage, "Termination Date" shall mean the
earlier to occur of (x) the Temporary Amendment Expiry Date which
shall only be deemed to occur if the conditions set forth in paragraph
3 of the Temporary Amendment as
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such paragraph 3 is amended by the Amendment and Consent to the
Credit Agreement, dated as of November 12, 1998 are satisfied and
(y) the first date upon which the Total Commitment and all Letters
of Credit have been terminated, no Note is outstanding (and all
Loans have been paid in full) and all other Obligations then owing
have been paid in full."
3. Appendix A to the First Aircraft Mortgage Agreement is hereby
amended by deleting the definitions of Aircraft, Airframe and Replacement
Airframe appearing therein and inserting the following new definitions in lieu
thereof:
" 'Aircraft' means each of the Airframes (or any airframes which
are part of any Replacement Aircraft substituted therefor pursuant to
Section 3.4 or 3.5 of the Mortgage) together with the Engines (if any)
installed thereon (or any Replacement Engines substituted for said Engines
pursuant to Section 3.4 of the Mortgage), whether or not any of such
initial or substitute Engines may from time to time be installed on such
Airframe or may be installed on any other airframe or on any other
aircraft."
" 'Airframes' means each of the airframes described in Section
2.1(a) of the Mortgage together with any and all Parts (other than Engines
or engines), and any airframes which are part of any Replacement Aircraft
that may from time to time be substituted pursuant to Section 3.4 or 3.5 of
the Mortgage; so long as the same shall be incorporated or installed
therein or attached thereto."
" 'Replacement Airframe' means an aircraft (except Engines or
engines from time to time installed thereon) which shall have been made
subject to the Lien of the Mortgage pursuant to Section 3.4 or 3.5
thereof."
4. This Amendment is limited precisely as written and shall not be
deemed to be a modification, acceptance or waiver of any other term, condition
or provision of the First Aircraft Mortgage Agreement or any of the instruments
or agreements referred to therein.
5. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Agent.
6. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
7. This Amendment shall become effective for all purposes on the
date (the "Amendment Effective Date") when the Company and the Collateral Agent
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Collateral Agent at its Notice Office.
8. From and after the Amendment Effective Date all references in any
Credit Document to the First Aircraft Mortgage Agreement shall be deemed to be
references to such First Aircraft Mortgage Agreement as amended hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment to the First Aircraft
Mortgage Agreement as of the date first above written.
NORTHWEST AIRLINES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President Finance and
Chief Accounting Officer
BANKERS TRUST COMPANY
as Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President