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