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PURCHASE AGREEMENT ASSIGNMENT
[NW 1997 J]
Dated as of March 18, 1998
between
NORTHWEST AIRLINES, INC.,
Assignor
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Assignee
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One British Aerospace Avro 146-RJ85A Aircraft
U.S. Registration No. N510XJ
Manufacturer's Serial No. E2323
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PURCHASE AGREEMENT ASSIGNMENT
[NW 1997 J]
This PURCHASE AGREEMENT ASSIGNMENT [NW 1997 J], dated as of March
18, 1998 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 British Aerospace
Avro 146-RJ85A 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 1997 J], 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 right,
title and interest in and to the Contract Rights, as and to the extent that the
same relate 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 notice from the Indenture Trustee or the Owner Trustee 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 such rights and claims as Assignee may have with respect to
the Contract Rights as and to the extent the same relate to the Aircraft and,
subject to paragraph 3(c) hereof, to retain any recovery or benefit resulting
from the enforcement of the Contract Rights as and to the extent the same relate
to 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 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 assigns and at Assignor's expense, cooperate with and take such
action as reasonably necessary to enable Assignee and its successors and 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
Contract Rights as and to the extent the same relate to 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
pursuant to the Contract Rights as and to the extent the same relate to the
Aircraft (a "Manufacturer Payment"), 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 such Event 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 the 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
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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 received written notice from the Indenture Trustee or the
Owner Trustee that an Event of Default under the Lease has occurred and is
continuing or that all Events of Default have been cured or waived unless such
notice shall be in writing, shall be signed by an authorized officer of the
Owner Trustee or the Indenture Trustee, shall have been addressed to the
Manufacturer at Aero International (Regional), ▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, Attn.: SVP Commercial (telecopy 011 33 5 6221 6321) with
a copy to Aero International (Regional) Marketing Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn.: Contracts Director (telecopy (▇▇▇) ▇▇▇-▇▇▇▇) and
three Business Days shall have elapsed from the date of actual receipt by the
Manufacturer 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 Contract Rights, the terms and
conditions of the Purchase Agreement (including, without limitation, the
warranty disclaimer and indemnity provisions in the Manufacturer Support
Agreement which is part of 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
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(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, and the Manufacturer by its execution and
delivery of the Consent and Agreement, 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 and, on a subordinate basis, to any Sublessee.
7. No Amendment of Purchase Agreement. Assignee agrees that it will
not enter into any amendment, modification, supplement, rescission, cancellation
or termination of the Manufacturer Support Agreement in respect of the Contract
Rights, as and to the extent the same relate to 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.
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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. Unless the context otherwise require, the following
terms shall have the following meanings for all purposes of this Assignment and
shall be equally applicable to both the singular and the plural forms of the
terms herein defined:
"Aircraft" means the British Aerospace Avro 146-RJ85A aircraft
specified in the Lease Supplement, together with the four Engines.
"Contract Rights" means all of Assignor's right, title and
interest in and to Part H and Part J of the Manufacturer Support
Agreement, as and to the extent that the same relate to the
warranties with respect to the Aircraft, including, without
limitation, (a) all claims for damages in respect of the Aircraft
arising as a result of any default by the Manufacturer under Part H
or Part J of the Manufacturer Support Agreement, including, without
limitation, all warranty, service life policy and indemnity
provisions in Part H and Part J of the Manufacturer Support
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 Part H and Part J of the Manufacturer Support Agreement in
support thereof.
"Engine" means each of the four AlliedSignal LF507 type
engines listed by manufacturer's serial number in the Lease
Supplement.
"Lease" means the Lease Agreement [NW 1997 J], dated as of
March 18, 1998, between Assignor and Assignee.
"Lease Supplement" means a Lease Supplement substantially in
the form of Exhibit A to the Lease, entered into between Assignor
and Assignee on the date the Aircraft is leased by Assignee to
Assignor and accepted by Assignor under the Lease.
"Manufacturer" means British Aerospace (Operations) Limited, a
limited company incorporated under the laws of England and Wales,
and its successors and assigns.
"Manufacturer Support Agreement" means the Manufacturer
Support Agreement, dated February 5, 1997, between the Manufacturer
and Assignor.
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"Operative Documents" shall have the meaning specified in the
Lease.
"Participation Agreement" shall have the meaning specified in
the Lease.
"Purchase Agreement" means the Sale and Purchase Agreement,
dated as of February 5, 1997, between the Manufacturer and Assignor
relating to the purchase by Assignor of the Aircraft (including the
Manufacturer Support Agreement), as originally executed or as
modified, amended or supplemented in accordance with the terms
thereof, but only insofar as the foregoing relates to the Aircraft.
"Sublessee" shall have the meaning specified 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: s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President and Controller
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee,
as Assignee
By: s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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, and of the
Purchase Agreement.
STATE STREET BANK AND
TRUST COMPANY,
not in its individual capacity
but solely as Indenture Trustee
By: s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President