Exhibit 99(d)
[For A330]
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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 Airbus A330-323
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 Supplier has agreed
to sell and Assignor has agreed to purchase several Airbus A330-323 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, pursuant to a Guaranty attached to the Purchase Agreement
(such guaranty, together with all amendments, waivers and consents heretofore
entered into and heretofore granted thereunder, the "Guaranty") of Airbus
G.I.E. (f/k/a Airbus Industrie G.I.E.), a groupement d'interet economique
established under the laws of the Republic of France (the "Manufacturer"), the
Manufacturer has agreed, among other things, to unconditionally guarantee the
due and punctual performance by the Supplier of all of its liabilities and
obligations as set forth in the Purchase Agreement;
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 executed by the Manufacturer and the Supplier attached
hereto, desires to assign to Assignee certain of Assignor's rights and
interests in and under the Purchase Agreement and the Guaranty 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, all of Assignor's rights and interests in and to (i)
Clauses 12, 13 and, to the extent relating to acts to be performed following
the date of enforcement of this Purchase Agreement Assignment, 17 of the
Purchase Agreement (but not any other provision of the Purchase Agreement or
any letter agreement referred to therein) as such Clauses relate to the
Aircraft (the "Assigned Warranties"), and (ii) the Guaranty as it relates to
the Assigned Warranties; reserving to Assignor, however, all of Assignor's
rights and interests in and to Clauses 12, 13 and, to the
extent relating to acts to be performed following the date of enforcement of
this Purchase Agreement Assignment, 17 of the Purchase Agreement and the
Guaranty as and to the extent that such Clauses of the Purchase Agreement and
the Guaranty relate to aircraft other than the Aircraft and to the extent that
the Purchase Agreement and the Guaranty relate to any other matters not
directly pertaining 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) With respect to the assignment contained in paragraph 1 hereof,
and notwithstanding the foregoing, if and so long as (A) the Aircraft shall be
subject to the Lease and (B) no 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) all rights and
powers related to the Assigned Warranties and the Guaranty as it relates to
the Assigned Warranties and (ii) subject to paragraph 3(c) hereof, to retain
any recovery or benefit resulting from the enforcement of any Assigned
Warranties in respect of the Aircraft or resulting from the enforcement of the
Guaranty in respect of the same, 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) In the event that an Event of Default under the Lease has
occurred and is continuing and thereafter until 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 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 or the Guaranty 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 (but subject to all the terms of the Purchase Agreement), all amounts
that the Supplier or the
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Manufacturer is obligated to pay to Assignor under Clauses 12, 13 and, to the
extent relating to acts to be performed following the date of enforcement of
this Purchase Agreement Assignment, 17 of the Purchase Agreement with respect
to the Aircraft or the Guaranty as it relates to such Clauses (a "Supplier
Payment"), will be payable and applicable as follows: so long as the Aircraft
is subject to the Lease, all Supplier Payments shall be paid to Assignor
unless and until an Event of Default under the Lease has occurred and is
continuing, whereupon the Assignee shall direct the Supplier to make all
Supplier Payments directly to the Indenture Trustee or (if written notice has
been given to the Supplier and the Manufacturer 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.
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 Supplier under the Purchase
Agreement in respect of the Aircraft to perform all of the duties and
obligations of "Northwest" 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 Supplier 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, neither Assignee nor any of its successors or assigns
shall 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 Supplier and the Manufacturer that, insofar as the provisions of the
Purchase Agreement relate to the Aircraft, in exercising any rights under the
Purchase Agreement or the Guaranty, or in making any claim with respect to the
Aircraft or other goods and services delivered or to be delivered pursuant to
the Purchase Agreement or the Guaranty, the terms and conditions of the
Purchase Agreement and the Guaranty 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 and the Guaranty and the forms of Manufacturer and Supplier
consents to this Agreement and to understand thoroughly the terms and
conditions thereof.
(c) Nothing contained herein shall (i) subject the Supplier or the
Manufacturer to any liability to which it would not otherwise be subject under
the Purchase Agreement or the Guaranty or (ii) modify in any respect the
Supplier's or 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 ▇▇▇▇▇ Fargo Bank Northwest, 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 or the Guaranty 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,
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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 (notices
to the Supplier shall be sent to the address for the Supplier set forth in
Section 14), notice hereunder may be given, and shall be deemed to have been
received when given, as provided in Section 17 of the Lease.
13. Limitation on Transfer. Except as provided in the next sentence,
Assignee agrees that it may not sell, assign or otherwise transfer any of the
Assigned Warranties or the Guaranty as it relates to the Assigned Warranties
without the prior written consent of the Supplier and the Manufacturer, except
in connection with the exercise of remedies under the Trust Indenture.
Assignor consents to the assignment by Assignee to the Indenture Trustee, as
security for the Secured Certificates to be issued under the Trust Indenture
and the other obligations secured thereby as specified in the Trust Indenture,
of all of Assignee's rights and interests in and to the Purchase Agreement and
the Guaranty under this Assignment.
14. Requirement of Notice to the Supplier. For all purposes of this
Assignment, the Supplier and the Manufacturer shall not be deemed to have
knowledge of and need not recognize any Event of Default, unless and until the
Supplier shall have received written notice thereof from Assignee or the
Indenture Trustee addressed to its Chief Executive Officer, ▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (telex 521155F) (fax:
011-33-5-61-93-49-77) and, in acting in accordance with the terms of the
Purchase Agreement, the Guaranty and this Assignment, the Supplier and the
Manufacturer may act with acquittance and conclusively rely upon such notice.
15. 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 and the Guaranty
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 and the Guaranty.
STATE STREET BANK AND
TRUST COMPANY,
Not in its individual capacity
but solely as Indenture Trustee
By: ___________________________________
Name:
Title:
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