Exhibit 4(b)(2)
EXECUTION COPY
This Trust Supplement No. 2002-1G-2, dated as of August 5, 2002
(herein called the "Trust Supplement"), by and among Northwest Airlines
Corporation, a Delaware corporation (the "Guarantor"), Northwest Airlines,
Inc., a Minnesota corporation (the "Company"), and State Street Bank and Trust
Company of Connecticut, National Association (the "Trustee"), to the Pass
Through Trust Agreement, dated as of June 3, 1999, by and among the Guarantor,
the Company and the Trustee (the "Basic Agreement").
W I T N E S S E T H:
WHEREAS, the Basic Agreement, unlimited as to the aggregate
principal amount of Certificates which may be issued thereunder, has
heretofore been executed and delivered;
WHEREAS, unless otherwise specified herein, capitalized terms
used herein without definition having the respective meanings specified
heretofore in the Basic Agreement;
WHEREAS, the Company intends to finance or refinance the
acquisition of eleven new Airbus A319-100 aircraft, six new Boeing 757-300
aircraft and three new Airbus 330-300 aircraft (the "Aircraft"), as selected
by the Company out of the fifteen Airbus A319-100 aircraft, eleven Boeing
757-300 aircraft and six Airbus A330-300 aircraft scheduled for delivery from
October 2002 through December 2003 (the "Eligible Aircraft"), either (i)
through separate secured loan transactions, in which case the Company will own
such aircraft (collectively, the "Owned Aircraft") or (ii) through separate
leveraged lease transactions, in which case the Company will lease such
aircraft (collectively, the "Leased Aircraft");
WHEREAS, in the case of an Owned Aircraft, the Company will
issue Equipment Notes to finance a portion of the purchase price of such Owned
Aircraft;
WHEREAS, in the case of a Leased Aircraft, each Owner Trustee,
acting on behalf of its respective Owner Participant, will issue, on a
non-recourse basis, Equipment Notes, among other things, to finance a portion
of the purchase price of such Leased Aircraft;
WHEREAS, pursuant to the terms and conditions of the Basic
Agreement as supplemented by this Trust Supplement (the "Agreement"), the
Trustee shall purchase such Equipment Notes issued by each Owner Trustee or
the Company, as the case may be, having the same interest rate as, and final
maturity dates not later than the final Regular Distribution Date of, the
Certificates issued hereunder and shall hold such Equipment Notes in trust for
the benefit of the Certificateholders;
WHEREAS, the Trustee hereby declares the creation of this Trust
(the "2002 - 1G-2 Trust" or the "Applicable Trust") for the benefit of the
Applicable Certificateholders, and the initial Applicable Certificateholders
as the grantors of the 2002 - 1G-2 Trust, by their respective acceptances of
the Applicable Certificates, join in the creation of this 2002-1G-2 Trust with
the Trustee;
WHEREAS, all of the conditions and requirements necessary to
make this Trust Supplement, when duly executed and delivered, a valid, binding
and legal instrument in
accordance with its terms and for the purposes herein expressed, have been
done, performed and fulfilled, and the execution and delivery of this Trust
Supplement in the form and with the terms hereof have been in all respects
duly authorized; and
WHEREAS, this Trust Supplement is subject to the provisions of
the Trust Indenture Act of 1939, as amended, and shall, to the extent
applicable, be governed by such provisions.
NOW THEREFORE, in consideration of the premises herein, it is
agreed by and among the Guarantor, the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. The Certificates. There is hereby created a
series of Certificates to be issued under the Agreement to be distinguished
and known as "Pass Through Certificates, Series 2002-1G-2" (hereinafter
defined as the "Series 2002-1G-2 Certificates" or the "Applicable
Certificates"). Each Series 2002-1G-2 Certificate represents a Fractional
Undivided Interest in the 2002-1G-2 Trust created hereby.
The terms and conditions applicable to the Series 2002-1G-2
Certificates are as follows:
(a) The aggregate principal amount of the Series 2002-1G-2
Certificates that shall be authenticated under the Agreement (except
for Series 2002-1G-2 Certificates authenticated and delivered
pursuant to Sections 3.03, 3.04 and 3.05 of the Basic Agreement)
upon their initial issuance is $150,000,000.
(b) The Cut-off Date is the earliest of (a) ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇)
the date on which Equipment Notes with respect to all the Aircraft
have been acquired pursuant to the Note Purchase Agreement and (c)
the date on which a Triggering Event occurs.
(c) The Regular Distribution Dates with respect to any payment
of Scheduled Payments means each February 20, May 20, August 20 and
November 20, commencing on August 20, 2002, until payment of all of
the Scheduled Payments to be made under the Equipment Notes has been
made.
(d) The Special Distribution Dates with respect to the Series
G-2 Certificates shall be each Business Day on which a Special
Payment is to be distributed pursuant to this Agreement.
(e) (i) The Series 2002-1G-2 Certificates shall be in the form
attached hereto as Exhibit A. Each purchaser of Series 2002-1G-2
Certificates, by its acceptance of such Certificate or its interest
therein, will be deemed to represent and warrant to and for the
benefit of each Owner Participant and the Company that either (x)
the assets of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), of a plan subject to Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), of entities which may
be deemed to
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hold such plans' assets, or of another employee benefit plan not
subject to ERISA or Section 4975 of the Code (such as a
governmental, church or non-U.S. plan) have not been used to
purchase Series 2002-1G-2 Certificates or (y) one or more prohibited
transaction statutory or administrative exemptions applies such that
the use of such plan assets to purchase and hold such Certificate
will not constitute a non-exempt prohibited transaction under ERISA
or Section 4975 of the Code or a violation under any federal, state
or local law that is substantially similar to the provisions of
Title I of ERISA or Section 4975 of the Code.
(ii) The Series 2002-1G-2 Certificates shall be Book-Entry
Certificates, which shall be subject to the conditions set forth in
the Letter of Representations among the Guarantor, the Company and
the Depository Trust Company (the "DTC") attached hereto as Exhibit
B.
(f) The Scheduled Payments of principal shall be as set forth
in Exhibit C hereto.
(g) The proceeds of the Series 2002-1G-2 Certificates shall be
deposited in the Deposit Accounts and will be used in accordance
with the Escrow Agreement and the Deposit Agreement.
(h) Upon delivery of each Aircraft with respect to which Series
G-2 Equipment Notes are to be issued, the Owner Trustee (in the case
of a Selected Aircraft that is a Leased Aircraft), acting on behalf
of its respective Owner Participant, will issue on a non-recourse
basis, or the Company (in the case of an Owned Aircraft) will issue
on a recourse basis, the Series G-2 Equipment Notes, the proceeds of
which shall be used, among other things, to finance or refinance a
portion of the purchase price of such Aircraft.
(i) At the Escrow Agent's request under the Escrow Agreement,
the Trustee shall affix the corresponding Escrow Receipt to each
Series 2002-1G-2 Certificate. In any event, any transfer or exchange
of any Series 2002-1G-2 Certificate shall also effect a transfer or
exchange of the related Escrow Receipt. Prior to the Final
Withdrawal Date, no transfer or exchange of any Series 2002-1G-2
Certificate shall be permitted unless the corresponding Escrow
Receipt is attached thereto and also is so transferred or exchanged.
By acceptance of any Series 2002-1G-2 Certificate to which an Escrow
Receipt is attached, each Certificateholder of such a Series
2002-1G-2 Certificate acknowledges and accepts the restrictions on
transfer of the Escrow Receipt set forth herein and in the Escrow
Agreement.
Section 1.02. Intercreditor Agreement, Deposit Agreement and
Escrow Agreement. The Series 2002-1G-2 Certificates are subject to the
Intercreditor Agreement, the Deposit Agreement and the Escrow Agreement.
Section 1.03. Ranking of Series 2002-1G-2 Certificates. The
Series 2002-1G-2 Certificates will be subject to the ranking and priority as
set forth in the Intercreditor Agreement.
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Section 1.04. Liquidity Facility. Payments of interest on the
Series 2002-1G-2 Certificates will be supported by the Primary Liquidity
Facility to be provided by the Primary Liquidity Provider for the benefit of
the Applicable Certificateholders.
Section 1.05. Policy. Payments of interest on the Series
2002-1G-2 Certificates when due and payment of the outstanding balance on the
Series 2002-1G-2 Certificates on the Final Legal Distribution Date (as defined
in the Intercreditor Agreement) for such Certificates and under certain other
circumstances will be supported by a financial guaranty insurance policy to be
issued by the Policy Provider pursuant to the Policy Provider Agreement (such
policy, together with any policy issued in replacement thereof pursuant to the
Intercreditor Agreement, in each case as amended, supplemented or otherwise
modified from time to time in accordance with their respective terms, being
the "Policy").
Section 1.06. No Cross-Default or Cross- Collateralization of
Equipment Notes. As set forth in the related Indenture, there will not be any
cross-collateralization provisions or cross-default provisions in respect of
the Equipment Notes.
ARTICLE II
PREDELIVERY FUNDING AND
STATEMENT OF INTENT
Section 2.01. Predelivery Funding. On the date hereof, the
proceeds from the issuance of the Applicable Certificates will be deposited in
the Deposit Accounts on behalf of the Escrow Agent. Pursuant to the terms of
the Deposit Agreement and the Note Purchase Agreement, a portion of the
proceeds from the issuance of the Applicable Certificates will be withdrawn
from one or more Deposit Accounts on any date on which an Owner Trustee (in
the case of a Leased Aircraft) or the Company (in the case of an Owned
Aircraft) issues Equipment Notes with respect to an Aircraft.
Section 2.02. Statement of Intent. The parties hereto intend
that the Applicable Trust be classified for U.S. federal income tax purposes
as a grantor trust under Subpart E, Part I of Subchapter J of the Code and not
as a trust or association taxable as a corporation or a partnership. Each of
the parties hereto and each Applicable Certificateholder, or beneficial owner
of an Applicable Certificate, by its acceptance of its Applicable Certificate
or a beneficial interest therein, agrees to treat for all U.S. federal, state
and local income tax purposes (i) the Applicable Trust as a grantor trust and
(ii) Equipment Notes to be issued (or assumed) by an Owner Trust (in the case
of a Leased Aircraft) as indebtedness of such Owner Trust, and Equipment Notes
issued by the Company (in the case of an Owned Aircraft) as indebtedness of
the Company.
Section 2.03. Activities of Trust. (a) Other than in connection
with the transactions contemplated by this Agreement or the Note Documents,
the Trustee, on behalf of the Applicable Trust, shall not (i) borrow money or
issue debt or (ii) merge with another entity, reorganize, liquidate or sell
its assets.
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(b) The activities of the Trustee on behalf of the Applicable
Trust shall be limited to those activities authorized by this Agreement or the
Note Documents.
ARTICLE III
DEFINITIONS
Section 3.01. Definitions. (a) For all purposes of the Basic
Agreement as supplemented by this Trust Supplement, the following capitalized
terms have the following meanings:
Aircraft: Has the meaning specified in the Note Purchase
Agreement.
Applicable Certificateholder: Means the holder of an Applicable
Certificate.
Applicable Certificates: As defined in Section 1.01.
Break Amount: Has the meaning specified in each relevant
Indenture.
Business Day: Means any day, other than a Saturday, Sunday or
other day on which commercial banks are authorized or required to
close in New York, New York, Minneapolis, Minnesota, Boston,
Massachusetts, or Salt Lake City, Utah.
Class D Certificateholder: Means the holder of a Class D
Certificate.
Class D Certificates: Has the meaning specified in the
Intercreditor Agreement.
Class D Notice: Has the meaning specified in the Note Purchase
Agreement.
Closing Notice: Has the meaning specified in the Note Purchase
Agreement.
Cut-off Date: Has the meaning specified in Section 1.01(b).
Deposit Account: Means an account established under Section 1.2
of the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated as of
August 5, 2002 relating to the Applicable Certificates between the
Depositary and the Escrow Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with its terms.
Deposit Make-Whole Amount: Has the meaning specified in the
Note Purchase Agreement.
Depositary: Means Credit Suisse First Boston, New York Branch,
and any replacement or successor therefor.
Deposits: Has the meaning specified in the Note Purchase
Agreement.
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Distribution Date: Means any Regular Distribution Date or
Special Distribution Date.
DTC: Has the meaning specified in Section 1.01(e) hereof.
DTC Participant: Means any of the participants in the DTC.
Eligible Aircraft: Has the meaning specified in the Note
Purchase Agreement.
Escrow Agent: Means ▇▇▇▇▇ Fargo Bank Northwest, National
Association, and any replacement or successor therefor appointed in
accordance with the Escrow Agreement.
Escrow Agreement: Means the Escrow and Paying Agent Agreement
dated as of August 5, 2002 relating to the Applicable Certificates,
among the Escrow Agent, the Paying Agent, the Trustee and the
Underwriters, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Escrow Receipt: Means the receipt substantially in the form
annexed to the Escrow Agreement representing a fractional undivided
interest in the funds held in the Paying Agent Account (as defined
in the Escrow Agreement).
Final Withdrawal: With respect to the Escrow Agreement, has the
meaning set forth in Section 1.2 thereof.
Final Withdrawal Date: Means the date on which the Final
Withdrawal occurs.
Intercreditor Agreement: Means the Intercreditor Agreement,
dated as of the date hereof, by and among the Trustee, the Other
Trustee, the Liquidity Providers named therein, the Policy Provider
and State Street Bank and Trust Company, as Subordination Agent.
Leased Aircraft: Has the meaning specified in the recitals
hereto.
Luxembourg Paying Agent: Has the meaning specified in Section
4.08 of this Trust Supplement.
Note Documents: With respect to any Equipment Note, means the
Note Purchase Agreement, the related Indenture, the related
Participation Agreement, and, if the related Aircraft is leased to
the Company, the related Lease.
Note Purchase Agreement: Means the Note Purchase Agreement,
dated as of the date hereof, among the Company, the Trustee, the
Other Trustee, State Street Bank and Trust Company, as Subordination
Agent, the Escrow Agent and the Paying Agent.
Notice of Purchase Withdrawal: Has the meaning specified in the
Deposit Agreement.
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Notice of Series D Non-Issuance Withdrawal: Has the meaning
specified in the Deposit Agreement.
Other Agreement: Means the Basic Agreement as supplemented by
Trust Supplement No. 2002-1G-1 (the "2002-1G-1 Trust Supplement")
dated the date hereof relating to Northwest Airlines 2002-1G-1 Pass
Through Trust, by Trust Supplement No. 2002-1C-1 (the "2002-1 C-1
Trust Supplement") dated the date hereof relating to the Northwest
Airlines 2002-1C-1 Pass Through Trust, by Trust Supplement No.
2002-1C-2 (the "2002-1C-2 Trust Supplement") dated the date hereof
relating to the Northwest Airlines 2002-1C-2 Pass Through Trust and,
upon execution thereof, by Trust Supplement No. 2002-1D (the
"2002-1D Trust Supplement") relating to the Northwest Airlines
2002-1D Pass Through Trust.
Other Trustee: Means the trustee under the Other Agreement, and
any successor or other trustee appointed as provided therein.
Owned Aircraft: Has the meaning specified in the recitals
hereto.
Participation Agreement: Has the meaning specified in the Note
Purchase Agreement.
Paying Agent: Means State Street Bank and Trust Company.
Policy: Has the meaning specified in Section 1.05.
Policy Provider: Means MBIA Insurance Corporation, and any
replacement or successor thereof appointed in accordance with the
Policy Provider Agreement.
Policy Provider Agreement: Has the meaning specified in the
Intercreditor Agreement.
Policy Provider Default: Has the meaning specified in the
Intercreditor Agreement.
Pool Balance: Means, as of any date, (i) the original aggregate
face amount of the Applicable Certificates less (ii) the aggregate
amount of all payments made in respect of such Applicable
Certificates or in respect of Deposits relating to the Applicable
Trust other than payments made in respect of interest or premium
thereon or reimbursement of any costs or expenses incurred in
connection therewith. The Pool Balance as of any Distribution Date
will be computed after giving effect to any special distribution
with respect to unused Deposits, payment of principal of the
Equipment Notes or payment with respect to other Trust Property and
the distribution thereof to be made on that date and payments under
the Policy made for the benefit of the Applicable Certificateholders
(other than in respect of the Primary Liquidity Facility or interest
on the Applicable Certificates).
Pool Factor: Means, as of any Distribution Date, the quotient
(rounded to the seventh decimal place) computed by dividing (i) the
Pool Balance by (ii) the original
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aggregate face amount of the Applicable Certificates. The Pool
Factor as of any Distribution Date shall be computed after giving
effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or other Trust Property
and the distribution thereof to be made on that date.
Prepayment Premium: Has the meaning specified in each relevant
Indenture.
Primary Liquidity Facility: Means the Revolving Credit
Agreement dated as of August 5, 2002 relating to the Applicable
Certificates, between the Primary Liquidity Provider and State
Street Bank and Trust, as Subordination Agent, as agent and trustee
for the Applicable Trust, and, from and after the replacement of
such agreement pursuant to the Intercreditor Agreement, the
replacement liquidity facility therefore, in each case as amended,
supplemented or otherwise modified from time to time in accordance
with their respective terms.
Primary Liquidity Provider: Means Citibank, N.A., and any
replacements or successors therefore appointed in accordance with
the Intercreditor Agreement.
Prospectus Supplement: Means the Prospectus Supplement dated
July 29, 2002, relating to the offering of the Class G-1
Certificates, the Class G-2 Certificates, the Class C-1 Certificates
and the Class C-2 Certificates (each as defined in the Intercreditor
Agreement).
Receiptholder: Has the meaning specified in the Escrow
Agreement.
Record Date: Means the fifteenth day preceding any Distribution
Date on which the Applicable Certificateholders are determined for
purposes of the distribution which will occur on such Distribution
Date.
Scheduled Closing Date: Has the meaning specified in the Note
Purchase Agreement.
Scheduled Payment: Has the meaning specified in the
Intercreditor Agreement.
Selected Aircraft: Has the meaning specified in the Note
Purchase Agreement.
Series D Non-Issuance Withdrawal: Has the meaning specified in
the Deposit Agreement.
Special Payment: Means any payment (other than a Scheduled
Payment) in respect of, or any proceeds of, any Equipment Note or
Trust Indenture Estate (as defined in each Indenture) or Special
Redemption Premium.
Special Redemption Premium: Means the Deposit Make-Whole Amount
payable by the Company in respect of the Final Withdrawal or Series
D Non-Issuance Withdrawal pursuant to the Note Purchase Agreement.
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Trust Property: Means (i) the Equipment Notes held as the
property of the Applicable Trust and, subject to the Intercreditor
Agreement, all monies at any time paid thereon and all monies due
and to become due thereunder, (ii) the rights of the Applicable
Trust under the Escrow Agreement to request the Escrow Agent to
withdraw from the Deposit Accounts funds sufficient to enable the
Applicable Trust to purchase Equipment Notes on the delivery of an
Aircraft, (iii) funds from time to time deposited in the Certificate
Account and the Special Payments Account, and (iv) all rights of the
Applicable Trust and the Trustee, on behalf of the Applicable Trust,
under the Intercreditor Agreement, the Note Purchase Agreement and
the Primary Liquidity Facility, including, without limitation, the
rights of the Applicable Trust to acquire Equipment Notes under the
Note Purchase Agreement, all rights to receive certain payments
under such documents, and all monies paid to the Trustee on behalf
of the Applicable Trust pursuant to the Intercreditor Agreement, the
Primary Liquidity Facility or the Policy.
Trusts: Means, collectively, the Northwest Airlines 2002-1 Pass
Through Trusts to be formed pursuant to the Basic Agreement, as
supplemented by this Trust Supplement and the Other Agreement.
Underwriters: Means the several Underwriters named in and who
are parties to the Underwriting Agreement.
Underwriting Agreement: Means the Underwriting Agreement dated
July 29, 2002, by and among the Company, the Guarantor and the
Underwriters.
Section 3.02. Other. (a) For purposes of the Applicable Trust,
"PTC Event of Default," as used in the Basic Agreement, shall have the meaning
set forth in the Intercreditor Agreement.
(b) With respect to the Applicable Trust, the definition of the
term "Specified Investments" in the Basic Agreement is amended by adding the
following sentence at the end of such definition:
"State Street Bank and Trust Company of Connecticut, National
Association, in acting as Pass Through Trustee is hereby authorized, in making
or disposing of any investment described herein, to deal with itself (in its
individual capacity) or with any one or more of its affiliates, whether it or
such affiliate is acting as an agent of the Pass Through Trustee or for any
third person or dealing as principal for its own account."
ARTICLE IV
THE TRUSTEE
Section 4.01. Delivery of Documents; Delivery Dates. (a) The
Trustee is hereby directed (i) to execute and deliver the Intercreditor
Agreement, the Escrow Agreement, the Policy Provider Agreement and the Note
Purchase Agreement, each in the form delivered to the Trustee by the Company
and (ii) subject to the respective terms thereof, to perform its obligations
thereunder. Upon request of the Company and the satisfaction or waiver of the
closing conditions specified in the Underwriting Agreement, the Trustee shall
execute, deliver,
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authenticate, issue and sell Applicable Certificates in authorized
denominations equaling in the aggregate the amount set forth, with respect to
the Applicable Trust, in Schedule I to the Underwriting Agreement evidencing
the entire ownership interest in the Applicable Trust, which amount equals the
maximum aggregate principal amount of Equipment Notes which may be purchased
by the Trustee pursuant to the Note Purchase Agreement. Except as provided in
Sections 3.03, 3.04, 3.05 and 3.09 of the Basic Agreement, the Trustee shall
not execute, authenticate or deliver Applicable Certificates in excess of the
aggregate amount specified in this paragraph.
(b) On or after the Issuance Date the Company may deliver from
time to time to the Trustee a Closing Notice relating to one or more Equipment
Notes. After receipt of a Closing Notice and in any case no later than two
Business Days prior to a Scheduled Closing Date as to which such Closing
Notice relates (the "Applicable Delivery Date"), the Trustee shall (as and
when specified in the Closing Notice) instruct the Escrow Agent to provide a
Notice of Purchase Withdrawal to the Depositary requesting (i) the withdrawal
of all principal amounts from one or more Deposit Accounts on the Applicable
Delivery Date in accordance with and to the extent permitted by the terms of
the Escrow Agreement and the Deposit Agreement and (ii) the payment of all, or
a portion, of the amount withdrawn from such Deposit Account or Accounts in an
amount equal in the aggregate to the purchase price of such Equipment Notes to
or on behalf of the Owner Trustee or the Company, as the case may be, issuing
such Equipment Notes, all as shall be described in the Closing Notice. The
Trustee shall (as and when specified in such Closing Notice), subject to the
conditions set forth in Section 3 of the Note Purchase Agreement, enter into
and perform its obligations under the Participation Agreement specified in
such Closing Notice (the "Applicable Participation Agreement") and cause such
certificates, documents and legal opinions relating to the Trustee to be duly
delivered as required by the Applicable Participation Agreement. If at any
time prior to the Applicable Delivery Date, the Trustee receives a notice of
postponement pursuant to Section 2(e) or 2(f) of the Note Purchase Agreement,
then the Trustee shall give the Depositary (with a copy to the Escrow Agent) a
notice of cancellation of such Notice of Purchase Withdrawal relating to such
Deposit Account or Accounts on such Applicable Delivery Date. Upon
satisfaction of the conditions specified in the Note Purchase Agreement and
the Applicable Participation Agreement, the Trustee shall purchase the
applicable Equipment Notes with the proceeds of the withdrawals from one or
more Deposit Accounts made on the Applicable Delivery Date in accordance with
the terms of the Deposit Agreement and the Escrow Agreement. The purchase
price of such Equipment Notes shall equal the principal amount of such
Equipment Notes. Amounts withdrawn from such Deposit Account or Accounts in
excess of the purchase price of the Equipment Notes (and not otherwise subject
to a Series D Non-Issuance Withdrawal) or to the extent not applied on the
Applicable Delivery Date to the purchase price of the Equipment Notes, shall
be re-deposited by the Trustee with the Depositary on the Applicable Delivery
Date in accordance with the terms of the Deposit Agreement.
(c) If, in respect of an Aircraft, the Company shall deliver to
the Trustee a Class D Notice pursuant to Section 2(b) of the Note Purchase
Agreement specifying that a Series D Non-Issuance Withdrawal will be required
under the Escrow Agreement, the Trustee shall (as and when specified in such
Class D Notice) instruct the Escrow Agent to provide a Notice of Series D
Non-Issuance Withdrawal to the Depositary requesting (i) the withdrawal of
principal amounts from one or more Deposit Accounts in the amounts and on the
date specified in such
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Class D Notice (together with accrued interest to such specified date on the
amounts so withdrawn) in accordance with and to the extent permitted by the
terms of the Escrow Agreement and the Deposit Agreement and (ii) the payment
to the Paying Agent (for payment to the Receiptholders in accordance with the
Escrow Agreement) of the amounts so withdrawn from such Deposit Account or
Accounts. If at any time prior to the Applicable Delivery Date the Trustee
receives a notice of postponement pursuant to Section 2(e) or 2(f) of the Note
Purchase Agreement, then the Trustee shall give the Depositary (with a copy to
the Escrow Agent) a notice of cancellation of such Notice of Series D
Non-Issuance Withdrawal relating to such Deposit Account or Accounts. Amounts
withdrawn from such Deposit Account or Accounts, to the extent not distributed
to the Receiptholders on the date specified in the Class D Notice, shall be
redeposited by the Trustee with the Depositary in accordance with the terms of
the Deposit Agreement. Upon receipt of a Class D Notice specifying the
requirement for a Series D Non-Issuance Withdrawal, the Trustee shall also
make a demand upon the Company for an amount equal to the Special Redemption
Premium, such payment to be made on the date specified in such Class D Notice
as the date for payment by the Depositary of funds pursuant to the Series D
Non-Issuance Withdrawal.
Section 4.02. Withdrawal of Deposits. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-off Date, (i) the
Trustee shall give the Escrow Agent notice that the Trustee's obligation to
purchase Equipment Notes under the Note Purchase Agreement has terminated and
instruct the Escrow Agent to provide a notice of Final Withdrawal to the
Depositary substantially in the form of Exhibit B to the Deposit Agreement
(the "Final Withdrawal Notice") and (ii) the Trustee will make a demand upon
the Company for an amount equal to the Special Redemption Premium, such
payment to be made on the Final Withdrawal Date.
Section 4.03. The Trustee. (a) Subject to Section 4.04 of this
Trust Supplement and Section 7.14 of the Basic Agreement, the Trustee shall
not be responsible in any manner whatsoever for or in respect of the validity
or sufficiency of this Trust Supplement, the Deposit Agreement or the Escrow
Agreement or the due execution hereof or thereof by the Company or the other
parties thereto (other than the Trustee), or for or in respect of the recitals
and statements contained herein or therein, all of which recitals and
statements are made solely by the Company.
(b) Except as herein otherwise provided, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed by the Trustee by reason of this Trust Supplement other than as set
forth in the Basic Agreement, and this Trust Supplement is executed and
accepted on behalf of the Trustee, subject to all the terms and conditions set
forth in the Basic Agreement, upon the effectiveness thereof, as fully to all
intents as if the same were herein set forth at length.
Section 4.04. Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants that:
(a) the Trustee has full power, authority and legal right to
execute, deliver and perform this Trust Supplement, the
Intercreditor Agreement, the Escrow Agreement, the Policy Provider
Agreement and the Note Documents to which it is a party
(collectively,
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the "Trustee Agreements") and has taken all necessary action to
authorize the execution, delivery and performance by it of the
Trustee Agreements;
(b) the execution, delivery and performance by the Trustee of
the Trustee Agreements (i) will not violate any provision of any
United States federal law or the law of the state of the United
States where it is located governing the banking and trust powers of
the Trustee or any order, writ, judgment, or decree of any court,
arbitrator or governmental authority applicable to the Trustee or
any of its assets, (ii) will not violate any provision of the
articles of association or by-laws of the Trustee, and (iii) will
not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust
Property pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to
have an adverse effect on the Trustee's performance or ability to
perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(c) the execution, delivery and performance by the Trustee of
the Trustee Agreements will not require the authorization, consent,
or approval of, the giving of notice to, the filing or registration
with, or the taking of any other action in respect of, any
governmental authority or agency of the United States or the state
of the United States where it is located regulating the banking and
corporate trust activities of the Trustee; and
(d) each Trustee Agreement has been, or will be, as applicable,
duly executed and delivered by the Trustee and constitute, or will
constitute, as applicable, the legal, valid and binding agreement of
the Trustee, enforceable against it in accordance with its terms;
provided, however, that enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and (ii)
general principles of equity.
Section 4.05. Trustee Liens. The Trustee in its individual
capacity agrees, in addition to the agreements contained in Section 7.16 of
the Basic Agreement, that it will, at its own cost and expense, promptly take
any action as may be necessary to duly discharge and satisfy in full any
Trustee's liens on or with respect to the Trust Property which is attributable
to the Trustee in its individual capacity and which is unrelated to the
transactions contemplated by the Intercreditor Agreement or the Note Purchase
Agreement.
Section 4.06. Amendment of Section 7.01 of the Basic Agreement.
The Trustee agrees, in addition to the agreements contained in Section 7.01 of
the Basic Agreement, that it will promptly transmit any such notices to the
Luxembourg Paying Agent.
Section 4.07. Amendment of Section 8.03 of the Basic Agreement.
(a) So long as any of the Applicable Certificates are listed on the Luxembourg
Stock Exchange and the rules of the Luxembourg Stock Exchange shall so
require, the Trustee shall promptly furnish to the Luxembourg Listing Agent
following receipt thereof from the Company (i) copies of the Operative
Agreements (as defined in the Intercreditor Agreement), the Deposit Agreement
and
12
the Escrow Agreement and (ii) copies of the information received by the
Trustee from the Company pursuant to Section 8.04 of the Basic Agreement.
(b) The provisions of this Section 4.07 supersede and replace
the provisions of Section 8.03 of the Basic Agreement in its entirety with
respect to the Applicable Trust.
Section 4.08. Luxembourg Paying Agent. So long as any of the
Applicable Certificates are listed on the Luxembourg Stock Exchange and the
rules of the Luxembourg Stock Exchange shall so require, the Trustee shall
maintain a paying agent in Luxembourg (the "Luxembourg Paying Agent"), which
shall be considered a Paying Agent for purposes of the Agreement. The
Luxembourg Paying Agent, by accepting its appointment, shall be deemed to
agree to perform the duties of the paying agent set forth in the Prospectus
Supplement and the other requirements of the Luxembourg Stock Exchange. The
Trustee hereby initially appoints Credit Lyonnais Luxembourg S.A., as
Luxembourg Paying Agent and as the Trustee's agent where notices and demands
to or upon the Trustee in respect of any Applicable Certificates listed on the
Luxembourg Stock Exchange may be served, where payments of principal,
interest, Prepayment Premium (if any) and other premium (if any) on the
Definitive Certificates may be made upon written request of the registered
holder of a Definitive Certificate to the Trustee or to the Luxembourg Paying
Agent (a copy of which shall be furnished to the Trustee), and where such
Applicable Certificates may be surrendered for exchange on the terms and
conditions set forth in this Agreement. The Trustee shall, upon written
request of the Company, at any time and from time to time, vary or terminate
the appointment of such Luxembourg Paying Agent or appoint any additional or
replacement Luxembourg Paying Agent for any or all of such purposes, subject
to the requirements of the first sentence of this Section 4.08. The Trustee
shall direct the Luxembourg Paying Agent to promptly forward copies of all
inquiries and requests relating to the Applicable Certificates to the Trustee
and the Escrow Agent.
ARTICLE V
SUPPLEMENTAL AGREEMENT
Section 5.01. Supplemental Agreements. (a) For purposes of this
Trust, Section 9.01 and 9.02 of the Basic Agreement shall be amended to read
as follows:
"Section 9.01. Supplemental Agreements Without Consent of
Applicable Certificateholders. Without the consent of the Applicable
Certificateholders, the Guarantor and the Company may, and the
Trustee (subject to Section 9.03) shall, at any time and from time
to time, enter into one or more agreements supplemental hereto or,
if applicable, to the Deposit Agreements, the Escrow Agreements, the
Intercreditor Agreement, the Note Purchase Agreement, any Liquidity
Facility, the Policy or the Policy Provider Agreement, for any of
the following purposes:
(1) to provide for the formation of a Trust, the issuance
of a series of certificates and the other matters contemplated
by Section 2.01(b); or
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(2) to evidence the succession of another corporation to
the Company or the Guarantor and the assumption by any such
successor of the covenants of the Company or the Guarantor
herein contained or contained in the Note Purchase Agreement or
the Policy Provider Agreement; or
(3) to add to the covenants of the Guarantor or the
Company for the benefit of the Certificateholders of any
series, or to surrender any right or power conferred upon the
Guarantor or the Company in this Agreement, the Intercreditor
Agreement, the Note Purchase Agreement, the Policy, the Policy
Provider Agreement or any Liquidity Facility; or
(4) except where Certificateholder consent is required by
Sections 9.02(1) - 9.02(6) and as described below, to correct
or supplement any provision in this Agreement, the Deposit
Agreements, the Escrow Agreements, the Intercreditor Agreement,
the Note Purchase Agreement, any Liquidity Facility, the Policy
or the Policy Provider Agreement which may be defective or
inconsistent with any other provision herein or in any Trust
Supplement or to make any other provisions with respect to
matters or questions arising under this Agreement, the Deposit
Agreements, the Escrow Agreements, the Intercreditor Agreement,
the Note Purchase Agreement, any Liquidity Facility, the Policy
or the Policy Provider Agreement, provided that any such action
shall not adversely affect the interests of the
Certificateholders of any series; or to cure any ambiguity or
correct any mistake in this Agreement, the Deposit Agreements,
the Escrow Agreements, the Intercreditor Agreement, the Note
Purchase Agreement, any Liquidity Facility, the Policy or the
Policy Provider Agreement; or
(5) to comply with any requirement of the SEC, any
applicable law, rules or regulations of any exchange or
quotation system on which the Applicable Certificates are
listed, or any regulatory body; or
(6) to modify, eliminate or add to the provisions of this
Agreement, the Deposit Agreements, the Escrow Agreements, the
Intercreditor Agreement, the Policy, the Policy Provider
Agreement, the Note Purchase Agreement or any Liquidity
Facility to such extent as shall be necessary to continue the
qualification of this Agreement (including any supplemental
agreement) under the Trust Indenture Act, or under any similar
Federal statute hereafter enacted, and to add to this
Agreement, the Deposit Agreements, the Escrow Agreements, the
Intercreditor Agreement, the Policy, the Policy Provider
Agreement, the Note Purchase Agreement or any Liquidity
Facility such other provisions as may be expressly permitted by
the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as
in effect at the date as of which this instrument was executed
or any corresponding provision in any similar Federal statute
hereafter enacted; or
(7) to evidence and provide for the acceptance of
appointment under this Agreement, the Deposit Agreements, the
Escrow Agreements, the Intercreditor Agreement, the Policy, the
Policy Provider Agreement, the Note
14
Purchase Agreement or any Liquidity Facility by a successor
Trustee with respect to one or more Trusts and to add to or
change any of the provisions of this Agreement, the Deposit
Agreements, the Escrow Agreements, the Intercreditor Agreement,
the Policy, the Policy Provider Agreement, the Note Purchase
Agreement or any Liquidity Facility as shall be necessary to
provide for or facilitate the administration of the Trusts
hereunder and thereunder by more than one Trustee, pursuant to
the requirements of Section 7.09; or
(8) to make any other amendments or modifications hereto,
provided such amendments or modifications shall only apply to
Certificates of one or more series to be thereafter issued."
"Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With respect to each separate Trust and the
series of Certificates relating thereto, with the consent of the
Certificateholders holding Certificates of any such series
evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in such Trust, by Act of said
Certificateholders delivered to the Guarantor, the Company and the
Trustee, the Guarantor and the Company may (with the consent of the
Owner Trustee, if any, relating to such Certificates, which consent
shall not be unreasonably withheld), and the Trustee (subject to
Section 9.03) shall, enter into an agreement or agreements
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Agreement, the Deposit Agreements, the Escrow Agreements, the
Intercreditor Agreement, the Note Purchase Agreement, any Liquidity
Facility, the Policy or the Policy Provider Agreement to the extent
applicable to such Certificateholders or of modifying in any manner
the rights and obligations of such Certificateholders under this
Agreement, the Deposit Agreements, the Escrow Agreements, the
Intercreditor Agreement, the Note Purchase Agreement, any Liquidity
Facility, the Policy or the Policy Provider Agreement; provided,
however, that no such supplemental agreement shall, without the
consent of the Certificateholder of each Outstanding Certificate
affected thereby:
(1) reduce in any manner the amount of, or delay the
timing of, any receipt by the Trustee of payments on the
Equipment Notes or other Trust Property held in such Trust or
distributions that are required to be made herein on any
Certificate of such series, or change any date of payment of
any Certificate of such series, or change the place of payment
where, or the coin or currency in which, any Certificate of
such series is payable, or impair the right to institute suit
for the enforcement of any such payment or distribution on or
after the Regular Distribution Date or Special Distribution
Date applicable thereto; or
(2) permit the disposition of any Equipment Note in the
Trust Property of such Trust except as permitted by this
Agreement, or otherwise deprive such Certificateholder of the
benefit of the ownership of the Equipment Notes in such Trust;
or
(3) alter the priority of distributions specified in the
Intercreditor Agreement; or
15
(4) reduce the percentage of the aggregate Fractional
Undivided Interests of such Trust, the consent of the holder of
which is required for any such supplemental agreement, or
reduce such percentage required for any waiver (of compliance
with certain provisions of this Agreement or certain defaults
hereunder and their consequences) provided for in this
Agreement; or
(5) modify any of the provisions of this Section or
Section 6.05, except to increase any such percentage or to
provide that certain other provisions of this Agreement cannot
be modified or waived without the consent of the
Certificateholder of each Certificate or such series affected
thereby; or
(6) terminate the Policy or modify the Policy other than
amendments already contemplated or required by Section 3.06 of
the Policy Provider Agreement and/or Section 2.6(c) or 3.7(c)
of the Intercreditor Agreement
It shall not be necessary for any Act of such
Certificateholders under this Section to approve the particular form
of any proposed supplemental agreement, but it shall be sufficient
if such Act shall approve the substance thereof."
(b) If Class E Certificates are issued, the Company, the
Guarantor and the Trustee, without the consent of the Applicable
Certificateholders, may enter into an agreement supplemental to this Trust
Supplement whereby Class E Certificateholders shall be granted purchase rights
similar to those set forth in Section 7.01 hereof.
(c) Any supplemental agreement may not adversely affect the
status of the Applicable Trust for U.S. federal income tax purposes, as either
(i) a grantor trust under Subpart E, Part I of Subchapter J of Chapter 1 of
Subtitle A of the Code or (ii) a partnership.
ARTICLE VI
DISTRIBUTIONS; STATEMENT TO CERTIFICATEHOLDERS
Section 6.01. Additions to Article IV of the Basic Agreement.
In addition to the provisions of Article IV of the Basic Agreement, the
following provisions shall apply to the Applicable Trust:
(a) Upon the payment of Special Redemption Premium to the
Trustee under the Note Purchase Agreement, the Trustee, upon receipt
thereof, shall immediately deposit the aggregate amount of such
Special Redemption Premium in the Special Payments Account.
(b) The distribution of amounts of Special Redemption Premium
as provided for in Section 4.02(b) of the Basic Agreement shall be
on the Special Distribution Date with respect to such Special
Payment or as soon thereafter as the Trustee has confirmed receipt
of the related Special Redemption Premium.
(c) In the event of the payment of a Special Redemption Premium
by the Company to the Trustee under the Note Purchase Agreement, the
notice provided for in Section 4.02(c) of the Basic Agreement shall
be mailed, together with the notice by the
16
Paying Agent under Section 2.6 of the Escrow Agreement, not less
that 15 days prior to the Special Distribution Date for such amount,
which Special Distribution Date shall be the Final Withdrawal Date
or date of payment of the Series D Non-Issuance Withdrawal, as the
case may be.
(d) The last sentence of the first paragraph of Section 4.02(c)
of the Basic Agreement shall apply equally if the amount of Special
Redemption Premium, if any, has not been calculated at the time the
Trustee mails notice of a Special Payment.
Section 6.02. Statements to Applicable Certificateholders;
Federal Income Tax Reporting. (a) On each Distribution Date, the Trustee will
include with each distribution to Applicable Certificateholders of a Scheduled
Payment or Special Payment, as the case may be, a statement setting forth the
information provided below (in the case of a Special Payment, including any
Special Redemption Premium, reflecting in part the information provided by the
Paying Agent under the Escrow Agreement). Such statement shall set forth (per
$1,000 face amount Applicable Certificate as to (i), (ii), (iii), (iv) and (v)
below) the following information:
(i) the aggregate amount of funds distributed on such
Distribution Date under the Agreement and under the Escrow
Agreement, indicating the amount allocable to each source (including
any portion thereof paid by the Liquidity Provider and/or the Policy
Provider);
(ii) the amount of such distribution under the Agreement
allocable to principal and the amount allocable to premium
(including the Special Redemption Premium), if any;
(iii) the amount of such distribution under the Agreement
allocable to interest;
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to unused Deposits, if any, and the amount of such
distribution under the Escrow Agreement allocable to Deposit
Make-Whole Amount, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the
name of DTC, on the Record Date prior to each Distribution Date, the Trustee
will request from DTC a securities position listing setting forth the names of
all direct participants reflected on its books as holding interests in the
Applicable Certificates on such Record Date. On each Distribution Date, the
Trustee will mail to each such direct participant, whose name has been
provided by DTC, the statement described above and will make available
additional copies as requested by such direct participant for forwarding to
holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was an
Applicable Certificateholder of record a statement
17
containing the sum of the amounts determined pursuant to clauses (a)(i),
(a)(ii), (a)(iii), (a)(iv) and (a)(v) of this Section 6.02 for such calendar
year or, in the event such Person was an Applicable Certificateholder of
record during a portion of such calendar year, for such portion of such year,
and such other items as are readily available to the Trustee and which an
Applicable Certificateholder shall reasonably request as necessary for the
purpose of such Applicable Certificateholder's preparation of its federal
income tax returns. Such statement and such other items shall be prepared on
the basis of information supplied to the Trustee by the direct participants of
DTC, and shall be delivered by the Trustee to such direct participants to be
available for forwarding by such direct participants to the holders of
interests in the Applicable Certificates in the manner described in Section
6.02(a) hereof.
(c) Promptly following the date of (i) any change in the
information set forth in clauses (x) and (y) below from that set forth in page
S-50 and S-51 of the Prospectus Supplement, and (ii) any early redemption or
purchase of, or any default in the payment of principal or interest in respect
of, any of the Equipment Notes held in the Applicable Trust, or any Final
Withdrawal, the Trustee shall furnish to Applicable Certificateholders of
record on such date a statement setting forth (x) the expected Pool Factors
for each subsequent Regular Distribution Date and (y) the expected principal
distribution schedule of the Equipment Notes, in the aggregate, held as Trust
Property at the date of such notice. With respect to the Applicable
Certificates registered in the name of DTC, on the Cut-off Date, the Trustee
will request from DTC a securities position listing setting forth the names of
all direct participants reflected on its books as holding interests in the
Applicable Certificates on such date. The Trustee will mail to each direct
participant the statement described above and will make available additional
copies as requested by such direct participant for forwarding to holders of
interests in the Applicable Certificates. Notwithstanding the foregoing, so
long as any of the Applicable Certificates are listed on the Luxembourg Stock
Exchange, all information and documents required to be delivered pursuant to
this Section 6.02 (other than Section 6.02(b)) shall also be provided to the
Luxembourg Paying Agent and made available at the Luxembourg Paying Agent's
offices in Luxembourg, free of charge.
(d) Unless and until required otherwise by applicable
authority, the Trustee shall treat the Applicable Trust as a "grantor trust"
under Subpart E, Part I, Subchapter J of Chapter 1 of the Code, and shall file
annually with the Internal Revenue Service Form 1041, indicating the name and
address of the Applicable Trust and otherwise completed in blank, with
attached statements identifying each Applicable Certificateholder and its pro
rata share of the income and expenses of the Applicable Trust for the
applicable portion of the preceding calendar year, on the cash or accrual
method, as the case may be, and shall furnish each Applicable
Certificateholder with a copy of its statement at the time and in the manner
required by the Code.
(e) This Section 6.02 supersedes and replaces Section 4.03 of
the Basic Agreement.
18
ARTICLE VII
DEFAULT
Section 7.01. Purchase Rights of Certificateholders. By
acceptance of its Applicable Certificate, each Applicable Certificateholder
agrees that, after the occurrence and during the continuation of a Triggering
Event,
(a) subject to Section 7.01(f) below, if the Class G-1 Trustee
is then the Controlling Party, each Applicable Certificateholder
shall have the right to purchase, for the purchase price set forth
in the Class G-1 Trust Agreement, all, but not less than all, of the
Class G-1 Certificates upon ten days' prior written notice to the
Class G-1 Trustee and each other Applicable Certificateholder,
provided that (i) if prior to the end of such ten-day period any
other Applicable Certificateholder notifies such purchasing
Applicable Certificateholder that such other Applicable
Certificateholder wants to participate in such purchase, then such
other Applicable Certificateholder may join with the purchasing
Applicable Certificateholder to purchase all, but not less than all,
of the Class G-1 Certificates pro rata based on the fractional
undivided interest in the Applicable Trust held by each such
Applicable Certificateholder and (ii) if prior to the end of such
ten-day period any other Applicable Certificateholder fails to
notify the purchasing Applicable Certificateholder of such other
Applicable Certificateholder's desire to participate in such
purchase, then such other Applicable Certificateholder shall lose
its right to purchase the Class G-1 Certificates pursuant to this
Section 7.01(a); and
(b) subject to Section 7.01(f) below, if the Trustee is then
the Controlling Party, each Class G-1 Certificateholder shall have
the right to purchase all, but not less than all, of the Applicable
Certificates upon ten days' prior written notice to the Trustee and
each other Class G-1 Certificateholder, provided that (i) if prior
to the end of such ten-day period any other Class G-1
Certificateholder notifies such purchasing Class G-1
Certificateholder that such other Class G-1 Certificateholder wants
to participate in such purchase, then such other Class G-1
Certificateholder may join with the purchasing Class G-1
Certificateholder to purchase all, but not less than all, of the
Applicable Certificates pro rata based on the fractional undivided
interest in the Class G-1 Trust held by each such Class G-1
Certificateholder and (ii) if prior to the end of such ten-day
period any other Class G-1 Certificateholder fails to notify the
purchasing Class G-1 Certificateholder of such other Class G-1
Certificateholder's desire to participate in such a purchase, then
such other Class G-1 Certificateholder shall lose its right to
purchase the Applicable Certificates pursuant to this Section
7.01(b); and
(c) subject to Section 7.01(f) below, the Class C-1 or Class
C-2 Certificateholders shall have the right (which shall not expire
upon any purchase of the Applicable Certificates or the Class G-1
Certificates pursuant to paragraph (a) or (b) above) to purchase
all, but not less than all, of the Applicable Certificates and the
Class G-1 Certificates upon ten days' prior written notice to the
Trustee, the Class G-1 Trustee, the Class C-1 Certificateholders and
the Class C-2 Certificateholders; provided that if both Class C-1
and Class C-2 Certificateholders wish to purchase the Applicable
Certificates and the Class G-1 Certificates, then whichever of Class
C-1 or Class C-2 shall have the larger Pool Balance of Certificates
outstanding at such time (such Class,
19
the "Larger C Class", the related Certificates, the "Larger C Class
Certificates" and the related Trust, the "Larger C Class Trust";
such other Class, the "Smaller C Class", the related Certificates,
the "Smaller C Class Certificates" and the related Trust, the
"Smaller C Class Trust") shall have such right; provided, further,
that (i) if prior to the end of such ten-day period any other Larger
C Class Certificateholder notifies such purchasing Larger C Class
Certificateholder that such other Larger C Class Certificateholder
wants to participate in such purchase, then such other Larger C
Class Certificateholder may join with the purchasing Larger C Class
Certificateholder to purchase all, but not less than all, of the
Applicable Certificates and the Class G-1 Certificates pro rata
based on the fractional undivided interest in the Larger C Class
Trust held by each such Larger C Class Certificateholder and (ii) if
prior to the end of such ten-day period any other Larger C Class
Certificateholder fails to notify the purchasing Larger C Class
Certificateholder of such other Larger C Class Certificateholder's
desire to participate in such a purchase, then such other Larger C
Class Certificateholder shall lose its right to purchase the
Applicable Certificates and the Class G-1 Certificates pursuant to
this Section 7.01(c); and
(d) subject to Section 7.01(f) below, if the Applicable
Certificates and the Class G-1 Certificates have been purchased by
the Larger C Class Certificateholders, the Smaller C Class
Certificateholders shall have the right (which shall not expire upon
any purchase of the Applicable Certificates and the Class G-1
Certificates pursuant to paragraph (a), (b) or (c) above) to
purchase all, but not less than all, of the Applicable Certificates,
the Class G-1 Certificates and the Larger C Class Certificates upon
ten days' prior written notice to the Class G-1 Trustee, the
Trustee, the Trustee of the Larger C Class and each other Smaller C
Class Certificateholder, provided that (i) if prior to the end of
such ten-day period any other Smaller C Class Certificateholder
notifies such purchasing Smaller C Class Certificateholder that such
other Smaller C Class Certificateholder wants to participate in such
purchase, then such other Smaller C Class Certificateholder may join
with the purchasing Smaller C Class Certificateholder to purchase
all, but not less than all, of the Applicable Certificates, the
Class G-1 Certificates and the Larger C Class Certificates pro rata
based on the fractional undivided interest in the Smaller C Class
Trust held by each such Smaller C Class Certificateholder and (ii)
if prior to the end of such ten-day period any other Smaller C Class
Certificateholder fails to notify the purchasing Smaller C Class
Certificateholder of such other Smaller C Class Certificateholder's
desire to participate in such a purchase, then such other Smaller C
Class Certificateholder shall lose its right to purchase the
Applicable Certificates, the Class G-1 Certificates and the Larger C
Class Certificates pursuant to this Section 7.01(d); and
(e) subject to Section 7.01(f) below, each Class D
Certificateholder (other than the Company or any of its Affiliates)
shall have the right (which shall not expire upon any purchase of
the Applicable Certificates, the Class G-1 Certificates and the
Class C-1 Certificates or the Class C-2 Certificates pursuant to
paragraph (a), (b), (c) or (d) above) to purchase all, but not less
than all, of the Applicable Certificates, the Class G-1
Certificates, the Class C-1 Certificates and the Class C-2
Certificates upon ten days' prior written notice to the Trustee, the
Class G-1 Trustee, the Class C-1 Trustee, the Class C-2 Trustee and
each other Class D Certificateholder, provided that (i) if prior to
the end of
20
such ten-day period any other Class D Certificateholder (other than
the Company or any of its Affiliates) notifies such purchasing Class
D Certificateholder that such other Class D Certificateholder wants
to participate in such purchase, then such other Class D
Certificateholder may join with the purchasing Class D
Certificateholder to purchase all, but not less than all, of the
Applicable Certificates, the Class G-1 Certificates, the Class C-1
Certificates and the Class C-2 Certificates pro rata based on the
fractional undivided interest in the Class D Trust held by each such
Class D Certificateholder and (ii) if prior to the end of such
ten-day period any other Class D Certificateholder fails to notify
the purchasing Class D Certificateholder of such other Class D
Certificateholder's desire to participate in such a purchase, then
such other Class D Certificateholder shall lose its right to
purchase the Applicable Certificates, the Class G-1 Certificates,
the Class C-1 Certificates and the Class C-2 Certificates pursuant
to this Section 7.01(e); and
(f) whether or not any Certificateholders of any Class has
exercised its rights pursuant to the foregoing provisions of this
Section 7.01, the Policy Provider (except in the case of a Policy
Provider Default), if it is then the Controlling Party, shall have
the right to purchase all, but not less than all, of the Applicable
Certificates and the Class G-1 Certificates upon ten days' written
notice to the Trustee, the Class G-1 Trustee, the Class C-1 Trustee
and the Class C-2 Trustee and the holders of the Applicable
Certificates, the Class G-1 Certificates, the Class C-1 Certificates
and the Class C-2 Certificates.
The purchase price with respect to the Applicable Certificates
shall be equal to the Pool Balance of the Applicable Certificates, together
with accrued and unpaid interest thereon to the date of such purchase, without
premium, but including any other amounts then due and payable to the
Applicable Certificateholders under this Agreement, the Intercreditor
Agreement, the Escrow Agreement or any Note Document or on or in respect of
the Applicable Certificates; provided, however, that (i) if such purchase
occurs after the record date specified in Section 2.3(b) of the Escrow
Agreement relating to the distribution of unused Deposits and accrued and
unpaid interest thereunder, such purchase price shall be reduced by the
aggregate amount of unused Deposits and interest to be distributed under the
Escrow Agreement (which deducted amounts shall remain distributable to, and
may be retained by, the Applicable Certificateholder as of such record date)
and (ii) if such purchase occurs after a Record Date, such purchase price
shall be reduced by the amount to be distributed hereunder on the related
Distribution Date (which deducted amounts shall remain distributable to, and
may be retained by, the Applicable Certificateholder as of such Record Date);
provided further that no such purchase of Applicable Certificates shall be
effective unless the purchaser(s) shall certify to the Trustee that
contemporaneously with such purchase, such purchaser(s) is purchasing,
pursuant to the terms of this Agreement and the Other Agreements, the
Applicable Certificates, the Class G-1 Certificates, the Class C-1
Certificates, and the Class C-2 Certificates which are senior to the
securities held by such purchaser(s). Each payment of the purchase price of
the Applicable Certificates referred to in the first sentence of this
paragraph shall be made to an account or accounts designated by the Trustee
and each such purchase shall be subject to the terms of this Section 7.01.
Each Applicable Certificateholder agrees by its acceptance of its Applicable
Certificate that it will, subject to Section 3.04 of the Basic Agreement, upon
payment from such Class G-1 Certificateholder(s), Class C-1
Certificateholder(s), Class C-2 Certificateholder(s) or Class D
Certificateholder(s), or the Policy Provider, as the case may be, of the
purchase price set forth in the first sentence of this paragraph, forthwith
sell, assign, transfer and convey to the
21
purchaser(s) thereof (without recourse, representation or warranty of any kind
except for its own acts), all of the right, title, interest and obligation of
such Applicable Certificateholder in this Agreement, the Escrow Agreement, the
Deposit Agreement, the Intercreditor Agreement, each Liquidity Facility, the
Policy, the Policy Provider Agreement, the Note Documents and all Applicable
Certificates and Escrow Receipts held by such Applicable Certificateholder
(excluding all right, title and interest under any of the foregoing to the
extent such right, title or interest is with respect to an obligation not then
due and payable as respects any action or inaction or state of affairs
occurring prior to such sale) and the purchaser shall assume all of such
Applicable Certificateholder's obligations under this Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, each Liquidity
Facility, the Policy, the Policy Provider Agreement, the Note Documents and
all such Applicable Certificates and Escrow Receipts. The Applicable
Certificates will be deemed to be purchased on the date payment of the
purchase price is made notwithstanding the failure of the Applicable
Certificateholders to deliver any Applicable Certificates and, upon such a
purchase, (i) the only rights of the Applicable Certificateholders will be to
deliver the Applicable Certificates to the purchaser(s) and receive the
purchase price for such Applicable Certificates and (ii) if the purchaser(s)
shall so request, such Applicable Certificateholder will comply with all the
provisions of Section 3.04 of the Basic Agreement to enable new Applicable
Certificates to be issued to the purchaser in such denominations as it shall
request. All charges and expenses in connection with the issuance of any such
new Applicable Certificates shall be borne by the purchaser thereof.
As used in this Section 7.01, the terms "Class G-1
Certificate", "Class G-1 Certificateholder", "Class G-1 Trust", "Class G-1
Trust Agreement", "Class G-1 Trustee", "Class C-1 Certificate", "Class C-1
Certificateholder", "Class C-1 Trust", "Class C-1 Trustee", "Class C-2
Certificate", "Class C-2 Certificateholder", "Class C-2 Trust", "Class C-2
Trustee", "Class D Certificate", "Class D Certificateholder", "Class D Trust"
and "Class D Trustee" shall have the respective meanings assigned to such
terms in the Intercreditor Agreement.
(g) This Section 7.01 supersedes and replaces Section 6.01(b)
of the Basic Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Basic Agreement Ratified. Except and so far as
herein expressly provided, all of the provisions, terms and conditions of the
Basic Agreement are in all respects ratified and confirmed; and the Basic
Agreement and this Trust Supplement shall be taken, read and construed as one
and the same instrument.
Section 8.02. GOVERNING LAW. THIS TRUST SUPPLEMENT AND THE
SERIES 2002-1G-2 CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK.
Section 8.03. Execution in Counterparts. This Trust Supplement
may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same
instrument.
22
Section 8.04. Notices. The Trustee agrees, in addition to the
agreements contained in Section 12.04 of the Basic Agreement, that notices to
the Applicable Certificateholders in respect of the Applicable Certificates
regarding (i) a Special Distribution Date pursuant to Section 4.02(c) of the
Basic Agreement, (ii) the final distribution pursuant to Section 8.01(a) of
this Trust Supplement, (iii) a default pursuant to Section 7.01 of the Basic
Agreement or (iv) the appointment of a successor Luxembourg Paying Agent
pursuant to Section 6.08 of this Trust Supplement, shall, so long as any of
the Applicable Certificates are listed on the Luxembourg Stock Exchange and
the rules of the Luxembourg Stock Exchange so require, promptly after such
mailing also to be published in the Luxemburger Wort or in another daily
newspaper having general circulation in Luxembourg (or, if not practical in
Luxembourg, elsewhere in Europe.)
23
IN WITNESS WHEREOF, the Guarantor, the Company and the Trustee
have caused this Trust Supplement to be duly executed by their respective
officers thereto duly authorized, as of the day and year first written above.
NORTHWEST AIRLINES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President &
Treasurer
NORTHWEST AIRLINES CORPORATION,
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President &
Treasurer
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Trustee
By:-------------------------------
Name:
Title:
24
IN WITNESS WHEREOF, the Guarantor, the Company and the Trustee
have caused this Trust Supplement to be duly executed by their respective
officers thereto duly authorized, as of the day and year first written above.
NORTHWEST AIRLINES, INC.
By:
--------------------------------
Name:
Title:
NORTHWEST AIRLINES CORPORATION,
as Guarantor
By:-------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. Ring
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Ring
Title: Assistant Vice President
24
EXHIBIT A
FORM OF CERTIFICATE
[[Insert if DTC Certificate:] Unless this certificate is
presented by an authorized representative of The Depository Trust Company, a
New York corporation ("DTC"), to Issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch the registered owner hereof, Cede & Co., has an interest
herein.]
Any person acquiring this Certificate by its acceptance hereof
or its interest herein, will be deemed to represent and warrant to and for the
benefit of each Owner Participant and the Company that either (i) the assets
of an employee benefit plan subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), of a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), of
entities which may be deemed to hold such plans' assets, or of another
employee benefit plan not subject to ERISA or Section 4975 of the Code (such
as a governmental, church or non-U.S. plan) have not been used to purchase
this Certificate or (ii) one or more prohibited transaction statutory or
administrative exemptions applies such that the use of such plan assets to
purchase and hold this Certificate will not constitute a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code or a violation under any
federal, state or local law that is substantially similar to the provisions of
Title I of ERISA or Section 4975 of the Code.
NORTHWEST AIRLINES 2002-1G-2 PASS THROUGH TRUST
Pass Through
Certificate, Series ▇▇▇▇-▇▇-▇
▇▇▇▇▇▇▇▇ Date: ______ __, 2002
Final Legal Distribution Date: _______ __, 20__
Evidencing A Fractional Undivided Interest In The Northwest Airlines
2002-1G-2 Pass Through Trust, The Property Of Which Includes Certain
Equipment Notes Each Secured By An Aircraft Leased To Or Owned By
Northwest Airlines, Inc.
Certificate $________ Fractional undivided interest representing 0.__%
No. _____ of the Trust per $1,000 of Reference Principal Amount
THIS CERTIFIES THAT _______________, for value received, is the
registered owner of a Fractional Undivided Interest in the amount of $_______
(the "Reference Principal Amount") in the Northwest Airlines 2002-1G-2 Pass
Through Trust (the "Trust") created by State Street Bank and Trust Company of
Connecticut, National Association, as trustee (the "Trustee"), pursuant to a
Pass Through Trust Agreement, dated as of June 3, 1999 (as amended or
supplemented, the "Basic Agreement"), by and among the Trustee, Northwest
Airlines
Corporation, a Delaware corporation (the "Guarantor"), and Northwest Airlines,
Inc., a Minnesota corporation (the "Company"), as supplemented by Trust
Supplement No. 2002-1G-2 thereto, dated as of _____ __, 2002 (collectively,
the "Agreement"), by and among the Trustee, the Guarantor and the Company, a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Agreement. This Certificate is one
of the duly authorized Certificates designated as "Pass Through Certificates,
Series 2002-1G-2" (herein called the "Certificates"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement and the Intercreditor Agreement, to which Agreement the
Certificateholder of this Certificate by virtue of the acceptance hereof
assents and by which such Certificateholder is bound. The property of the
Trust includes certain Equipment Notes and all rights of the Trust to receive
payments under the Intercreditor Agreement, the Primary Liquidity Facility and
the Policy (the "Trust Property"). Each issue of the Equipment Notes is
secured by a security interest in the related Aircraft leased to or owned by
the Company.
Each of the Certificates represents a Fractional Undivided
Interest in the Trust and the Trust Property and has no rights, benefits or
interest in respect of any other separate trust established pursuant to the
terms of the Basic Agreement for any other series of certificates issued
pursuant thereto.
Subject to and in accordance with the terms of the Agreement
and the Intercreditor Agreement, from funds then available to the Trustee,
there will be distributed on each February 20, May 20, August 20 and November
20 (a "Regular Distribution Date"), commencing on August 20, 2002 to the
Person in whose name this Certificate is registered at the close of business
on the 15th day preceding the Regular Distribution Date, an amount in respect
of the Scheduled Payments on the Equipment Notes due on such Regular
Distribution Date, the receipt of which has been confirmed by the Trustee,
equal to the product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Scheduled Payments. Subject
to and in accordance with the terms of the Agreement and the Intercreditor
Agreement, in the event that Special Payments on the Equipment Notes are
received by the Trustee, from funds then available to the Trustee, there shall
be distributed on the applicable Special Distribution Date, to the Person in
whose name this Certificate is registered at the close of business on the 15th
day preceding the Special Distribution Date, an amount in respect of such
Special Payments on the Equipment Notes, the receipt of which has been
confirmed by the Trustee, equal to the product of the percentage interest in
the Trust evidenced by this Certificate and an amount equal to the sum of such
Special Payments so received. If a Regular Distribution Date or Special
Distribution Date is not a Business Day, distribution shall be made on the
immediately following Business Day with the same force and effect as if made
on such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee shall mail notice of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee
by check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon, except
that with respect to Certificates registered on the Record Date in the name of
DTC (or its nominees), such distribution shall be made by wire transfer.
Except as otherwise provided in the Agreement and notwithstanding the above,
the final distribution on this
2
Certificate will be made after notice mailed by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency of the Trustee specified in such notice.
The Certificates do not represent an obligation of, or an
obligation guaranteed by, or an interest in, the Guarantor, the Company or the
Trustee or any affiliate thereof. The Certificates are limited in right or
payment, all as more specifically set forth herein and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Certificateholder
of this Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made
to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds, and duties evidenced hereby. A copy of the
Agreement may be examined during normal business hours at the principal office
of the Trustee, and at such other places, if any, designated by the Trustee,
by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Guarantor or the Company and the rights of the
Certificateholders under the Agreement at any time by the Guarantor, the
Company and the Trustee with the consent of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate
and of any Certificate issued upon the transfer hereof or in exchange hereof
or in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
set forth, the transfer of this Certificate is registrable in the Register
upon surrender of this Certificate for registration of transfer at the offices
or agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar, duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar duly executed
by the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided
Interests and integral multiples thereof. As provided in the Agreement and
subject to certain limitations therein set forth, the Certificates are
exchangeable for new Certificates of authorized denominations evidencing the
same aggregate Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
3
So long as any of the Certificates are listed on the Luxembourg
Stock Exchange and the rules of that stock exchange so require, notices to the
Certificateholders shall be given by publication in a daily newspaper having
general circulation in Luxembourg (which is expected to be the Luxemburger
Wort).
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
Each Certificateholder or beneficial owner of a Certificate, by
its acceptance of this Certificate or a beneficial interest herein, agrees to
treat the Trust as a grantor trust for all U.S. federal, state and local
income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to the Agreement and the disposition of all property held as part of the Trust
Property.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇-▇
▇▇▇▇ THROUGH TRUST
By: STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as
Trustee
By: ________________________
Name:
Title:
4
FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-
mentioned Agreement.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee
By: ________________________
Name:
Title:
5
EXHIBIT B
DTC Letter of Representations
EXHIBIT C
REGULAR DISTRIBUTION DATES
AND
SCHEDULED PAYMENTS
Regular Distribution Date Scheduled Payment
------------------------- -----------------