EX-99(D)
EXHIBIT 99(D)
[For A319's]
PURCHASE AGREEMENT ASSIGNMENT
[NW ____ _]
Dated as of [________ __, ____]
between
NORTHWEST AIRLINES, INC.,
Assignor
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Assignee
_______________
One Airbus Industrie A319-114
Aircraft
PURCHASE AGREEMENT ASSIGNMENT
[NW ____ _]
This PURCHASE AGREEMENT ASSIGNMENT [NW ____ _], dated as of
[_________ __, ____] between NORTHWEST AIRLINES, INC., a Minnesota
corporation ("Assignor"), and FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as Owner Trustee ("Assignee")
(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
Industrie A319-114 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 Industrie, 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
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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
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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 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
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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.
(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 First Security Bank, National
Association, for its own willful misconduct or grossly negligent conduct
for which it would otherwise be liable; and provided, further, that
nothing contained in this Section 4(d) shall be construed to limit the
exercise and enforcement in accordance with the terms of this Assignment
or such other agreements of rights and remedies against the Trust Estate.
The foregoing provisions of this Section 4(d) shall survive the
termination of this Assignment and the other Operative Documents.
5. Further Assurances. Assignor agrees that at any time and
from time to time Assignor will promptly and duly execute and deliver any
and all such further instruments and documents and take such further
action as Assignee may reasonably request in writing in order to obtain
the full benefits of this Assignment and of the rights and powers herein
granted, provided, however, that the execution and delivery of any such
instrument or document shall not in any way limit or restrict the rights
or enlarge the obligations of Assignor in respect of any of the Operative
Documents.
6. Assignor's Representations, Warranties and Covenants.
Assignor does hereby represent and warrant that Assignor has not assigned
or pledged, and hereby covenants that it will not assign or pledge, so
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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, 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,
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the Supplier and the Manufacturer may act with aquittance 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:
FIRST SECURITY BANK,
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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EX-99(D)
EXHIBIT 99(D)
[For 757's]
PURCHASE AGREEMENT ASSIGNMENT
[NW ____ __]
Dated as of ________ __,_____
between
NORTHWEST AIRLINES, INC.,
Assignor
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Assignee
__________________
One Boeing 757-251
Aircraft
PURCHASE AGREEMENT ASSIGNMENT
[NW _____ _]
This PURCHASE AGREEMENT ASSIGNMENT [NW _____ _], dated as of
[______________] between NORTHWEST AIRLINES, INC., a Minnesota corporation
("Assignor"), and FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner Trustee ("Assignee") (the
"Assignment").
W I T N E S S E T H:
WHEREAS, pursuant to the Purchase Agreement, the Manufacturer has
agreed to sell and Assignor has agreed to purchase several Boeing 757-251
aircraft, including the Aircraft covered by the Participation Agreement;
WHEREAS, pursuant to the Participation Agreement, Assignor has
agreed to sell, and Assignee has agreed to purchase, the Aircraft;
WHEREAS, Assignor and Assignee are entering into a Lease Agreement
[NW _____ _], dated as of the date hereof (as the same may hereafter from
time to time be supplemented, amended or modified, the "Lease"), pursuant to
which the Aircraft will be leased by Assignee to Assignor; and
WHEREAS, Assignor, on the terms and conditions herein and in the
Consent and Agreement of the Manufacturer attached hereto, desires to assign
to Assignee certain of Assignor's rights and interests in and under the
Purchase Agreement relating to the Aircraft, and Assignee desires to accept
such assignment, as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the parties hereto
agree as follows:
1. Assignment; Rights Reserved. Subject to the provisions of
paragraph 3(a) hereof, Assignor does hereby sell, assign, transfer and set
over unto Assignee, except to the extent reserved below, all of Assignor's
rights and interests in and to the Purchase Agreement, as and to the extent
that the same relate to the Aircraft and the operation thereof, including,
without limitation, (a) all claims for damages in respect of the Aircraft
arising as a result of any default by the Manufacturer under the Purchase
Agreement, including, without limitation, all warranty, service life policy,
aircraft performance guarantee and indemnity provisions in the Purchase
Agreement in respect of the Aircraft and all claims thereunder and (b) any
and all rights of Assignor to compel performance of the terms of the Purchase
Agreement in respect of the Aircraft; reserving to Assignor, however, (i) all
of Assignor's rights and interests in and to the Purchase Agreement as and to
the extent that it relates to any matters not in respect of the Aircraft,
(ii) all of Assignor's rights and interests under the Purchase Agreement
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(other than under Exhibit B (Product Assurance Document) thereof), (iii) all
of Assignor's rights and interests in or arising out of any payments or
deposits made or to be made by Assignor or amounts credited or to be credited
or paid or to be paid by the Manufacturer to Assignor in respect of the
Aircraft under the Purchase Agreement, (iv) all of Assignor's rights and
interests in and to any Spare Parts General Terms Agreement and (v) with
respect to the Aircraft so long, and only so long, as the Manufacturer shall
not have received written notice from the Indenture Trustee or the Owner
Trustee (including by mail, courier, telex, or telecopy thereof from the
Indenture Trustee or the Owner Trustee addressed to the Manufacturer's Vice
President - Contracts at ▇.▇. ▇▇▇ ▇▇▇▇, Mail Code 21-34, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
if by mail; ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇.▇., ▇/▇ ▇▇-▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, if by
courier; ▇▇▇-▇▇▇-▇▇▇▇ if by telecopy and 32-9430 (answerback BOEINGREN), if
by telex) that an Event of Default under the Lease has occurred and is
continuing or that the Lease has terminated, all rights to demand, accept and
retain all rights in and to property (other than the Aircraft), data,
documents, training and services of any kind which the Manufacturer is
obligated to provide or does provide pursuant to the Purchase Agreement with
respect to the Aircraft.
2. Acceptance of Assignment. Assignee hereby accepts the
assignment contained in paragraph 1 hereof.
3. Rights of Assignor in Absence of Event of Default.
(a) Notwithstanding the foregoing, if and so long as (A) the
Aircraft shall be subject to the Lease and (B) the Manufacturer shall not
have received written notice from the Indenture Trustee or the Owner Trustee
(including by mail, courier, telex, or telecopy thereof from the Indenture
Trustee or the Owner Trustee addressed to the Manufacturer's Vice President -
Contracts at ▇.▇. ▇▇▇ ▇▇▇▇, Mail Code 21-34, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ if by mail;
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇.▇., ▇/▇ ▇▇-▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, if by courier; 425-
237-1706 if by telecopy and 32-9430 (answerback BOEINGREN), if by telex) that
an Event of Default under the Lease has occurred and is continuing,
(1) Assignee authorizes Assignor, on behalf of but to the exclusion of
Assignee, to exercise in Assignor's own name (i) such rights and powers of
the "Buyer" under the Purchase Agreement and (ii) such rights as Assignee may
have with respect to the Aircraft under any warranty, covenant,
representation, service life policy, aircraft performance guarantee,
indemnity or product support agreement of the Manufacturer or any
subcontractor or vendor with respect thereto and, subject to paragraph 3(c)
hereof, to retain any recovery or benefit resulting from the enforcement of
any warranty, covenant, representation, service life policy, aircraft
performance guarantee, indemnity, or product support agreement of the
Manufacturer or any subcontractor or vendor under the Purchase Agreement in
respect of the Aircraft, and (2) Assignee shall, at Assignor's expense,
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cooperate with Assignor and take such actions as Assignor reasonably deems
necessary to enable Assignor to enforce such rights and claims.
(b) Effective upon the receipt by the Manufacturer of written
notice from the Indenture Trustee or the Owner Trustee that an Event of
Default under the Lease has occurred and is continuing and thereafter until
the Manufacturer shall have received written notice from the Indenture
Trustee or the Owner Trustee that such Event of Default has been cured or
waived: (i) at Assignee's option, the authorization given to Assignor under
paragraph 3(a) hereof to enforce such rights and claims shall henceforth
cease to be effective and Assignee and its successors and permitted assigns
shall, to the exclusion of Assignor, be entitled to assert and enforce such
rights and claims as substitute party plaintiff or otherwise, and Assignor
shall, at the request of Assignee or its successors or permitted assigns and
at Assignor's expense, cooperate with and take such action as reasonably
necessary to enable Assignee and its successors and permitted assigns to
enforce such rights and claims, and Assignee, if it shall elect to enforce
such rights or claims, shall use its best efforts to assert and enforce such
rights and claims, and (ii) Assignor will be deemed to have irrevocably
constituted Assignee and its successors and permitted assigns Assignor's true
and lawful attorney (it being acknowledged that such appointment is coupled
with an interest, namely Assignee's rights acquired and to be acquired
hereunder) with full power (in the name of Assignor or otherwise) to ask,
require, demand, receive, settle, compromise, compound and give acquittance
for any and all monies and claims for monies due and to become due under, or
arising out of, the Purchase Agreement in respect of the Aircraft, to the
extent that the same have been assigned by this Assignment, and for such
period as Assignee may exercise rights with respect thereto under this clause
(ii), to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute (or, if
previously commenced, assume control of) any proceedings and to obtain any
recovery in connection therewith which Assignee may deem to be necessary or
advisable in the premises.
(c) Notwithstanding this Assignment and anything herein to the
contrary, all amounts that the Manufacturer is obligated to pay to Assignor
under the Purchase Agreement with respect to the Aircraft, including, without
limitation, in respect of refunds thereunder or resulting from the
enforcement of any warranty, service life policy, aircraft performance
guarantee or indemnity or product support agreement thereunder or the
enforcement or exercise of any right or power under the Purchase Agreement or
hereunder (a "Manufacturer Payment") (excluding, however, from the
Manufacturer Payments any amounts the Manufacturer is obligated to pay to
Assignor with respect to the rights reserved to Assignor in clauses (i)
through (v) of paragraph 1 hereof, which shall be paid to Assignor), will be
payable and applicable as follows: so long as the Aircraft is subject to the
Lease, all the Manufacturer Payments shall be paid to Assignor unless and
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until the Manufacturer shall have received written notice from the Indenture
Trustee or the Owner Trustee that an Event of Default under the Lease has
occurred and is continuing, whereupon the Manufacturer will, until the
Manufacturer shall have received written notice from the Indenture Trustee or
the Owner Trustee that all Events of Default under the Lease have been cured
or waived, make any and all such payments directly to the Indenture Trustee
or (if written notice has been given to the Manufacturer by Assignee that the
Trust Indenture is no longer in effect in accordance with its terms and all
amounts due and payable under the Secured Certificates have been paid in
full) Assignee. Any amounts received by Assignee pursuant to the immediately
preceding sentence shall, to the extent not theretofore applied in
satisfaction of sums owing to Assignee in accordance with the terms of the
Lease, be returned to Assignor promptly after all Events of Default under the
Lease have been cured or waived.
(d) For all purposes of this Assignment, the Manufacturer shall
not be deemed to have knowledge of an Event of Default under the Lease or of
the discontinuance or waiver of an Event of Default unless and until the
Manufacturer shall have received written notice thereof from the Owner
Trustee or the Indenture Trustee (including by mail, courier, telex, or
telecopy thereof from the Indenture Trustee or the Owner Trustee addressed to
the Manufacturer's Vice President - Contracts at ▇.▇. ▇▇▇ ▇▇▇▇, Mail Code
21-34, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ if by mail; ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇.▇., ▇/▇ ▇▇-▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, if by courier; ▇▇▇-▇▇▇-▇▇▇▇ if by telecopy and 32-9430
(answerback BOEINGREN), if by telex) and, in acting in accordance with the
terms and conditions of the Purchase Agreement and this Assignment, the
Manufacturer may rely conclusively upon any such notice.
4. Certain Rights and Obligations of the Parties.
(a) Anything herein contained to the contrary notwithstanding:
(i) Assignor shall at all times remain liable to the Manufacturer under the
Purchase Agreement in respect of the Aircraft to perform all of the duties
and obligations of "Buyer" thereunder to the same extent as if this
Assignment had not been executed; (ii) the exercise by Assignee of any of the
rights assigned hereunder shall not release Assignor from any of its duties
or obligations to the Manufacturer under the Purchase Agreement in respect of
the Aircraft except to the extent that such exercise by Assignee shall
constitute performance of such duties and obligations; and (iii) except as
provided in paragraph 4(b) hereof, Assignee shall not have any obligation or
liability under the Purchase Agreement by reason of, or arising out of, this
Assignment or be obligated to perform any of the obligations or duties of
Assignor under the Purchase Agreement or to make any payment or make any
inquiry as to the sufficiency of any payment received by it or to present or
to file any claim or to take any other action to collect or enforce any claim
for any payment assigned hereunder.
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(b) Without in any way releasing Assignor from any of its duties
or obligations under the Purchase Agreement, Assignee confirms for the
benefit of the Manufacturer that, insofar as the provisions of the Purchase
Agreement relate to the Aircraft, in exercising any rights under the Purchase
Agreement, or in making any claim with respect to the Aircraft or other
things delivered or to be delivered pursuant to the Purchase Agreement, the
terms and conditions of the Purchase Agreement (including, without
limitation, the warranty disclaimer and indemnity provisions in the product
assurance and customer support documents, Exhibits B and C, respectively, to
the Purchase Agreement) shall apply to, and be binding upon, Assignee to the
same extent as Assignor. Assignee hereby confirms that it shall be deemed
for all purposes to have read and be familiar with the Purchase Agreement
(insofar as it relates to the Aircraft) and to understand thoroughly the
terms and conditions thereof.
(c) Nothing contained herein shall (i) subject the Manufacturer to
any liability to which it would not otherwise be subject under the Purchase
Agreement or (ii) modify in any respect the Manufacturer's contract rights
thereunder, except as provided in the Consent and Agreement attached hereto.
(d) The parties hereto agree that all of the statements,
representations, covenants and agreements made by Assignee as Owner Trustee
(when made in such capacity) contained in this Assignment and any agreement
referred to herein or in the Participation Agreement other than the Trust
Agreement, unless expressly otherwise stated, are made and intended only for
the purpose of binding the Trust Estate and establishing the existence of
rights and remedies which can be exercised and enforced against the Trust
Estate. Therefore, anything contained in this Assignment or such other
agreements to the contrary notwithstanding (except for any express provisions
that Assignee is responsible for in its individual capacity), no recourse
shall be had with respect to this Assignment or such other agreements against
Assignee in its individual capacity or against any institution or person
which becomes a successor trustee or co-trustee or any officer, director,
trustee, servant or direct or indirect parent or controlling person or
persons of any of them; provided, however, that this Section 4(d) shall not
be construed to prohibit any action or proceeding against First Security
Bank, National Association, for its own willful misconduct or grossly
negligent conduct for which it would otherwise be liable; and provided,
further, that nothing contained in this Section 4(d) shall be construed to
limit the exercise and enforcement in accordance with the terms of this
Assignment or such other agreements of rights and remedies against the Trust
Estate. The foregoing provisions of this Section 4(d) shall survive the
termination of this Assignment and the other Operative Documents.
5. Further Assurances. Assignor agrees that at any time and from
time to time Assignor will promptly and duly execute and deliver any and all
such further instruments and documents and take such further action as
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Assignee may reasonably request in writing in order to obtain the full
benefits of this Assignment and of the rights and powers herein granted,
provided, however, that the execution and delivery of any such instrument or
document shall not in any way limit or restrict the rights or enlarge the
obligations of Assignor in respect of any of the Operative Documents.
6. Assignor's Representations, Warranties and Covenants.
Assignor does hereby represent and warrant that Assignor has not assigned or
pledged, and hereby covenants that it will not assign or pledge, so long as
this Assignment shall remain in effect, the whole or any part of the rights
hereby assigned to anyone other than Assignee.
7. No Amendment of Purchase Agreement. Assignee agrees that, so
long as the Lease is in effect, it will not enter into any amendment,
modification, supplement, rescission, cancellation or termination of the
Purchase Agreement in respect of the Aircraft without the prior written
consent of Assignor.
8. Execution of Assignment. This Assignment is being executed
and delivered by Assignor and Assignee concurrently with the execution and
delivery of the Lease.
9. Binding Effect. This Assignment shall be binding upon and
shall inure to the benefit of Assignor, Assignee and their respective
successors and permitted assigns.
10. GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS ASSIGNMENT IS
BEING DELIVERED IN THE STATE OF NEW YORK.
11. Definitions. All terms not defined herein, which are used
herein in capitalized form and which are defined in the Lease, shall when
used herein have the meanings specified or referred to in the Lease.
12. Notice. Except as otherwise expressly provided herein, notice
hereunder may be given, and shall be deemed to have been received when given,
as provided in Section 17 of the Lease.
13. Counterparts. This Assignment may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all of such counterparts shall together constitute
but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement Assignment to be duly executed as of the day and year first above
written.
NORTHWEST AIRLINES, INC., as Assignor
By:_______________________________________
Name:
Title:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
Not in its individual capacity
but solely as Owner Trustee,
as Assignee
By:_______________________________________
Name:
Title:
The undersigned, not in its individual capacity but solely as
Indenture Trustee for the benefit of the holders of Secured Certificates and
as assignee of, and holder of a security interest in and to the foregoing
Purchase Agreement Assignment and the Purchase Agreement pursuant to such
Purchase Agreement Assignment, agrees to the terms of the foregoing Purchase
Agreement Assignment and agrees that its rights and remedies under such
Purchase Agreement Assignment shall be subject to the terms and conditions
thereof, including paragraph 4(b), and of the Purchase Agreement.
STATE STREET BANK AND
TRUST COMPANY,
Not in its individual capacity
but solely as Indenture Trustee
By:_______________________________________
Name:
Title:
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