==============================================================================
PURCHASE AGREEMENT ASSIGNMENT
[NW ____ _]
Dated as of [________ __, ____]
between
NORTHWEST AIRLINES, INC.,
Assignor
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Assignee
---------------
One Airbus Industrie [A320-212] [A319-113]
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 [A320-212]
[A319-113] 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 Agreement or any letter agreement
referred to therein) as such Clauses relate to the Aircraft (the "Assigned
Warranties"), and (ii) the Guaranty as it relates to the Assigned Warranties;
reserving to Assignor, however, all of Assignor's rights and interests in and to
Clauses 12, 13 and, to the
extent relating to acts to be performed following the date of enforcement of
this Purchase Agreement Assignment, 17 of the Purchase Agreement and the
Guaranty as and to the extent that such Clauses of the Purchase Agreement and
the Guaranty relate to aircraft other than the Aircraft and to the extent that
the Purchase Agreement and the Guaranty relate to any other matters not directly
pertaining to the Aircraft.
2. Acceptance of Assignment. Assignee hereby accepts the assignment
contained in paragraph 1 hereof.
3. Rights of Assignor in Absence of Event of Default.
(a) With respect to the assignment contained in paragraph 1 hereof,
and notwithstanding the foregoing, if and so long as (A) the Aircraft shall be
subject to the Lease and (B) no Event of Default under the Lease has occurred
and is continuing, (1) Assignee authorizes Assignor, on behalf of but to the
exclusion of Assignee, to exercise in Assignor's own name (i) all rights and
powers related to the Assigned Warranties and the Guaranty as it relates to the
Assigned Warranties and (ii) subject to paragraph 3(c) hereof, to retain any
recovery or benefit resulting from the enforcement of any Assigned Warranties in
respect of the Aircraft or resulting from the enforcement of the Guaranty in
respect of the same, and (2) Assignee shall, at Assignor's expense, cooperate
with Assignor and take such actions as Assignor reasonably deems necessary to
enable Assignor to enforce such rights and claims.
(b) In the event that an Event of Default under the Lease has
occurred and is continuing and thereafter until such Event of Default has been
cured or waived: (i) at Assignee's option, the authorization given to Assignor
under paragraph 3(a) hereof to enforce such rights and claims shall henceforth
cease to be effective and Assignee and its successors and permitted assigns
shall, to the exclusion of Assignor, be entitled to assert and enforce such
rights and claims as substitute party plaintiff or otherwise, and Assignor
shall, at the request of Assignee or its successors or permitted assigns and at
Assignor's expense, cooperate with and take such action as reasonably necessary
to enable Assignee and its successors and permitted assigns to enforce such
rights and claims, and Assignee, if it shall elect to enforce such rights or
claims, shall use its best efforts to assert and enforce such rights and claims,
and (ii) Assignor will be deemed to have irrevocably constituted Assignee and
its successors and permitted assigns Assignor's true and lawful attorney (it
being acknowledged that such appointment is coupled with an interest, namely
Assignee's rights acquired and to be acquired hereunder) with full power (in the
name of Assignor or otherwise) to ask, require, demand, receive, settle,
compromise, compound and give acquittance for any and all monies and claims for
monies due and to become due under, or arising out of, the Purchase Agreement or
the Guaranty in respect of the Aircraft, to the extent that the same have been
assigned by this Assignment, and for such period as Assignee may exercise rights
with respect thereto under this clause (ii), to endorse any checks or other
instruments or orders in connection therewith and to file any claims or take any
action or institute (or, if previously commenced, assume control of) any
proceedings and to obtain any recovery in connection therewith which Assignee
may deem to be necessary or advisable in the premises.
(c) Notwithstanding this Assignment and anything herein to the
contrary (but subject to all the terms of the Purchase Agreement), all amounts
that the Supplier or the
-2-
Manufacturer is obligated to pay to Assignor under Clauses 12, 13 and, to the
extent relating to acts to be performed following the date of enforcement of
this Purchase Agreement Assignment, 17 of the Purchase Agreement with respect to
the Aircraft or the Guaranty as it relates to such Clauses (a "Supplier
Payment"), will be payable and applicable as follows: so long as the Aircraft is
subject to the Lease, all Supplier Payments shall be paid to Assignor unless and
until an Event of Default under the Lease has occurred and is continuing,
whereupon the Assignee shall direct the Supplier to make all Supplier Payments
directly to the Indenture Trustee or (if written notice has been given to the
Supplier and the Manufacturer that the Trust Indenture is no longer in effect in
accordance with its terms and all amounts due and payable under the Secured
Certificates have been paid in full) Assignee. Any amounts received by Assignee
pursuant to the immediately preceding sentence shall, to the extent not
theretofore applied in satisfaction of sums owing to Assignee in accordance with
the terms of the Lease, be returned to Assignor promptly after all Events of
Default under the Lease have been cured or waived.
4. Certain Rights and Obligations of the Parties.
(a) Anything herein contained to the contrary notwithstanding: (i)
Assignor shall at all times remain liable to the Supplier under the Purchase
Agreement in respect of the Aircraft to perform all of the duties and
obligations of "Northwest" thereunder to the same extent as if this Assignment
had not been executed; (ii) the exercise by Assignee of any of the rights
assigned hereunder shall not release Assignor from any of its duties or
obligations to the Supplier under the Purchase Agreement in respect of the
Aircraft except to the extent that such exercise by Assignee shall constitute
performance of such duties and obligations; and (iii) except as provided in
paragraph 4(b) hereof, neither Assignee nor any of its successors or assigns
shall have any obligation or liability under the Purchase Agreement by reason
of, or arising out of, this Assignment or be obligated to perform any of the
obligations or duties of Assignor under the Purchase Agreement or to make any
payment or make any inquiry as to the sufficiency of any payment received by it
or to present or to file any claim or to take any other action to collect or
enforce any claim for any payment assigned hereunder.
(b) Without in any way releasing Assignor from any of its duties or
obligations under the Purchase Agreement, Assignee confirms for the benefit of
the Supplier and the Manufacturer that, insofar as the provisions of the
Purchase Agreement relate to the Aircraft, in exercising any rights under the
Purchase Agreement or the Guaranty, or in making any claim with respect to the
Aircraft or other goods and services delivered or to be delivered pursuant to
the Purchase Agreement or the Guaranty, the terms and conditions of the Purchase
Agreement and the Guaranty shall apply to, and be binding upon, Assignee to the
same extent as Assignor. Assignee hereby confirms that it shall be deemed for
all purposes to have read and be familiar with the Purchase Agreement and the
Guaranty and the forms of Manufacturer and Supplier consents to this Agreement
and to understand thoroughly the terms and conditions thereof.
(c) Nothing contained herein shall (i) subject the Supplier or the
Manufacturer to any liability to which it would not otherwise be subject under
the Purchase Agreement or the Guaranty or (ii) modify in any respect the
Supplier's or the Manufacturer's contract rights thereunder, except as provided
in the Consent and Agreement attached hereto.
-3-
(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 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
-4-
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: ________) and, in acting
in accordance with the terms of the Purchase Agreement, the Guaranty and this
Assignment, the Supplier and the Manufacturer may act with 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.
-5-
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:
-6-