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FIRST AMENDMENT
TO
TRUST INDENTURE AND SECURITY AGREEMENT
[NW 1997 H]
Dated as of
December 29, 1997
Between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
except as expressly stated herein,
but solely as Owner Trustee,
Owner Trustee
and
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity,
except as expressly stated herein,
but solely as Indenture Trustee,
Indenture Trustee
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SECURED CERTIFICATES COVERING
ONE BRITISH AEROSPACE AVRO 146-RJ85A AIRCRAFT
BEARING U.S. REGISTRATION ▇▇▇▇ N508XJ
LEASED BY NORTHWEST AIRLINES, INC.
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TABLE OF CONTENTS
Page
SECTION 1. Amendment of Second "Whereas" Clause of the Original Trust
Indenture......................................................1
SECTION 2. Amendment of Third "Whereas" Clause of the Original Trust
Indenture......................................................2
SECTION 3. Amendment of the Granting Clause of the Original Trust
Indenture......................................................2
SECTION 4. Amendment of Section 1.01 of the Original Trust Indenture .....2
SECTION 5. Amendment of Section 2.07 of the Original Trust Indenture .....2
SECTION 6. Amendment of Sections 2.10(c), 2.10(d), 2.10(e) and 2.10(f) of
the Original Trust Indenture...................................2
SECTION 7. Amendment of Sections 2.12(a) of the Original Trust Indenture .2
SECTION 8. Amendment of Section 2.13 of the Original Trust Indenture......2
SECTION 9. Amendment of Sections 2.16, 2.17, 2.18, 2.19 and 2.20 of the
Original Trust Indenture.......................................2
SECTION 10. Amendment of Section 3.01 of the Original Trust Indenture......2
SECTION 11. Amendment of Section 3.02 of the Original Trust Indenture......2
SECTION 12. Amendment of Section 9.01(a) of the Original Trust Indenture...3
SECTION 13. Amendment of Section 9.01(c) of the Original Trust Indenture...3
SECTION 14. Amendment of Schedule I to the Original Trust Indenture and
the Secured Certificates Issued Thereunder.....................3
SECTION 15. Amendment of Exhibit A to Original Trust Indenture ............3
SECTION 16. Ratification ..................................................3
SECTION 17. Miscellaneous .................................................3
ANNEX A Definitions
EXHIBIT A Form of Trust Agreement and Indenture Supplement
SCHEDULE I Secured Certificates Amortization
-i-
FIRST AMENDMENT TO
TRUST INDENTURE AND SECURITY AGREEMENT
[NW 1997 H]
This FIRST AMENDMENT TO TRUST INDENTURE AND SECURITY AGREEMENT [NW
1997 H], dated as of December 29, 1997 (the or this "Amendment"), between FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity, except as expressly stated in the Original Trust Indenture
(as defined below), but solely as Owner Trustee under the Trust Agreement
(together with its successors under the Trust Agreement, the "Owner Trustee"),
and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company, not in
its individual capacity, except as expressly stated in the Original Trust
Indenture, but solely as Indenture Trustee hereunder (together with its
successors hereunder, the "Indenture Trustee"), hereby amends the Trust
Indenture and Security Agreement [NW 1997 H], dated as of September 25, 1997
(said Trust Indenture and Security Agreement, prior to being amended hereby, the
"Original Trust Indenture", and as amended hereby, the "Trust Indenture"),
between the Owner Trustee and the Indenture Trustee.
Unless the context otherwise requires, capitalized terms utilized
herein shall have the respective meanings set forth in Annex A hereto for all
purposes of this Amendment.
W I T N E S S E T H:
WHEREAS, as contemplated by the Original Participation Agreement, the
Initial Owner Participant transferred the Beneficial Interest to the Owner
Participant pursuant to the Assignment and Assumption Agreement;
WHEREAS, concurrently with the execution and delivery of this
Amendment, the Owner Trustee, the Indenture Trustee, and certain other parties
executed and delivered the Participation Agreement;
WHEREAS, concurrently with the execution and delivery of this
Amendment, pursuant to Section 2.18 of the Original Trust Indenture the
Indenture Trustee released from the Collateral Account to the Owner Trustee an
amount of cash equal to the Debt Portion;
WHEREAS, pursuant to Section 1(c) of the Participation Agreement and
Section 2.20 of the Original Trust Indenture, the Owner Trustee hereby elects to
amend Schedule I to the Original Trust Indenture and Schedule I to each Secured
Certificate;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto agree that the Original Trust Indenture is amended as
follows:
SECTION 1. Amendment of Second "Whereas" Clause of the Original Trust
Indenture. The second "Whereas" Clause of the Original Trust Indenture is hereby
amended by deleting "Initial" each time it appears therein.
SECTION 2. Amendment of Third "Whereas" Clause of the Original Trust
Indenture. The third "Whereas" Clause of the Original Trust Indenture is hereby
amended by deleting from clause (ii) thereof "mortgage and pledge by the Owner
Trustee to the Indenture Trustee, as part of the Trust Indenture Estate
hereunder of the Owner Trustee's right, title and interest in and to the Liquid
Collateral and after the Delivery Date the assignment,".
SECTION 3. Amendment of the Granting Clause of the Original Trust
Indenture. The Granting Clause of the Original Trust Indenture is hereby amended
by deleting clause (5) thereof in its entirety and inserting in lieu thereof
"[Intentionally Omitted]".
SECTION 4. Amendment of Section 1.01 of the Original Trust Indenture.
Section 1.01 of the Original Trust Indenture is hereby amended by deleting the
word "hereto" therein and inserting in lieu thereof "to the First Amendment to
Trust Indenture and Security Agreement [NW 1997 H], dated as of December 29,
1997, between the Owner Trustee and the Indenture Trustee".
SECTION 5. Amendment of Section 2.07 of the Original Trust Indenture.
Section 2.07 of the Original Trust Indenture is hereby amended by inserting
"8(aa)," between "8(t)," and "10," in the penultimate sentence thereof.
SECTION 6. Amendment of Sections 2.10(c), 2.10(d), 2.10(e) and 2.10(f)
of the Original Trust Indenture. Sections 2.10(c), 2.10(d), 2.10(e) and 2.10(f)
of the Original Trust Indenture are hereby deleted in their entirety.
SECTION 7. Amendment of Sections 2.12(a) of the Original Trust
Indenture. Sections 2.12(a) of the Original Trust Indenture is hereby amended by
deleting the third, fourth, fifth and sixth sentences thereof.
SECTION 8. Amendment of Section 2.13 of the Original Trust Indenture.
Section 2.13 of the Original Trust Indenture is hereby amended by deleting
"Section 1(e)(i) or" from the first sentence thereof.
SECTION 9. Amendment of Sections 2.16, 2.17, 2.18, 2.19 and 2.20 of
the Original Trust Indenture. Sections 2.16, 2.17, 2.18, 2.19 and 2.20 of the
Original Trust Indenture are hereby deleted in their entirety.
SECTION 10. Amendment of Section 3.01 of the Original Trust Indenture.
Section 3.01 of the Original Trust Indenture is hereby amended by deleting "or
18(c)" from the first paragraph thereof.
SECTION 11. Amendment of Section 3.02 of the Original Trust Indenture.
Section 3.02 of the Original Trust Indenture is hereby amended by deleting
"Lessee Operative Documents" from the proviso thereof and inserting in lieu
thereof "Operative Documents".
SECTION 12. Amendment of Section 9.01(a) of the Original Trust
Indenture. The second sentence of Section 9.01(a) of the Original Trust
Indenture is hereby amended by (a) deleting "(or the Indenture Trustee, in the
case of (i) or (ii) below") therefrom and inserting in lieu thereof "or the
Indenture Trustee,", (b) inserting "and" before clause (ii) thereof, and (c)
deleting clause (iii) and the "and" which immediately precedes such clause.
SECTION 13. Amendment of Section 9.01(c) of the Original Trust
Indenture. Section 9.01(c) of the Original Trust Indenture is hereby amended by
(a) inserting "and" immediately prior to clause (ii) thereof and (b) deleting
clause (viii) thereof and the "and" which immediately precedes such clause.
SECTION 14. Amendment of Schedule I to the Original Trust Indenture
and the Secured Certificates Issued Thereunder. Schedule I to the Original Trust
Indenture is hereby amended by deleting such Schedule in its entirety and
replacing it with Schedule I attached hereto. Schedule I to each Secured
Certificate is hereby amended accordingly, and the Indenture Trustee shall
deliver an amended Schedule I to the registered holders of the Secured
Certificates.
SECTION 15. Amendment of Exhibit A to Original Trust Indenture.
Exhibit A to the Original Trust Indenture is hereby amended by deleting such
Exhibit A in its entirety and replacing it with Exhibit A attached hereto.
SECTION 16. Ratification. Except as hereby modified, the Original
Trust Indenture shall continue in full force and effect as originally executed.
From and after the date of this Amendment, each and every reference in the Trust
Indenture, as amended hereby, to "this Agreement", "herein", "hereof" or similar
words or phrases referring to the Trust Indenture or any word or phrase
referring to a section or provision of the Trust Indenture is deemed for all
purposes to be a reference to the Original Trust Indenture or such section or
provision as amended pursuant to this Amendment.
SECTION 17. Miscellaneous. THIS AMENDMENT SHALL IN ALL RESPECTS 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
AMENDMENT IS BEING DELIVERED IN THE STATE OF NEW YORK. This Amendment may be
executed by the parties hereto in separate counterparts (or upon separate
signature pages bound together into one or more counterparts), each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity, except as expressly
provided herein, but solely as Owner Trustee,
Owner Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
STATE STREET BANK AND TRUST
COMPANY,
not in its individual capacity, except as
expressly provided herein, but solely as
Indenture Trustee,
Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
EXHIBIT A TO FIRST
AMENDMENT TO TRUST
INDENTURE AND
SECURITY AGREEMENT
EXHIBIT A TO
TRUST INDENTURE
AND MORTGAGE
TRUST AGREEMENT AND INDENTURE SUPPLEMENT
[NW 1997 H]
This TRUST AGREEMENT AND INDENTURE SUPPLEMENT [NW 1997 H], dated
_______ __, _____ (herein called this "Trust Indenture Supplement") of FIRST
SECURITY BANK, NATIONAL ASSOCIATION, not in its individual capacity, but solely
as Owner Trustee (herein called the "Owner Trustee") under that certain Amended
and Restated Trust Agreement [NW 1997 H] dated as of December 29, 1997 (the
"Trust Agreement"), between the Owner Trustee and the Owner Participant named
therein.
W I T N E S S E T H:
WHEREAS, the TRUST INDENTURE AND SECURITY AGREEMENT [NW
1997 H], dated as of September 25, 1997 (as amended and supplemented to the date
hereof, the "Trust Indenture") between the Owner Trustee and STATE STREET BANK
AND TRUST COMPANY, as Indenture Trustee (the "Indenture Trustee"), provides for
the execution and delivery of a supplement thereto substantially in the form
hereof, which shall particularly describe the Aircraft, and shall specifically
mortgage such Aircraft to the Indenture Trustee; and
WHEREAS, the Trust Indenture relates to the Airframe and Engines
described below, and a counterpart of the Trust Indenture is attached hereto and
made a part hereof and this Trust Indenture Supplement, together with such
counterpart of the Trust Indenture, is being filed for recordation on the date
hereof with the FAA as one document;
NOW, THEREFORE, this Trust Indenture Supplement witnesseth that the
Owner Trustee hereby confirms that the Lien of the Trust Indenture on the Trust
Indenture Estate covers all of Owner Trustee's right, title and interest in and
to the following described property:
A-1
AIRFRAME
One airframe identified as follows:
FAA
Registration Manufacturer's
Manufacturer Model Number Serial Number
------------ ----- ------ -------------
together with all of the Owner Trustee's right, title and interest in and to all
Parts of whatever nature, whether now owned or hereinafter acquired and which
are from time to time incorporated or installed in or attached to said airframe.
AIRCRAFT ENGINES
Four aircraft engines, each such engine having 750 or more rated
take-off horsepower or the equivalent thereof, identified as follows:
Manufacturer Manufacturer's Model Serial Number
------------ -------------------- -------------
together with all of Owner Trustee's right, title and interest in and to all
Parts of whatever nature, whether now owned or hereafter acquired and which are
from time to time incorporated or installed in or attached to any of such
engines.
Together with all of Owner Trustee's right, title and interest in
and to all Parts of whatever nature, which from time to time are included within
the definition of "Airframe" or "Engine", whether now owned or hereafter
acquired, including all substitutions, renewals and replacements of and
additions, improvements, accessions and accumulations to the Airframe and
Engines (other than additions, improvements, accessions and accumulations which
constitute appliances, parts, instruments, appurtenances, accessories,
furnishings or other equipment excluded from the definition of Parts).
As further security for the obligations referred to above and
secured by the Trust Indenture and hereby, the Owner Trustee has granted,
bargained, sold, assigned, transferred, conveyed, mortgaged, pledged and
confirmed, and does hereby grant, bargain, sell, assign, transfer, convey,
mortgage, pledge and confirm, unto the Indenture Trustee, its successors and
assigns, for the security and benefit of the Loan Participants and of the
Certificate Holders, in the trust created by the Trust Indenture, all of the
right, title and interest of the Owner Trustee in, to and under the Lease
Supplement [of even date herewith] covering the property described above.
A-2
Notwithstanding any provision hereof, no Excluded Payment shall
constitute security for any of the aforementioned obligations.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, in trust for the equal and
proportionate benefit and security of the Certificate Holders, except as
provided in Section 2.15 and Article III of the Trust Indenture without any
preference, distinction or priority of any one Secured Certificate over any
other by reason of priority of time of issue, sale, negotiation, date of
maturity thereof or otherwise for any reason whatsoever, and for the uses and
purposes and subject to the terms and provisions set forth in the Trust
Indenture.
This Trust Indenture Supplement shall be construed as supplemental
to the Trust Indenture and shall form a part thereof. The Trust Indenture is
each hereby incorporated by reference herein and is hereby ratified, approved
and confirmed.
This Trust Indenture Supplement is being delivered in the State of
New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft referred to in this Trust Indenture Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee covered by all the terms and conditions of the
Trust Agreement, subject to the pledge and mortgage thereof under the Trust
Indenture.
A-3
IN WITNESS WHEREOF, the Owner Trustee has caused this Trust
Indenture Supplement to be duly executed by one of its officers, thereunto duly
authorized, on the day and year first above written.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity, except as expressly
provided herein, but solely as Owner Trustee,
Owner Trustee
By:
---------------------------------------
Name:
Title:
SCHEDULE I
Principal Amount Interest Rate
---------------- -------------
Series A......... $10,369,450.52 7.068%
Series B......... $3,112,327.96 7.248%
Series C......... $1,967,999.99 7.039%
A-4
Secured Certificates Amortization
SERIES A
Aircraft: N508XJ
Percentage of Principal
Payment Date Amount to be Paid
------------ -----------------
A-2
SERIES B
Aircraft: N508XJ
Percentage of Principal
Payment Date Amount to be Paid
------------ -----------------
A-3
SERIES C
Aircraft: N508XJ
Percentage of Principal
Payment Date Amount to be Paid
------------ -----------------
A-4
ANNEX A [NW 1997 H]
DEFINITIONS
Unless the context otherwise requires, the following terms shall
have the following meanings and shall be equally applicable to both the singular
and the plural forms of the terms herein defined. In the case of any conflict
between the provisions of this Annex A and the provisions of any Operative
Document, the provisions of such Operative Document shall control the
construction of such Operative Document. References to any agreement are deemed
to include such agreement as amended, modified or supplemented from time to
time.
"Acceptance Certificate" has the meaning specified in Section
5(a)(v) of the Participation Agreement.
"Actual Knowledge" shall mean, (i) as it applies to the Owner
Trustee or Indenture Trustee, as the case may be, actual knowledge of a
Responsible Officer in the Trust Office of the Owner Trustee or in the Corporate
Trust Office of the Indenture Trustee, as the case may be, and (ii) as it
applies to the Owner Participant, actual knowledge of a vice president or other
higher officer of the Owner Participant having responsibility for the
transactions contemplated by the Operative Documents.
"Affiliate" means, with respect to any person, any other person
directly or indirectly controlling, controlled by or under common control with
such person. For the purposes of this definition, "control" (including
"controlled by" and "under common control with") shall mean the power, directly
or indirectly, to direct or cause the direction of the management and policies
of such person whether through the ownership of voting securities or by contract
or otherwise.
"Aircraft" means the Airframe to be delivered and leased under the
Lease (or any airframe from time to time substituted for such Airframe pursuant
to Section 10(a) of the Lease) together with the four Engines initially leased
under the Lease (or any engine substituted for either of such Engines pursuant
to the terms of the Lease), whether or not any of such initial or substituted
Engines may from time to time be installed on such initial or substituted
Airframe or may be installed on any other airframe or on any other aircraft.
"Airframe" means: (i) the British Aerospace Avro 146-RJ85A aircraft
(except Engines or engines from time to time installed thereon) specified in the
initial Lease Supplement, which aircraft shall be leased by Lessor to Lessee
under the Lease and under such Lease Supplement, and any aircraft (except
Engines or engines from time to time installed thereon) which may from time to
time be substituted for such aircraft (except Engines or engines from time to
time installed thereon) pursuant to clause (ii) of the first paragraph of
Section 10(a) of the Lease; and (ii) any and all Parts (A) so long as the same
shall be incorporated or installed in or attached to such aircraft (except
Engines or engines from time to time installed thereon), or (B) so long as title
thereto shall remain vested in Lessor in accordance with the terms of Section 8
of the Lease after removal from such aircraft (except
Schedule I-1
Engines or engines from time to time installed thereon); provided, however, that
at such time as an aircraft (except Engines or engines from time to time
installed thereon) shall be deemed part of the property leased under the Lease
in substitution for the Airframe pursuant to the applicable provisions of the
Lease, the replaced Airframe shall cease to be an Airframe under the Lease.
"Amortization Amount" shall mean, with respect to any Principal
Amount Repayment Date, the amount set forth opposite such Date on the
Amortization Schedule.
"Amortization Schedule" shall mean the amortization schedule for the
Secured Certificates delivered pursuant to Section 2.02 of the Trust Indenture.
"Applicable Rate" means as of any date the weighted average of the
interest rates borne by the Secured Certificates then outstanding and, if no
Secured Certificates shall be outstanding, the Base Rate.
"Assignment and Assumption Agreement" means that certain Assignment
and Assumption Agreement [NW 1997 H], dated as of December 29, 1997, between the
Initial Owner Participant and the Owner Participant, as such Assignment and
Assumption Agreement may be amended or supplemented from time to time pursuant
to the applicable provisions thereof.
"Average Life Date" for each Secured Certificate to be redeemed
shall be the date which follows the redemption date by a period equal to the
Remaining Weighted Average Life at the redemption date of such Secured
Certificate. "Remaining Weighted Average Life" of such Secured Certificate, at
the redemption date of such Secured Certificate, shall be the number of days
equal to the quotient obtained by dividing (a) the sum of each of the products
obtained by multiplying (i) the amount of each then remaining installment of
principal, including the payment due on the maturity date of such Secured
Certificate, by (ii) the number of days from and including the redemption date
to but excluding the scheduled payment date of such principal installment; by
(b) the then unpaid principal amount of such Secured Certificate.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended, or any subsequent legislation that amends, supplements or supersedes
such provisions.
"Base Rate" means the rate of interest announced publicly by
Citibank, N.A. in New York, New York from time to time as its base rate.
"Basic Rent" means, for the Basic Term, the rent payable for the
Aircraft pursuant to Section 3(c) of the Lease as adjusted as provided in
Section 3(d) of the Lease but subject always to the provisions of Section
3(d)(v) of the Lease and, for any Renewal Term, Basic Rent determined pursuant
to Section 19 of the Lease.
"Basic Term" has the meaning specified in the Lease.
Schedule I-2
"Beneficial Interest" means the interest of the Owner Participant
(or the Initial Owner Participant, as the case may be) under the Trust
Agreement.
"▇▇▇▇ of Sale" means a full warranty ▇▇▇▇ of sale covering the
Aircraft, executed by Lessee in favor of the Owner Trustee, dated the Delivery
Date, specifically referring to the Airframe and each Engine, which ▇▇▇▇ of Sale
shall contain, among other things, a statement that such ▇▇▇▇ of Sale thereby
conveys to the Owner Trustee good title to the Airframe and each Engine
described in such ▇▇▇▇ of Sale, free and clear of all liens, encumbrances and
rights of others except Liens permitted by clause (v) of Section 6 of the Lease.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in the City of
New York, New York; Boston, Massachusetts; or Minneapolis, Minnesota.
"Cash Equivalents" (i) on or prior to the Delivery Date, shall mean
(a) direct obligations of the United States or obligations fully guaranteed by
the United States, (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively, or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest rating
assigned by such rating organization, (c) investments in negotiable certificates
of deposit, time deposits, banker's acceptances, commercial paper or other
direct obligations of, or obligations guaranteed by, commercial banks organized
under the laws of the United States or of any political subdivision thereof (or
any U.S. branch of a foreign bank) with issuer ratings of at least B/C by
Thomson Bankwatch, having maturities no later than eight months following the
date of such investment, (d) overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, or (e)
overnight repurchase agreements with respect to the securities described in
clause (a) above entered into with an office of a bank or trust company which is
located in the United States or any bank or trust company which is organized
under the laws of the United States or any state thereof and has capital,
surplus and undivided profits aggregating at least $500 million, and (ii) after
the Delivery Date, shall mean the investments specified in Section 22(a) of the
Lease.
"Certificate Closing Date" means September 25, 1997.
"Certificate Holder" shall mean any holder from time to time of one
or more Secured Certificates.
"Certificated Air Carrier" means a Citizen of the United States
holding a carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49, United States Code, for
aircraft capable of carrying ten or more individuals or 6,000 pounds or more of
cargo or that otherwise is certified or registered to the extent required to
fall within the purview of 11 U.S.C. Section 1110 or any analogous successor
provision of the Bankruptcy Code.
"Citizen of the United States" has the meaning specified in Section
40102(a)(15) of Title 49 of the United States Code or any similar legislation of
the United States of America enacted in substitution or replacement therefor.
Schedule I-3
"Civil Reserve Air Fleet Program" means the Civil Reserve Air Fleet
Program currently administered by the United States Air Force Air Mobility
Command pursuant to Executive Order No. 11490, as amended, or any substantially
similar program.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collateral Account" means the deposit account established and
maintained pursuant to Section 2.16 of the Original Trust Indenture.
"Collateral Account Control Agreement" means that certain Collateral
Account Control Agreement [NW 1997 H], dated as of September 25, 1997, among
State Street Bank and Trust Company, the Indenture Trustee and the Owner
Trustee.
"Commitment" means the amount of the Owner Participant's
participation in Lessor's Cost for the Aircraft required to be made available or
paid as provided in Section 1(d) of the Participation Agreement.
"Consent and Agreement" means that certain Consent and Agreement [NW
1997 H], dated as of December 29, 1997, executed by the Manufacturer, as the
same may be amended, modified or supplemented from time to time in accordance
with the applicable provisions thereof.
"Continuous Stay Period" shall have the meaning specified in Section
4.04(a) of the Trust Indenture.
"Contract Rights" means all of Lessee's right, title and interest in
and to Part H and Part J of the Manufacturer Support Agreement, as and to the
extent that the same relate to the warranties with respect to the Aircraft,
including, without limitation, (a) all claims for damages in respect of the
Aircraft arising as a result of any default by the Manufacturer under Part H or
Part J of the Manufacturer Support Agreement, including, without limitation, all
warranty, service life policy and indemnity provisions in Part H and Part J of
the Manufacturer Support Agreement in respect of the Aircraft and all claims
thereunder and (b) any and all rights of Lessee to compel performance of the
terms of Part H and Part J of the Manufacturer Support Agreement in support
thereof.
"Corporate Trust Department" or "Trust Office" means the principal
corporate trust office of the Owner Trustee located at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department, or such other
office at which the Owner Trustee's corporate trust business shall be
administered which the Owner Trustee shall have specified by notice in writing
to Lessee, the Indenture Trustee, the Owner Participant and each Certificate
Holder.
"Corporate Trust Office" shall mean the principal office of the
Indenture Trustee located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department, or such other office
at which the Indenture Trustee's corporate
Schedule I-4
trust business shall be administered which the Indenture Trustee shall have
specified by notice in writing to Lessee, the Owner Trustee, the Loan
Participants and each Certificate Holder.
"Debt" shall mean any liability for borrowed money, or any liability
for the payment of money in connection with any letter of credit transaction, or
other liabilities evidenced or to be evidenced by bonds, debentures, notes or
other similar instruments or for the deferred purchase price of property, goods
or services.
"Debt Portion" means the amount specified as such on Schedule II to
the Participation Agreement.
"Debt Rate" shall mean, with respect to any Series, the rate per
annum specified for such Series under the heading "Interest Rate" in Schedule I
to the Trust Indenture.
"Default" (a) for purposes of the Operative Documents other than the
Trust Indenture, means a Lease Default and (b) for purposes of the Trust
Indenture, means any condition or event that with the giving of notice or the
lapse of time or both would become an Event of Default pursuant to Section 4.02
of the Trust Indenture or Lease Event of Default (excluding Lease Events of
Default relating to Excluded Payments).
"Delivery Date" means the date of the initial Lease Supplement for
the Aircraft, which date shall be the date the Aircraft is leased by Lessor to
Lessee and accepted by Lessee under the Lease.
"Delivery Notice" means notice of the Aircraft's Delivery Date,
given by the Lessee as provided in Section 2 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by Lessee
pursuant to Section 1(e) of the Participation Agreement.
"Depreciation Period" means the period commencing on the Delivery
Date and ending on December 31, 2004, or such earlier date as the Lease may be
terminated in accordance with the provisions thereof.
"Dollars" and "$" means the lawful currency of the United States of
America.
"Eligible Deposit Account" means either (a) a segregated account
with an Eligible Institution or (b) a segregated trust account with a corporate
trust department of a depository institution with corporate trust powers
organized under the laws United States or any state thereof or the District of
Columbia, and whose deposits are insured by the Federal Deposit Insurance
Corporation, provided that such institution also has a combined capital and
surplus of at least $100,000,000 and a rating of A or better from the Thomson
Bank Watch.
"Eligible Institution" means a depository institution organized
under the laws of the United States or any one of the states thereof, or the
District of Columbia, or any domestic branch of a foreign bank, which in any
case at all times (a) has either (x) a long-term unsecured debt rating of Aa2 by
Moody's or (y) a short-term certificate of deposit rating of P-1
Schedule I-5
by Moody's, (b) has either (x) a long-term unsecured debt rating of at least AA
by S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
"Enforcement Date" shall have meaning specified in Section 4.03 of
the Trust Indenture.
"Engine" means (i) each of the four AlliedSignal LF507 type engines
listed by manufacturer's serial number in the initial Lease Supplement, whether
or not from time to time thereafter installed on the Airframe or installed on
any other airframe or on any other aircraft; and (ii) any engine which may from
time to time be substituted, pursuant to the terms of the Lease, for either of
such four engines, together in each case with any and all Parts incorporated or
installed in or attached thereto or any and all Parts removed therefrom so long
as title thereto shall remain vested in Lessor in accordance with the terms of
Section 8 of the Lease after removal from such Engine; provided, however, that
at such time as an engine shall be deemed part of the property leased under the
Lease in substitution for an Engine pursuant to the applicable provisions of the
Lease, the replaced Engine shall cease to be an Engine hereunder. The term
"Engines" means, as of any date of determination, all Engines then leased under
the Lease.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of the Participation Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"Event of Default" (a) for purposes of the Trust Indenture, has the
meaning specified in Section 4.02 of the Trust Indenture and (b) for purposes of
the Operative Documents other than the Trust Indenture, means a Lease Event of
Default.
"Event of Loss" with respect to the Aircraft, Airframe or any Engine
means any of the following events with respect to such property: (i) the loss of
such property or of the use thereof due to the destruction of or damage to such
property which renders repair uneconomic or which renders such property
permanently unfit for normal use by Lessee (or any Sublessee) for any reason
whatsoever; (ii) any damage to such property which results in an insurance
settlement with respect to such property on the basis of a total loss, or a
constructive or compromised total loss; (iii) the theft or disappearance of such
property, or the confiscation, condemnation, or seizure of, or requisition of
title to, or use of, such property (other than a requisition for use by the
United States Government or any other government of registry of the Aircraft, or
any agency or instrumentality of any thereof) which in the case of any event
referred to in this clause (iii) (other than a requisition of title) shall have
resulted in the loss of possession of such property by Lessee (or any Sublessee)
for a period in excess of 180 consecutive days or, if earlier, until the end of
the Term, or, in the case of a requisition of title, the requisition of title
shall not have been reversed within 90 days from the date of such requisition of
title or, if earlier, at the end of the Term; (iv) as a result of any law, rule,
Schedule I-6
regulation, order or other action by the Federal Aviation Administration or
other governmental body of the government of registry of the Aircraft having
jurisdiction, the use of such property in the normal course of the business of
air transportation shall have been prohibited for a period of 180 consecutive
days, unless Lessee (or any Sublessee), prior to the expiration of such 180 day
period, shall have undertaken and shall be diligently carrying forward all steps
which are necessary or desirable to permit the normal use of such property by
Lessee (or such Sublessee), but in any event if such use shall have been
prohibited for a period of two consecutive years, provided that no Event of Loss
shall be deemed to have occurred if such prohibition has been applicable to the
entire U.S. registered fleet of British Aerospace Avro 146-RJ85A aircraft of
Lessee (or any Sublessee) and Lessee (or a Sublessee), prior to the expiration
of such two-year period, shall have conformed at least one such aircraft in its
fleet to the requirements of any such law, rule, regulation, order or other
action and commenced regular commercial use of the same in such jurisdiction and
shall be diligently carrying forward, in a manner which does not discriminate
against the Aircraft in so conforming the Aircraft, all steps which are
necessary or desirable to permit the normal use of the Aircraft by Lessee (or
such Sublessee), provided, further that, notwithstanding any of the foregoing,
such prohibition shall constitute an Event of Loss if such use shall have been
prohibited for a period of three consecutive years or such use shall be
prohibited at the expiration of the Term; (v) the requisition for use by the
United States Government or any other government of registry of the Aircraft or
any instrumentality or agency of any thereof, which shall have occurred during
the Basic Term (or any Renewal Term) and shall have continued for thirty (30)
days beyond the Term, provided, however, that no Event of Loss pursuant to this
clause (v) shall exist if Lessor shall have furnished to Lessee the written
notice specified in Section 10(d) of the Lease; and (vi) any divestiture of
title to or interest in an Engine treated as an Event of Loss pursuant to
Section 7(b) of the Lease. An Event of Loss with respect to the Aircraft shall
be deemed to have occurred if an Event of Loss occurs with respect to the
Airframe.
"Excess Amount" shall have the meaning specified in Section 2.03(b)
of the Trust Indenture.
"Excluded Payments" shall mean (i) indemnity payments paid or
payable by Lessee to or in respect of the Owner Participant or the Owner Trustee
in its individual capacity, their respective Affiliates, successors and
permitted assigns and their directors, officers, employees, servants and agents
(collectively, the "Owner Indemnitees") pursuant to Sections 7(b), 7(c), 16 and
17 of the Participation Agreement, (ii) proceeds of public liability insurance
in respect of the Aircraft payable as a result of insurance claims made, or
losses suffered, by the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by any of the Owner Indemnitees, (iii)
proceeds of insurance maintained with respect to the Aircraft by the Owner
Participant (whether directly or through the Owner Trustee) or any other Owner
Indemnitee and permitted under Section 11(e) of the Lease, (iv) all payments
required to be made under the Tax Indemnity Agreement by Lessee and all payments
of Supplemental Rent by Lessee in respect of any amounts payable under the Tax
Indemnity Agreement, (v) fees payable to the Owner Trustee or the Indenture
Trustee pursuant to the last sentence of Section 7(c) of the Participation
Agreement, (vi) provided that the Secured Certificates shall have been duly
assumed by Lessee pursuant to Section 2.13 of the
Schedule I-7
Trust Indenture, the amounts payable to the Owner Trustee pursuant to the third
sentence of Section 19(d) of the Lease plus all reasonable expenses incurred by
the Owner Trustee and the Owner Participant in connection with such assumption,
as applicable, (vii) any payment of the foregoing under the Guarantee, (viii)
interest accrued on any of the above, and (ix) any right to enforce the payment
of any amount described in clauses (i) through (viii) above and the right to
declare an Event of Default in respect of any of the foregoing amounts.
"Expenses" has the meaning specified in Section 7(c) of the
Participation Agreement.
"FAA ▇▇▇▇ of Sale" means a ▇▇▇▇ of sale for the Aircraft on AC Form
8050-2 or such other form as may be approved by the Federal Aviation
Administration on the Delivery Date for the Aircraft, executed by Lessee in
favor of the Owner Trustee and dated the Delivery Date.
"Federal Aviation Act" means that portion of the United States Code
comprising those provisions formerly referred to as the Federal Aviation Act of
1958, as amended, or any subsequent legislation that amends, supplements or
supersedes such provisions.
"Federal Aviation Administration" and "FAA" mean the United States
Federal Aviation Administration and any agency or instrumentality of the United
States government succeeding to their functions.
"First Amendment to Trust Indenture" means that certain First
Amendment to Trust Indenture and Security Agreement [NW 1997 H], dated as of
December 29, 1997, between Lessor and the Indenture Trustee, amending the
Original Trust Indenture.
"Foreign Air Carrier" means any air carrier which is not a U.S. Air
Carrier and which performs maintenance, preventative maintenance and inspections
for the Aircraft, Airframe and/or any Engine or engine to standards which are
approved by, or which are substantially equivalent to those required by, the
Federal Aviation Administration, the Civil Aviation Authority of the United
Kingdom, the Direction Generale de l'Aviation Civile of the French Republic, the
Luftfahrt Bundesamt of the Federal Republic of Germany, the Rijflauchtraatdienst
of the Kingdom of the Netherlands, the Ministry of Transportation of Japan or
the Federal Ministry of Transport of Canada (and any agency or instrumentality
of the applicable government succeeding to the functions of any of the foregoing
entities).
"Government Entity" means (a) any federal, state, provincial or
similar government, and any body, board, department, commission, court,
tribunal, authority, agency or other instrumentality of any such government or
otherwise exercising any executive, legislative, judicial, administrative or
regulatory functions of such government or (b) any other government entity
having jurisdiction over any matter contemplated by the Operative Documents or
relating to the observance or performance of the obligations of any of the
parties to the Operative Documents.
Schedule I-8
"Guarantee" means that certain Amended and Restated ▇▇▇▇▇▇▇▇▇ [▇▇
▇▇▇▇ H], dated as of December 29, 1997, made by the Guarantor, as such Guarantee
may be amended or supplemented from time to time pursuant to the applicable
provisions thereof, which Guarantee amended and restated in its entirety the
Original Guarantee.
"Guarantor" means Northwest Airlines Corporation, a Delaware
corporation.
"Indemnitee" means (i) the Owner Trustee, in its individual capacity
and as trustee under the Trust Agreement, (ii) the Indenture Trustee, (iii) the
Owner Participant, (iv) the Trust Estate, (v) the Loan Participants and each
other Certificate Holder, (vi) the Subordination Agent, (vii) the Liquidity
Provider, (viii) the Pass Through Trustees, (ix) each Affiliate of the Persons
described in clauses (i) through (iv), inclusive, (x) each Affiliate of the
Persons described in clauses (vi), (vii) and (viii) inclusive, (xi) the
respective directors, officers, employees, agents and servants of each of the
Persons described in clauses (i) through (viii), inclusive, (xii) the successors
and permitted assigns of the Persons described in clauses (i) through (iv),
inclusive, and (xiii) the successors and permitted assigns of the Persons
described in clauses (v), (vi), (vii) and (viii) inclusive.
"Indenture Agreements" means the Participation Agreement, the Lease,
the Purchase Agreement, the Purchase Agreement Assignment, the Consent and
Agreement, the Guarantee, the Bills of Sale and any other contract, agreement or
instrument from time to time assigned or pledged under the Trust Indenture.
"Indenture Default" means any event or condition that with the
giving of notice or the lapse of time or both would become an Indenture Event of
Default or Lease Event of Default (excluding Lease Events of Default related to
Excluded Payments).
"Indenture Event of Default" shall mean an "Event of Default" as
defined in clause (a) of the definition of "Event of Default".
"Indenture Trustee" means the Indenture Trustee under the Trust
Indenture, and any entity which may from time to time be acting as indenture
trustee under the Trust Indenture.
"Indenture Trustee Documents" means the Participation Agreement and
the Trust Indenture.
"Indenture Trustee Event" means either (i) the Secured Certificates
shall have become due and payable pursuant to Section 4.04(b) of the Trust
Indenture or (ii) the Indenture Trustee has taken action or notified Owner
Trustee that it intends to take action to foreclose the Lien of the Trust
Indenture or otherwise commence the exercise of any significant remedy under the
Trust Indenture or the Lease.
"Indenture Trustee's Liens" means any Lien which arises as a result
of (A) claims against the Indenture Trustee not related to its interest in the
Aircraft or the administration of the Trust Estate pursuant to the Trust
Indenture, (B) acts of the Indenture
Schedule I-9
Trustee not permitted by, or failure of the Indenture Trustee to take any action
required by, the Operative Documents to the extent such acts arise or such
failure arises from or constitutes gross negligence or willful misconduct, (C)
claims against the Indenture Trustee relating to Taxes or Expenses which are
excluded from the indemnification provided by Section 7 of the Participation
Agreement pursuant to said Section 7, or (D) claims against the Indenture
Trustee arising out of the transfer by the Indenture Trustee of all or any
portion of its interest in the Aircraft, the Trust Estate, the Trust Indenture
Estate or the Operative Documents other than a transfer of the Aircraft pursuant
to Section 9, 10 or 19 of the Lease or Article IV or V of the Trust Indenture,
or a transfer of the Aircraft pursuant to Section 15 of the Lease while an Event
of Default is continuing and prior to the time that the Indenture Trustee has
received all amounts due pursuant to the Trust Indenture.
"Initial Owner Participant" means Northwest Airlines, Inc., a
Minnesota corporation.
"Intercreditor Agreement" means that certain Intercreditor Agreement
among the Pass Through Trustees, the Liquidity Provider and the Subordination
Agent.
"Law" shall mean (a) any constitution, treaty, statute, law,
regulation, order, rule or directive of any Government Entity, and (b) any
judicial or administrative interpretation or application of, or decision under,
any of the foregoing.
"Lease Agreement", "the Lease Agreement", "the Lease", or "the
Agreement", mean the Lease Agreement [NW 1997 H], dated as of December 29, 1997,
as originally executed or as modified, amended or supplemented pursuant to the
applicable provisions thereof and in accordance with the Trust Agreement and the
Trust Indenture, including, without limitation, supplementation thereof by one
or more Lease Supplements entered into pursuant to the applicable provisions
thereof.
"Lease Default" shall mean any event which with the giving of notice
or the lapse of time or both would become a Lease Event of Default.
"Lease Event of Default" has the meaning which the term "Event of
Default" has in the Lease.
"Lease Period Date" means January 2, 1998 and each January 2 and
July 2 thereafter, to and including the last such date in the Term.
"Lease Supplement" means a Lease Supplement, substantially in the
form of Exhibit A to the Lease, to be entered into between Lessor and Lessee on
the Delivery Date for the purpose of leasing the Aircraft under and pursuant to
the terms of the Lease Agreement, and any subsequent Lease Supplement entered
into in accordance with the terms thereof.
"Lessee" shall mean Northwest Airlines, Inc., a Minnesota
corporation.
Schedule I-10
"Lessee Documents" means the Participation Agreement, the Lease, the
Lease Supplement covering the Aircraft, the Purchase Agreement (insofar as it
relates to the Aircraft), the FAA ▇▇▇▇ of Sale, the ▇▇▇▇ of Sale, the Purchase
Agreement Assignment, the Assignment and Assumption Agreement and the Tax
Indemnity Agreement.
"Lessee Person" means Lessee, any sublessee, or any other user or
Person in possession of the Aircraft, any Engine, or any Part, and any Affiliate
of any of the foregoing, but shall not include the Owner Participant, the Owner
Trustee or any of their successors or assigns or any other Person claiming from
or through the Owner Participant or the Owner Trustee (except pursuant to the
Lease).
"Lessor Liens" has the meaning specified in the Lease.
"Lessor's Cost" for the Aircraft means the amount denominated as
such in Exhibit B to the Lease.
"Lien" means any mortgage, pledge, lien, charge, claim, encumbrance,
lease, sublease, sub-sublease or security interest.
"Liquid Collateral" means all amounts and securities deposited from
time to time in the Collateral Account and all of the products, investments,
earnings and proceeds of the foregoing, including, but not limited to, all
proceeds of the investment or conversion thereof, voluntary or involuntary, into
cash, Cash Equivalents or other property, all rights to payment of any and every
kind, and other forms of obligations, and instruments and other property which
at any time constitute all or part or are included in the proceeds of any of the
foregoing.
"Liquidity Facilities" means the three Revolving Credit Agreements
between the Subordination Agent, as borrower, and the Liquidity Provider, and
any replacement thereof, in each case as the same may be amended, modified or
supplemented.
"Liquidity Provider" means Royal Bank of Canada, as Class A
Liquidity Provider, Class B Liquidity Provider and Class C Liquidity Provider
under the Liquidity Facilities, or any successor thereto.
"Loan Participant" means each Purchaser and its respective
successors and registered assigns, including any Certificate Holder.
"Loan Participant Liens" means any Lien which arises from acts or
claims against any Loan Participant not related to the transactions contemplated
by the Operative Documents.
"Loss Payment Date" has the meaning specified in Section 10(a) of
the Lease.
"Losses" has the meaning specified in Section 18 of the
Participation Agreement.
Schedule I-11
"Majority in Interest of Certificate Holders" as of a particular
date of determination shall mean the holders of more than a majority in
aggregate unpaid Principal Amount of all Secured Certificates outstanding as of
such date (excluding any Secured Certificates held by the Owner Trustee or the
Owner Participant or any interests of the Owner Participant therein by reason of
subrogation pursuant to Section 4.03 of the Trust Indenture (unless all Secured
Certificates then outstanding shall be held by the Owner Trustee or the Owner
Participant) or Lessee or any affiliate of any thereof).
"Make-Whole Amount" means, with respect to any Secured Certificate,
the amount (as determined by an independent investment banker selected by Lessee
and reasonably acceptable to the Indenture Trustee and the Owner Participant) by
which (a) the present value of the remaining scheduled payments of principal and
interest from the redemption date to maturity of such Secured Certificate
computed by discounting each such payment on a semiannual basis from its
respective Payment Date (assuming a 360-day year of twelve 30-day months) using
a discount rate equal to the Treasury Yield exceeds (b) the outstanding
principal amount of such Secured Certificate plus accrued interest. For purposes
of determining the Make-Whole Amount, "Treasury Yield" at the time of
determination with respect to any Secured Certificate means the interest rate
(expressed as a semiannual equivalent and as a decimal and, in the case of
United States Treasury bills, converted to a bond equivalent yield) determined
to be the per annum rate equal to the semiannual yield to maturity for United
States Treasury securities maturing on the Average Life Date of such Secured
Certificate and trading in the public securities market either as determined by
interpolation between the most recent weekly average yield to maturity for two
series of United States Treasury securities, trading in the public securities
markets, (A) one maturing as close as possible to, but earlier than, the Average
Life Date of such Secured Certificate and (B) the other maturing as close as
possible to, but later than, the Average Life Date of such Secured Certificate,
in each case as published in the most recent H.15(519) or, if a weekly average
yield to maturity for United States Treasury securities maturing on the Average
Life Date of such Secured Certificate is reported on the most recent H.15(519),
such weekly average yield to maturity as published in such H.15(519).
"H.15(519)" means the weekly statistical release designated as such, or any
successor publication, published by the Board of Governors of the Federal
Reserve System. The date of determination of a Make-Whole Amount shall be the
third Business Day prior to the applicable redemption date and the "most recent
H.15(519)" means the H.15(519) published prior to the close of business on the
third Business Day prior to the applicable redemption date.
"Make-Whole Termination Date" with respect to the Series A Secured
Certificates, means July 2, 2010; with respect to the Series B Secured
Certificates, means July 2, 2008; and with respect to the Series C Secured
Certificates, means October 2, 2003.
"Mandatory Document Terms" means the terms set forth on Schedule V
to the Original Participation Agreement.
"Mandatory Economic Terms" means the terms set forth on Schedule IV
to the Original Participation Agreement.
Schedule I-12
"Manufacturer" means British Aerospace (Operations) Limited, a
limited company incorporated under the laws of England and Wales, and its
successors and assigns.
"Manufacturer Delivery" means the date the Aircraft was delivered by
the Manufacturer to Lessee, and accepted by Lessee, pursuant to the Purchase
Agreement.
"Manufacturer Documents" means the Purchase Agreement, the Residual
Agreement and the Consent and Agreement.
"Manufacturer Support Agreement" means that certain Manufacturer
Support Agreement, dated February 5, 1997, between the Manufacturer and Lessee.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgaged Property" shall have the meaning specified in Section
3.03 of the Trust Indenture.
"Net Economic Return" shall have the meaning ascribed to such term
in paragraph 2 of Exhibit E to the Lease.
"Net Present Value of Rents" shall have the meaning ascribed to such
term in the Lease.
"Operative Documents" and "Operative Document" means each of the
Participation Agreement, the Lease, the Trust Indenture, the Trust Agreement,
the Acceptance Certificate, the Tax Indemnity Agreement, the Lease Supplement
covering the Aircraft, the Trust Supplement covering the Aircraft, the Secured
Certificates, the ▇▇▇▇ of Sale, the FAA ▇▇▇▇ of Sale, the Purchase Agreement
(insofar as it relates to the Aircraft), the Guarantee, the Residual Agreement,
the Collateral Account Control Agreement, the Assignment and Assumption
Agreement, the Owner Participant Guaranty, the Purchase Agreement Assignment and
the Consent and Agreement.
"Original Guarantee" means that certain Guarantee [NW 1997 H], dated
as of the Certificate Closing Date, made by the Guarantor, as such Guarantee may
have been amended or supplemented from time to time pursuant to the applicable
provisions thereof prior to the Delivery Date.
"Original Participation Agreement" means that certain Participation
Agreement [NW 1997 H], dated as of the Certificate Closing Date, among Lessee,
the Guarantor, the Purchasers, the Indenture Trustee, the Subordination Agent,
the Initial Owner Participant and Owner Trustee, as such Participation Agreement
was amended or supplemented from time to time prior to the Delivery Date
pursuant to the applicable provisions thereof.
"Original Trust Agreement" means that certain Trust Agreement [NW
1997 H], dated as of the Certificate Closing Date, between the Initial Owner
Participant and First Security Bank, National Association, in its individual
capacity, as originally executed or as
Schedule I-13
modified, amended or supplemented prior to the Delivery Date pursuant to the
applicable provisions thereof.
"Original Trust Indenture" means that certain Trust Indenture and
Security Agreement [NW 1997 H], dated as of the Certificate Closing Date,
between Lessor and the Indenture Trustee, as originally executed or as modified,
amended or supplemented in accordance with its terms but prior to being amended
by the First Amendment to Trust Indenture.
"Overall Transaction" means all the transactions contemplated by the
Operative Documents.
"Owner Indemnitee" shall have the meaning specified in the
definition of Excluded Payments herein.
"Owner Participant" shall mean the corporation executing the
Participation Agreement as the Owner Participant, and thereafter any Person to
which such corporation transfers all of its right, title and interest in and to
the Trust Agreement, the Trust Estate and the Participation Agreement, to the
extent permitted by Section 8.01 of the Trust Agreement and Section 8 of the
Participation Agreement.
"Owner Participant Documents" means the Participation Agreement, the
Trust Agreement, the Assignment and Assumption Agreement, the Residual Agreement
and the Tax Indemnity Agreement.
"Owner Participant Guarantor" means the entity executing the Owner
Participant Guaranty as guarantor thereunder.
"Owner Participant Guaranty" means that certain Owner Participant
Guaranty [NW 1997 H], dated as of December 29, 1997, made by the Owner
Participant Guarantor in favor of Lessee, Lessor, the Purchasers, the
Subordination Agent and the Indenture Trustee, as such Owner Participant
Guaranty may be amended or supplemented from time to time pursuant to the
applicable provisions thereof.
"Owner Trustee" means the entity executing the Original
Participation Agreement as Owner Trustee and any entity appointed as successor
Owner Trustee pursuant to Section 9.01 of the Trust Agreement, and references to
a predecessor Owner Trustee in its individual capacity by name in the Operative
Documents shall include such successor Owner Trustee in its individual capacity
from and after such succession.
"Owner Trustee Documents" means the Participation Agreement, the
Trust Agreement, the Trust Supplement covering the Aircraft, the Lease, the
Lease Supplement covering the Aircraft, the Purchase Agreement Assignment, the
Residual Agreement, the Trust Indenture and the Secured Certificates.
Schedule I-14
"Participants" shall mean and include the Loan Participants and the
Owner Participant.
"Participation Agreement" means that certain Amended and Restated
Participation Agreement [NW 1997 H], dated as of December 29, 1997, among
Lessee, the Guarantor, the Owner Participant, the Purchasers, the Indenture
Trustee, the Subordination Agent and the Owner Trustee, as such Participation
Agreement may be amended or supplemented from time to time pursuant to the
applicable provisions thereof, which Participation Agreement amended and
restated in its entirety the Original Participation Agreement.
"Parties" means the Owner Trustee, the Indenture Trustee and the
Participants.
"Parts" means all appliances, parts, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than (a)
complete Engines or engines, (b) any items leased by Lessee from a third party
(other than Lessor) and (c) cargo containers) which may from time to time be
incorporated or installed in or attached to the Airframe or any Engine or so
long as title thereto shall remain vested in Lessor in accordance with Section 8
of the Lease after removal therefrom.
"Pass Through Certificates" means the pass through certificates to
be issued by the Pass Through Trustee in connection with the Overall
Transaction.
"Pass Through Trust Agreement" means the pass through trust
agreement and each of the three separate pass through trust supplements referred
to on Schedule I to the Participation Agreement.
"Pass Through Trustee" means State Street Bank and Trust Company, a
Massachusetts trust company, in its capacity as trustee under each Pass Through
Trust Agreement, and each other person that may from time to time be acting as
successor trustee under any such Pass Through Trust Agreement.
"Past Due Rate" (A) with respect to the Secured Certificates, means
the rate per annum equal to 2% over the Debt Rate as in effect from time to time
and (B) for purposes of the Lease, means (i) with respect to the portion of any
payment of Rent that may be required by the Trust Indenture to be paid by the
Indenture Trustee to the Loan Participants, or the holders of any outstanding
Secured Certificates, the rate per annum equal to 2% over the Debt Rate as in
effect from time to time and (ii) with respect to the remaining portion of any
payment of Rent (and the entire amount of any payment of Rent after the
satisfaction and discharge of the Trust Indenture), a rate per annum equal to 1%
over the Base Rate.
"Payment Date" shall mean each January 2 and July 2, commencing on
January 2, 1998 (or, if any such day is not a Business Day, the immediately
succeeding Business Day) until the Secured Certificates have been paid in full.
Schedule I-15
"Permitted Lien" means any Lien referred to in clauses (i) through
(viii) of Section 6 of the Lease.
"Permitted Sublessee" means any entity domiciled in a country listed
in Exhibit F to the Lease.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal Amount" with respect to a Secured Certificate means the
stated original principal amount of such Secured Certificate and, with respect
to all Secured Certificates, means the aggregate stated original principal
amounts of all Secured Certificates.
"Principal Amount Repayment Date" shall mean each Payment Date on
which any portion of the Principal Amount is due and payable in accordance with
the Amortization Schedule.
"Purchase Agreement" means that certain Sale and Purchase Agreement,
dated as of February 5, 1997, between the Manufacturer and Lessee relating to
the purchase by Lessee of the Aircraft (including the Manufacturer Support
Agreement), as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the foregoing relates to
the Aircraft.
"Purchase Agreement Assignment" means that certain Purchase
Agreement Assignment [NW 1997 H], dated as of December 29, 1997, between Lessee
and Lessor, as the same may be amended, supplemented or modified from time to
time, with a form of Consent and Agreement to be executed by the Manufacturer
attached thereto.
"Purchasers" means the Pass Through Trustees under each Pass Through
Trust Agreement.
"QIB" shall have the meaning specified in Section 2.08 of the Trust
Indenture.
"Rating Agencies" means collectively, at any time, each nationally
recognized agency which shall have been requested to rate the Pass Through
Certificates and which shall then be rating the Pass Through Certificates. The
initial Rating Agencies shall be S&P and ▇▇▇▇▇'▇.
"Rating Agency Confirmation" means, with respect to any Operative
Document that is to be modified in any material respect on the Delivery Date, a
written confirmation from each of the Rating Agencies that the use of such
Operative Document with such modifications would not result in (i) a reduction
of the rating for any class of Pass Through Certificates below the then current
rating for such class of Pass Through Certificates or (ii) a withdrawal or
suspension of the rating of any class of Pass Through Certificates.
Schedule I-16
"Related Indemnitee Group" means, with respect to any Indemnitee,
any officer, director, servant, employee, agent or Affiliate thereof.
"Renewal Term" has the meaning specified in the Lease.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Replacement Airframe" shall mean any airframe substituted for the
Airframe pursuant to Section 5.06 of the Trust Indenture.
"Replacement Engine" shall mean any engine substituted for an Engine
pursuant to Section 5.06 of the Trust Indenture.
"Residual Agreement" means that certain Agreement (N508XJ), dated as
of December 29, 1997, among the Manufacturer, the Owner Participant and the
Owner Trustee.
"Responsible Officer" means with respect to the Owner Trustee, a
responsible officer in the Trust Office of the Owner Trustee (including, without
limitation, any authorized officer in the Trust Office of the Owner Trustee),
and with respect to the Indenture Trustee, a responsible officer in the
Corporate Trust Office of the Indenture Trustee.
"S&P" means Standard & Poor's Ratings Group.
"Scheduled Delivery Date" means the delivery date specified in the
Delivery Notice pursuant to Section 2 of the Participation Agreement.
"Section 1110 Period" shall have the meaning specified in Section
4.04(a) of the Trust Indenture.
"Secured Certificates" shall mean and include any Secured
Certificates issued under the Trust Indenture, and issued in exchange therefor
or replacement thereof.
"Secured Obligations" shall have the meaning specified in Section
2.06 of the Trust Indenture.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Senior Holder" shall have the meaning specified in Section 2.15(c)
of the Trust Indenture.
"Series A" or "Series A Secured Certificates" means Secured
Certificates issued and designated as "Series A" under the Trust Indenture, in
the Principal Amount and maturities and bearing interest as specified in
Schedule I to the Trust Indenture under the heading "Series A."
"Series B" or "Series B Secured Certificates" means Secured
Certificates issued and designated as "Series B" under the Trust Indenture, in
the Principal Amount and maturities
Schedule I-17
and bearing interest as specified in Schedule I to the Trust Indenture under the
heading "Series B."
"Series C" or "Series C Secured Certificates" means Secured
Certificates issued and designated as "Series C" under the Trust Indenture, in
the Principal Amount and maturities and bearing interest as specified in
Schedule I to the Trust Indenture under the heading "Series C."
"Special Purchase Price" means the amount denominated as such in
Exhibit B to the Lease.
"State Street" means State Street Bank and Trust Company, a
Massachusetts trust company, not in its capacity as Indenture Trustee under the
Trust Indenture, but in its individual capacity.
"Stipulated Loss Value" with respect to the Aircraft as of any date
through and including the last day of the Basic Term, shall mean, but subject
always to the provisions of Section 3(d)(v) of the Lease, the amount determined
by multiplying Lessor's Cost for the Aircraft by the percentage specified in
Exhibit C to the Lease opposite the Stipulated Loss Value Date with respect to
which the amount is determined (as such Exhibit C may be adjusted from time to
time as provided in Section 3(d) of the Lease and in Section 7 of the Tax
Indemnity Agreement). "Stipulated Loss Value" as of any date after the last day
of the Basic Term shall be the amount determined as provided in Section 19(a) of
the Lease.
"Sublease" means any sublease permitted by the terms of Section
7(b)(x) of the Lease.
"Sublessee" means any Person for so long, but only so long, as such
Person is in possession of the Airframe and/or any Engine pursuant to the terms
of a Sublease which is then in effect pursuant to Section 7(b)(x) of the Lease.
"Subordination Agent" means State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, as
subordination agent under the Intercreditor Agreement, or any successor thereto.
"Successor Residual Agreement" has the meaning specified in the
Lease.
"Supplemental Rent" means, without duplication, (a) all amounts,
liabilities, indemnities and obligations (other than Basic Rent) which Lessee
assumes or agrees to pay under any Lessee Document to or on behalf of Lessor or
any other Person, (b) amounts payable by Lessor pursuant to clause (b) of the
third paragraph of Section 2.02 of the Trust Indenture, (c) Lessor's pro rata
share of all compensation and reimbursement of expenses, disbursements and
advances payable by Lessee under the Pass Through Trust Agreements, and (d)
Lessor's pro rata share of all compensation and reimbursement of expenses and
disbursements payable to the Subordination Agent under the Intercreditor
Agreement except with respect to any income or franchise taxes incurred by the
Subordination Agent in
Schedule I-18
connection with the transactions contemplated by the Intercreditor Agreement. As
used herein, "Lessor's pro rata share" means as of any time a fraction, the
numerator of which is the principal balance then outstanding of Secured
Certificates and the denominator of which is the aggregate principal balance
then outstanding of all "Equipment Notes" (as such term is defined in the
Intercreditor Agreement).
"Tax Indemnitee" means (i) the Owner Participant, the Owner Trustee,
in its individual capacity and as trustee under the Trust Agreement, the Trust
Estate, the Indenture Trustee, (ii) the respective Affiliates, successors and
permitted assigns of each of the entities described in the preceding clause (i),
and (iii) the Trust Indenture Estate.
"Tax Indemnity Agreement" means that certain Tax Indemnity Agreement
[NW 1997 H], dated as of December 29, 1997, between the Owner Participant and
Lessee, as originally executed or as modified, amended or supplemented pursuant
to the applicable provisions thereof.
"Taxes" means any and all fees (including, without limitation,
license, recording, documentation and registration fees), taxes (including,
without limitation, income, gross receipts, sales, rental, use, turnover, value
added, property (tangible and intangible), excise and stamp taxes), license,
levies, imposts, duties, charges, assessments or withholdings of any nature
whatsoever, together with any and all penalties, fines, additions to tax and
interest thereon (each, individually a "Tax").
"Term" means the Basic Term and, if actually entered into, any
Renewal Term.
"Termination Date" has the meaning set forth in Section 9(a) of the
Lease.
"Termination Value" with respect to the Aircraft as of any date
through and including the last day of the Basic Term, means, but subject always
to the provisions of Section 3(d)(v) of the Lease, the amount determined by
multiplying Lessor's Cost for the Aircraft by the percentage specified in
Exhibit D to the Lease opposite the Termination Date with respect to which the
amount is determined (as such Exhibit D may be adjusted from time to time as
provided in Section 3(d) of the Lease and in Section 7 of the Tax Indemnity
Agreement).
"Transaction Expenses" means: all of the reasonable out-of-pocket
costs, fees and expenses incurred by the Owner Trustee, the Owner Participant,
the Pass Through Trustee, the Subordination Agent and the Indenture Trustee in
connection with the transactions contemplated by the Participation Agreement,
the other Operative Documents, the Pass Through Trust Agreements, the
Intercreditor Agreement, the Liquidity Facilities and the Underwriting Agreement
(except, in each case, as otherwise provided therein) including, without
limitation:
(1) the reasonable and actual fees, expenses and disbursements
of (A) ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Pass Through Trustee
and the Indenture Trustee, (B) Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the
Owner Trustee, (C) Shearman
Schedule I-19
& Sterling, special counsel for the Underwriters, and (D) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.,
special counsel in Oklahoma City, Oklahoma;
(2) the initial fees and reasonable and actual disbursements
of the Owner Trustee under the Trust Agreement;
(3) the initial fee and reasonable and actual disbursements of
the Indenture Trustee under the Trust Indenture;
(4) the initial fees and expenses of the Liquidity Provider,
the Pass Through Trustee and the Subordination Agent;
(5) underwriting fees and commissions;
(6) the fees and expenses with respect to the appraisals of
the Aircraft;
(7) the reasonable fees, expenses and disbursements of Thelen,
Marrin, ▇▇▇▇▇▇▇ & Bridges LLP, special counsel to the Owner Participant and the
Owner Participant Guarantor, such fees not to exceed the amount previously
agreed to by the Owner Participant and Lessee;
(8) the reasonable fees, expenses and disbursements of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, special counsel for
Lessee;
(9) the costs of filing and recording documents with the FAA
and filing Uniform Commercial Code statements in the United States;
(10) the reasonable fees, expenses and disbursements of
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the Liquidity
Provider;
(11) the reasonable fees, expenses and disbursements of
Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, special counsel to the Manufacturer; and
(12) the equity placement fee and reasonable disbursements of
▇▇▇▇▇▇▇ and ▇▇▇▇▇ Financial Corporation.
"Transactions" means the transactions contemplated by the
Participation Agreement and the other Operative Documents.
"Trust Agreement" means that certain Amended and Restated Trust
Agreement [NW 1997 H], dated as of December 29, 1997, between the Owner
Participant and First Security Bank, National Association, in its individual
capacity, as originally executed or as modified, amended or supplemented
pursuant to the applicable provisions thereof, including, without limitation,
supplementation thereof by one or more Trust Supplements entered into pursuant
to the applicable provisions thereof, which Trust Agreement amended and restated
in its entirety the Original Trust Agreement and continued the trusts thereby
created.
Schedule I-20
"Trust Agreement and Indenture Supplement" or "Trust Supplement"
means a supplement to the Trust Agreement and to the Trust Indenture, in
substantially the form of Exhibit A to the Trust Indenture, which shall
particularly describe the Aircraft, and any Replacement Airframe and Replacement
Engine included in the property of the Owner Trustee covered by the Trust
Agreement. The initial Trust Agreement and Indenture Supplement shall be dated
the Delivery Date.
"Trust Estate" means the Trust Estate as that term is defined in the
Trust Agreement.
"Trust Indenture", "the Trust Indenture", "Indenture", and "the
Indenture" shall mean the Original Trust Indenture, as originally executed or as
modified, amended or supplemented in accordance with its terms (including,
without limitation, by the First Amendment to Trust Indenture).
"Trust Indenture Estate" shall mean all estate, right, title and
interest of the Indenture Trustee in and to the properties referred to in the
Granting Clause of the Trust Indenture, excluding Excluded Payments.
"Underwriting Agreement" means that certain Underwriting Agreement,
dated as of September 16, 1997, among Lessee, the Guarantor and the underwriters
named therein.
"United States" or "U.S." means the United States of America.
"U.S. Air Carrier" means any Certificated Air Carrier as to which
there is in force an air carrier operating certificate issued pursuant to Part
121 of the regulations under the Federal Aviation Act, or which may operate as
an air carrier by certification or otherwise under any successor or substitute
provisions therefor or in the absence thereof.
"Wet Lease" means any arrangement whereby the Lessee (or any
Sublessee) agrees to furnish the Airframe and Engines or engines installed
thereon to a third party pursuant to which such Airframe and Engines or engines
(i) shall be operated solely by regular employees of Lessee (or any Sublessee)
possessing all current certificates and licenses that would be required under
the Federal Aviation Act or, if the Aircraft is not registered in the United
States, all certificates and licenses required by the laws of the jurisdiction
of registry, for the performance by such employees of similar functions within
the United States of America or such other jurisdiction of registry (it is
understood that cabin attendants need not be regular employees of Lessee (or any
Sublessee)) and (ii) shall be maintained by Lessee (or any Sublessee) in
accordance with its normal maintenance practices.
Schedule I-21