EX-99(A)
PARTICIPATION AGREEMENT
[NW ____ _]
Dated as of
[________________]
Among
NORTHWEST AIRLINES, INC.,
Lessee,
NORTHWEST AIRLINES CORPORATION,
Guarantor,
[________________________________],
Owner Participant,
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
Pass Through Trustee under each of
the Pass Through Trust Agreements,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its Individual Capacity, except as expressly provided
herein, but solely as Owner Trustee,
STATE STREET BANK AND TRUST COMPANY,
Subordination Agent,
and
STATE STREET BANK AND TRUST COMPANY,
in its Individual Capacity and as Indenture Trustee
_______________________
One [Airbus A319-114] [Boeing 757-251] Aircraft
N[_____]
Leased to Northwest Airlines, Inc.
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INDEX TO PARTICIPATION AGREEMENT
Page
SECTION 1. Participations in Lessor's Cost of the Aircraft . . . 3
SECTION 2. Lessee's Notice of Delivery Date . . . . . . . . . . 4
SECTION 3. Instructions to the Owner Trustee. . . . . . . . . . 4
SECTION 4. Conditions . . . . . . . . . . . . . . . . . . . . . 5
(a) Conditions Precedent to the Participations in the
Aircraft . . . . . . . . . . . . . . . . . . . . . . 5
(b) Conditions Precedent to the Obligations of Lessee
and the Guarantor . . . . . . . . . . . . . . . . . . 13
SECTION 5. [Intentionally Omitted] . . . . . . . . . . . . . . . 14
SECTION 6. Extent of Interest of Certificate Holders . . . . . . 14
SECTION 7. Representations and Warranties of Lessee and the
Guarantor; Indemnities . . . . . . . . . . . . . 14
(a) Representations and Warranties . . . . . . . . . . . . 14
(b) General Tax Indemnity . . . . . . . . . . . . . . . . 17
(c) General Indemnity . . . . . . . . . . . . . . . . . . 17
(d) Income Tax . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 8. Representations, Warranties and Covenants . . . . . . 18
SECTION 9. Reliance of Liquidity Provider and Policy Provider . 35
SECTION 10. Other Documents . . . . . . . . . . . . . . . . . . . 36
SECTION 11. Certain Covenants of Lessee . . . . . . . . . . . . . 36
SECTION 12. Owner for Federal Tax Purposes . . . . . . . . . . . 37
SECTION 13. Certain Definitions; Notices; Consent to Jurisdiction 37
SECTION 14. Change of Situs of Owner Trust . . . . . . . . . . . 38
SECTION 15. Miscellaneous . . . . . . . . . . . . . . . . . . . . 39
SECTION 16. Expenses . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 17. Refinancings . . . . . . . . . . . . . . . . . . . . 40
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SCHEDULES
SCHEDULE I - Names and Addresses
SCHEDULE II - Commitments
SCHEDULE III - Pass Through Trust Agreements
EXHIBITS
Exhibit A - Schedule of Countries Authorized for
Reregistration
Exhibit B-1 - Form of Opinion of Simpson Thacher & Bartlett,
special counsel for the Lessee and the
Guarantor
Exhibit B-2 - Form of Opinion of Cadwalader, Wickersham &
Taft, special counsel for the Lessee and the
Guarantor
Exhibit B-3 - Form of Opinion of Lessee's Legal Department
Exhibit C - Form of Opinion of counsel for the
Manufacturer [and the Supplier -- A319's only]
Exhibit D - Form of Opinion of Ray, Quinney & Nebeker,
special counsel for the Owner Trustee
Exhibit E-1 - Form of Opinion of [___________________],
special counsel for the Owner Participant
Exhibit E-2 - Form of Opinion of Owner Participant's in-
house counsel
Exhibit F - Form of Opinion of Crowe & Dunlevy, P.C.
Exhibit G - Form of Opinion of Bingham Dana LLP, special
counsel for the Indenture Trustee
Exhibit H-1 - [Intentionally Omitted]
Exhibit H-2 - [Intentionally Omitted]
Exhibit I - Form of Section 1110 Opinion of Cadwalader,
Wickersham & Taft, special counsel for the
Lessee
Exhibit J-1 - Form of Opinion of Bingham Dana LLP, special
counsel for the Pass Through Trustee
Exhibit J-2 - Form of Opinion of Bingham Dana LLP, special
counsel for the Subordination Agent
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Exhibit K - Section 7(b) - General Tax Indemnity
Exhibit L - Section 7(c) - General Indemnity
PARTICIPATION AGREEMENT
[NW ____ _]
THIS PARTICIPATION AGREEMENT [NW ____ _] dated as of
[_______________], among (i) NORTHWEST AIRLINES, INC., a Minnesota
corporation (the "Lessee"), (ii) NORTHWEST AIRLINES CORPORATION, a
Delaware corporation (the "Guarantor"), (iii)
[_________________________], a [__________] corporation (the "Owner
Participant"), (iv) STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its individual capacity except as otherwise
provided herein, but solely as trustee (in such capacity, the "Pass
Through Trustee") under each of two separate Pass Through Trust
Agreements (as defined below), (v) FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not in its individual
capacity, except as expressly provided herein, but solely as Owner
Trustee under the Trust Agreement (herein, in such latter capacity,
together with any successor owner trustee, called the "Owner Trustee"),
(vi) STATE STREET BANK AND TRUST COMPANY, not in its individual capacity,
but solely as subordination agent and trustee (in such capacity, the
"Subordination Agent") under the Intercreditor Agreement (defined below),
and (vii) STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company, in its individual capacity and as Indenture Trustee under the
Trust Indenture (as hereinafter defined) (herein, in such latter capacity
together with any successor indenture trustee, called the "Indenture
Trustee") (this "Agreement");
W I T N E S S E T H:
WHEREAS, pursuant to the Purchase Agreement (as such
term is defined in the Lease hereinafter referred to) between Lessee and
the [Supplier] [Manufacturer], the [Supplier] [Manufacturer] has agreed
to sell to Lessee, among other things, certain [Airbus Industrie
[A319-114] [Boeing 757-251] aircraft, including the Aircraft which has
been delivered by the [Supplier] [Manufacturer] to Lessee and is the
subject of this Agreement;
WHEREAS, concurrently with the execution and delivery of
this Agreement,
(i) Lessee and the Owner Trustee are entering into a Purchase
Agreement Assignment [NW ____ _], dated as of the date hereof (herein
called the "Purchase Agreement Assignment"), whereby Lessee assigns to the
Owner Trustee certain rights and interests of Lessee under the Purchase
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Agreement with respect to the Aircraft; and
(ii) [the Manufacturer and the Supplier have executed the
Manufacturer Consent and Agreement to Assignment of Warranties [NW ____
__] and the Supplier Consent and Agreement to Assignment of Warranties
[NW ____ _] (herein collectively called the "Consent and Agreement"),
substantially in the forms attached to the Purchase Agreement Assignment;
-- A319's] [the Manufacturer has executed the Consent and Agreement [NW
____ _] (herein called the "Consent and Agreement"), substantially in the
form attached to the Purchase Agreement Assignment; -- 757's]
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Owner Participant is entering into a Trust Agreement
[NW ____ _], dated as of the date hereof (said Trust Agreement, as the
same may be amended or supplemented from time to time, being herein
called the "Trust Agreement", such term to include, unless the context
otherwise requires, any Trust Supplement referred to below), with the
Owner Trustee, pursuant to which Trust Agreement the Owner Trustee
agrees, among other things, to hold the Trust Estate defined in
Section 1.01 thereof (herein called the "Trust Estate") for the use and
benefit of the Owner Participant;
WHEREAS, the Indenture Trustee and the Owner Trustee
concurrently with the execution and delivery of this Agreement are
entering into the Trust Indenture and Security Agreement [NW ____ _],
dated as of the date hereof (said Trust Indenture and Security Agreement,
as the same may be amended or supplemented from time to time, being
herein called the "Trust Indenture", such term to include, unless the
context otherwise requires, the Trust Supplement referred to below)
pursuant to which the Owner Trustee will issue secured certificates
substantially in the form set forth in Section 2.01 thereof (the "Secured
Certificates", and individually, a "Secured Certificate") in two series,
which Secured Certificates are to be secured by the mortgage and security
interests created by the Owner Trustee in favor of the Indenture Trustee,
and the Owner Trustee shall execute and deliver a Trust and Indenture
Supplement substantially in the form of Exhibit A to the Trust Indenture
(the "Trust Supplement") covering the Aircraft, supplementing the Trust
Agreement and the Trust Indenture;
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Owner Trustee and Lessee have entered into the Lease
Agreement [NW ____ _], dated as of the date hereof (such Lease Agreement,
as the same may be amended or supplemented from time to time to the
extent permitted by the terms thereof and this agreement, herein called
the "Lease", such term to include, unless the context otherwise requires,
the Lease Supplement referred to below), whereby, subject to the terms
and conditions set forth therein, the Owner Trustee agrees to lease to
Lessee, and Lessee agrees to lease from the Owner Trustee the Aircraft on
the date (the "Delivery Date") that the Aircraft is sold and delivered by
Lessee to the Owner Trustee under the Bill of Sale, and accepted by the
Owner Trustee for all purposes of the Lease, such acceptance to be
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evidenced by the execution of the Trust Supplement covering the Aircraft,
and such lease to be evidenced by the execution and delivery of a Lease
Supplement covering the Aircraft;
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Owner Participant is entering into a Tax Indemnity
Agreement [NW ____ _], dated as of the date hereof, with Lessee (the "Tax
Indemnity Agreement");
WHEREAS, concurrently with the execution and delivery of
this Agreement; the Guarantor is entering into a Guarantee [NW ____ _],
dated as of the date hereof, pursuant to which the Guarantor guarantees
certain obligations of Lessee under the Operative Documents (the
"Guarantee");
WHEREAS, pursuant to the Pass Through Trust Agreement
and each of the Pass Through Trust Supplements set forth in Schedule III
hereto (collectively, the "Pass Through Trust Agreements"), on the
Issuance Date two separate trusts (collectively, the "Pass Through
Trusts" and, individually, a "Pass Through Trust") were created to
facilitate the transactions contemplated hereby, including, without
limitation, the issuance and sale by each Pass Through Trust of pass
through certificates pursuant thereto (collectively, the "Certificates");
WHEREAS, the proceeds from the issuance and sale of the
Certificates by each Pass Through Trust will be applied in part by the
Pass Through Trustee on the Delivery Date to purchase from the Owner
Trustee, on behalf of each Pass Through Trust, all of the Secured
Certificates bearing the same interest rate as the Certificates issued by
such Pass Through Trust;
WHEREAS, on the Issuance Date (i) Credit Suisse First
Boston, New York branch (the "Liquidity Provider") entered into two
revolving credit agreements (each, a "Liquidity Facility"), one for the
benefit of the Holders of Certificates of each Pass Through Trust, with
the Subordination Agent, as agent for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, the
Liquidity Provider, the Policy Provider and the Subordination Agent
entered into the Intercreditor Agreement, dated June 28, 2000 (the
"Intercreditor Agreement");
WHEREAS, the Secured Certificates will be held by the
Subordination Agent pursuant to the Intercreditor Agreement on behalf of
the Pass Through Trusts;
WHEREAS, in order to facilitate the transactions
contemplated hereby, Lessee and the Guarantor have entered into the
Underwriting Agreement, dated as of June 21, 2000, among Lessee, the
Guarantor and the several underwriters named therein (the "Underwriting
Agreement"); and
WHEREAS, certain terms are used herein as defined in
Section 13(a) hereof;
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NOW, THEREFORE, in consideration of the mutual
agreements herein contained, the parties hereto agree as follows:
SECTION 1. Participations in Lessor's Cost of the Aircraft. (a)
Participation by Pass Through Trustees. Subject to the terms and conditions
of this Agreement, the Pass Through Trustee for each Pass Through Trust agrees
to finance, in part, the Owner Trustee's payment of Lessor's Cost for the
Aircraft by paying to the Owner Trustee the aggregate purchase price of the
Secured Certificates being issued to such Pass Through Trustee as set forth on
Schedule II opposite the name of such Pass Through Trust. The Pass Through
Trustees shall make such payments to the Owner Trustee on a date to be
designated pursuant to Section 2 hereof, but in no event later than
[__________], by Transferring to the account of the Owner Trustee at State
Street Bank and Trust Company, 225 Franklin Street, Boston, Massachusetts
02110, ABA No. 011-000-028, Account No. 9903-990-1, Reference: Northwest/NW
[_____ __], not later than 9:30 a.m.,New York City time, on the Delivery
Date in immediately available funds in Dollars, the amount set forth opposite
the name of such Pass Through Trust on Schedule II hereto.
Upon the occurrence of the above transfers by the Pass
Through Trustee for each Pass Through Trust to the Owner Trustee, the
Owner Trustee, at the direction of the Owner Participant, shall issue,
pursuant to Article II of the Trust Indenture, to the Subordination Agent
on behalf of the Pass Through Trustee for each of the Pass Through
Trusts, Secured Certificates of the maturity and aggregate principal
amount, bearing the interest rate and for the purchase price set forth on
Schedule II hereto opposite the name of such Pass Through Trust.
(b) Participation by Owner Participant. Subject to the terms and
conditions of this Agreement, the Owner Participant hereby agrees to
participate in the payment of Lessor's Cost for the Aircraft by making an
equity investment in the beneficial ownership of the Aircraft on a date to
be designated pursuant to Section 2 hereof, but in no event later than
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[__________], by Transferring to the account of the Owner Trustee at State
Street Bank and Trust Company, 225 Franklin Street, Boston, Massachusetts
02110, ABA No. 011-000-028, Account No. 9903-990-1, Reference: Northwest/NW
[_____ __], not later than 9:30 a.m., New York City time, on the Delivery
Date in immediately available funds in Dollars, the amount set forth opposite
the Owner Participant's name on Schedule II hereto.
(c) General Provisions. The amount of the participation of each of
the Pass Through Trustee and the Owner Participant to be made as provided above
in the payment of Lessor's Cost for the Aircraft is hereinafter called such
party's "Commitment" for the Aircraft. In case any of the Pass Through Trustee
or the Owner Participant shall default in its obligation under the provisions
of this Section 1, no other such party shall have any obligation to make any
portion of such defaulted amount available or to increase the amount of its
Commitment and the obligation of such nondefaulting party shall remain subject
to the terms and conditions set forth in this Agreement. Upon receipt by the
Owner Trustee of all amounts to be furnished to it on the Delivery Date
pursuant to this Section 1 and the satisfaction of the conditions set forth in
Section 4 hereof, Lessee shall transfer title to and deliver the Aircraft to
the Owner Trustee, and the Owner Trustee shall purchase and take title to and
accept delivery of the Aircraft. In consideration of the transfer of title to
and delivery of the Aircraft to the Owner Trustee, the Owner Trustee shall,
simultaneously with such transfer of title and delivery, pay to Lessee (from
the amounts so furnished it by the Participants) Lessor's Cost for the
Aircraft.
SECTION 2. Lessee's Notice of Delivery Date. Lessee agrees to give
each Participant, the Owner Trustee and the Indenture Trustee at least two
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Business Days' telecopy or other written notice of the Delivery Date for the
Aircraft, which Delivery Date shall be a Business Day, which notice shall
specify the amount of Lessor's Cost and the amount of each Participant's
Commitment for the Aircraft. As to each Participant, the making of its
Commitment for the Aircraft available in the manner required by Section 1 shall
constitute a waiver of such notice.
SECTION 3. Instructions to the Owner Trustee. The Owner Participant
agrees that its releasing the amount of its Commitment for the Aircraft to the
account of the Owner Trustee in accordance with the terms of Section 1 shall
constitute, subject to satisfaction or waiver of the conditions set forth in
Section 4(a), without further act, authorization and direction by the Owner
Participant to the Owner Trustee:
(i) to pay to Lessee Lessor's Cost for the Aircraft;
(ii) to the extent not previously accomplished by a prior
authorization, to authorize a representative or representatives of the
Owner Trustee (who shall be an employee or employees, or an agent or
agents, of Lessee designated by Lessee) to accept delivery of the Aircraft
on the Delivery Date pursuant to the Acceptance Certificate;
(iii) to accept from Lessee the Bill of Sale and the FAA Bill of Sale
for the Aircraft referred to in Section 4(a)(v)(8) and 4(a)(v)(9);
(iv) to execute an Aircraft Registration Application, the Lease
Supplement and the Trust Supplement, in each case covering the Aircraft;
(v) to borrow from the Pass Through Trustee to finance a portion of
the Lessor's Cost for the Aircraft and to execute and deliver to the
Subordination Agent on behalf of the Pass Through Trustee for each of the
Pass Through Trusts a principal amount of Secured Certificates bearing the
interest rate set forth opposite the name of such Pass Through Trust on
Schedule II hereto, pursuant hereto and to the Trust Indenture; and
(vi) to take such other action as may be required to be taken by the
Owner Trustee on the Delivery Date by the terms of any Operative Document.
SECTION 4. Conditions. (a) Conditions Precedent to The
Participations in the Aircraft(a)Conditions Precedent to the Participations in
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the Aircraft. It is agreed that the obligations of each of the Pass Through
Trustee and the Owner Participant to participate in the payment of Lessor's
Cost and to make available the amount of its respective Commitment are subject
to the satisfaction prior to or on the Delivery Date of the following
conditions precedent, except that paragraphs (iii), (v)(5), (xxi), (xxii) and
(xxiv) shall not be a condition precedent to the obligations of the Pass
Through Trustee, and paragraphs (iv), (vii)(D) and (xiv) shall not be a
condition precedent to the obligation of the Owner Participant:
(i) The Pass Through Trustee and the Owner Participant shall have
received due notice with respect to such participation pursuant to
Section 2 hereof (or shall have waived such notice either in writing or as
provided in Section 2).
(ii) No change shall have occurred after the date of the execution
and delivery of this Agreement in applicable law or regulations or
guidelines or interpretations thereof by appropriate regulatory
authorities which would make it a violation of law or regulations or
guidelines for the Pass Through Trustee or the Owner Participant to make
its Commitment available in accordance with Section 1 hereof.
(iii) In the case of the Owner Participant, the Pass Through Trustees
shall have made available the amount of their Commitments for the Aircraft
in accordance with Section 1 hereof.
(iv) In the case of the Pass Through Trustees, the Owner Participant
shall have made available the amount of its Commitment for the Aircraft in
accordance with Section 1 hereof.
(v) The following documents shall have been duly authorized,
executed and delivered by the respective party or parties thereto, shall
each be satisfactory in form and substance to the Pass Through Trustee and
the Owner Participant and shall be in full force and effect and executed
counterparts shall have been delivered to the Pass Through Trustee and the
Owner Participant, or their respective counsel, provided that only the
Subordination Agent on behalf of each Pass Through Trustee shall receive
an executed original of such Pass Through Trustee's respective Secured
Certificate and provided, further, that an excerpted copy of the Purchase
Agreement shall only be delivered to and retained by the Owner Trustee
(but the Indenture Trustee shall also retain an excerpted copy of the
Purchase Agreement which may be inspected by the Owner Participant and its
counsel prior to the Delivery Date and subsequent to the Delivery Date may
be inspected and reviewed by the Indenture Trustee if and only if there
shall occur and be continuing an Event of Default), the chattel paper
counterpart of the Lease and the Lease Supplement covering the Aircraft
dated the Delivery Date shall be delivered to the Indenture Trustee, and
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the Tax Indemnity Agreement need only be satisfactory to the Owner
Participant and Lessee and shall only be delivered to Lessee and the Owner
Participant and their respective counsel:
(1) an excerpted copy of the Purchase Agreement (insofar as it
relates to the Aircraft) [and the Guaranty -- A319's only];
(2) the Purchase Agreement Assignment;
(3) the Lease;
(4) a Lease Supplement covering the Aircraft dated the Delivery
Date;
(5) the Tax Indemnity Agreement;
(6) the Trust Agreement;
(7) a Trust Supplement covering the Aircraft dated the
Delivery Date;
(8) the Bill of Sale;
(9) the FAA Bill of Sale;
(10) an acceptance certificate covering the Aircraft in the
form agreed to by the Owner Participant and Lessee (herein called the
"Acceptance Certificate") duly completed and executed by the Owner
Trustee or its agent, which may be a representative of Lessee, and by
such representative on behalf of Lessee;
(11) the Trust Indenture;
(12) the Secured Certificates;
(13) the Consent and Agreement;
(14) the Guarantee; and
(15) [the French Pledge Agreement. -- A319's only]
In addition, the Pass Through Trustee and the Owner
Participant each shall have received executed counterparts or conformed
copies of the following documents:
(1) each of the Pass Through Trust Agreements;
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(2) the Intercreditor Agreement; and
(3) the Liquidity Facility for each of the Pass Through
Trusts.
(vi) A Uniform Commercial Code financing statement or statements
covering all the security interests created by or pursuant to the Granting
Clause of the Trust Indenture that are not covered by the recording system
established by the Federal Aviation Act shall have been executed and
delivered by the Owner Trustee, and such financing statement or statements
shall have been duly filed in all places necessary or advisable, and any
additional Uniform Commercial Code financing statements deemed advisable
by the Owner Participant or the Pass Through Trustee shall have been
executed and delivered by Lessee or the Owner Trustee and duly filed.
(vii) The Pass Through Trustee and the Owner Participant shall have
received the following:
(A) (1) an incumbency certificate of Lessee and the Guarantor
(as the case may be) as to the person or persons authorized to
execute and deliver this Agreement, the Lease, the Lease Supplement
covering the Aircraft, the Bill of Sale, the FAA Bill of Sale, the
Purchase Agreement Assignment, the Tax Indemnity Agreement, the Pass
Through Trust Agreements, the Guarantee and any other documents to
be executed on behalf of Lessee or the Guarantor (as the case may be)
in connection with the transactions contemplated hereby and the
signatures of such person or persons;
(2) a copy of the resolutions of the board of directors of
Lessee and the Guarantor or the executive committee thereof,
certified by the Secretary or an Assistant Secretary of Lessee and
the Guarantor (as the case may be), duly authorizing the
transactions contemplated hereby and the execution and delivery of
each of the documents required to be executed and delivered on
behalf of Lessee or the Guarantor (as the case may be) in connection
with the transactions contemplated hereby; and
(3) a copy of the certificate of incorporation of Lessee and
the Guarantor, certified by the Secretary of State of the State of
Minnesota in the case of Lessee and certified by the Secretary of
State of the State of Delaware in the case of the Guarantor, a copy
of the by-laws of Lessee and the Guarantor, certified by the
Secretary or Assistant Secretary of Lessee and the Guarantor (as the
case may be), and a certificate or other evidence from the Secretary
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of State of the State of Minnesota in the case of Lessee and from
the Secretary of State of the State of Delaware in the case of the
Guarantor, dated as of a date reasonably near the Delivery Date, as
to the due incorporation and good standing of Lessee or the
Guarantor (as the case may be) in such state.
(B)(1) an incumbency certificate of the Indenture Trustee as to
the person or persons authorized to execute and deliver this
Agreement, the Trust Indenture and any other documents to be
executed on behalf of the Indenture Trustee in connection with the
transactions contemplated hereby and the signatures of such person
or persons;
(2) a copy of the resolutions of the board of directors of the
Indenture Trustee, certified by the Secretary or an Assistant
Secretary of the Indenture Trustee, duly authorizing the
transactions contemplated hereby and the execution and delivery of
each of the documents required to be executed and delivered on
behalf of the Indenture Trustee in connection with the transactions
contemplated hereby;
(3) a copy of the articles of association and by-laws of the
Indenture Trustee, each certified by the Secretary or an Assistant
Secretary of the Indenture Trustee; and
(4) a certificate signed by an authorized officer of the
Indenture Trustee, dated the Delivery Date, certifying that the
representations and warranties contained herein of the Indenture
Trustee are correct as though made on and as of the Delivery Date,
except to the extent that such representations and warranties relate
solely to an earlier date (in which case such representations and
warranties are correct on and as of such earlier date).
(C)(1) an incumbency certificate of the Owner Trustee as to the
person or persons authorized to execute and deliver this Agreement,
the Lease, the Lease Supplement covering the Aircraft, the Trust
Agreement, the Trust Indenture, the Purchase Agreement Assignment
and any other documents to be executed on behalf of the Owner
Trustee in connection with the transactions contemplated hereby and
the signatures of such person or persons;
(2) a copy of the resolutions of the board of directors of the
Owner Trustee, certified by the Secretary or an Assistant Secretary
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of the Owner Trustee, duly authorizing the transactions contemplated
hereby and the execution and delivery of each of the documents
required to be executed and delivered on behalf of the Owner Trustee
in connection with the transactions contemplated hereby;
(3) a copy of the articles of association and by-laws of the
Owner Trustee, each certified by the Secretary or an Assistant
Secretary of the Owner Trustee; and
(4) a certificate signed by an authorized officer of the Owner
Trustee, dated the Delivery Date, certifying that the
representations and warranties contained herein of the Owner Trustee
(in its individual capacity and as trustee) are correct as though
made on and as of the Delivery Date, except to the extent that such
representations and warranties relate solely to an earlier date (in
which case such representations and warranties are correct on and as
of such earlier date).
(D)(1) an incumbency certificate of the Owner Participant as
to the person or persons authorized to execute and deliver this
Agreement, the Tax Indemnity Agreement, the Trust Agreement and any
other documents to be executed on behalf of the Owner Participant in
connection with the transactions contemplated hereby and the
signatures of such person or persons;
(2) a certificate signed by the Secretary or an Assistant
Secretary of the Owner Participant, to the effect that the
transactions contemplated hereby and the execution and delivery of
each of the documents required to be executed and delivered on
behalf of the Owner Participant in connection with the transactions
contemplated hereby have been duly authorized;
(3) a copy of the articles of association and by-laws of the
Owner Participant, each certified by the Secretary or an Assistant
Secretary of the Owner Participant; and
(4) a certificate signed by an authorized officer of the
Owner Participant, dated the Delivery Date, certifying that the
representations and warranties contained herein of the Owner
Participant are correct as though made on and as of the Delivery
Date, except to the extent that such representations and warranties
relate solely to an earlier date (in which case such representations
and warranties are correct on and as of such earlier date).
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(viii) All appropriate action required to have been taken prior to
the Delivery Date in connection with the transactions contemplated by this
Agreement shall have been taken by the Federal Aviation Administration, or
any governmental or political agency, subdivision or instrumentality of
the United States, and all orders, permits, waivers, authorizations,
exemptions and approvals of such entities required to be in effect on the
Delivery Date in connection with the transactions contemplated by this
Agreement shall have been issued, and all such orders, permits, waivers,
authorizations, exemptions and approvals shall be in full force and effect
on the Delivery Date.
(ix) On the Delivery Date the Pass Through Trustee and the Owner
Participant shall have received a certificate signed by an authorized
officer of Lessee (and with respect to the matters set forth in clause (4)
below, the Guarantor) to the effect that:
(1) the Aircraft has been duly certified by the Federal
Aviation Administration as to type and has a current certificate of
airworthiness;
(2) the FAA Bill of Sale, the Lease, the Lease Supplement,
the Trust Indenture and the Trust Supplement covering the Aircraft
shall have been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the Federal
Aviation Administration, and the Trust Agreement shall have been
filed (or shall be in the process of being so filed) with the Federal
Aviation Administration;
(3) application for registration of the Aircraft in the name
of the Owner Trustee has been duly made with the Federal Aviation
Administration; and
(4) the representations and warranties contained herein of
Lessee and the Guarantor are correct as though made on and as of the
Delivery Date, except to the extent that such representations and
warranties (other than those contained in clause (F) of Section 7(a)
(iv)) relate solely to an earlier date (in which case such
representations and warranties were correct on and as of such
earlier date).
(x) Lessee and the Guarantor shall have entered into the Underwriting
Agreement and each of the Pass Through Trust Agreements, the Certificates
shall have been issued and sold pursuant to the Underwriting Agreement and
the Pass Through Trust Agreements.
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(xi) The Pass Through Trustee and the Owner Participant shall have
received, addressed to the Pass Through Trustee, the Indenture Trustee,
the Owner Participant and the Owner Trustee, and reasonably satisfactory
as to scope and substance to the Pass Through Trustee and the Owner
Participant, an opinion substantially in the form of Exhibit B-1 hereto
from Simpson Thacher & Bartlett, special counsel for Lessee and the
Guarantor, an opinion substantially in the form of Exhibit B-2 hereto from
Cadwalader, Wickersham & Taft, special counsel for Lessee and the
Guarantor, and an opinion substantially in the form of Exhibit B-3 hereto
from Lessee's legal department.
(xii) The Pass Through Trustee and the Owner Participant shall have
received, addressed to the Pass Through Trustee, the Indenture Trustee,
the Owner Participant, the Owner Trustee, the Guarantor and Lessee and
reasonably satisfactory as to scope and substance to the Pass Through
Trustee, the Owner Participant, the Guarantor and Lessee, an opinion
substantially in the form of Exhibit C hereto from [counsel to the
Supplier and the Manufacturer. -- A319's] [counsel to the Manufacturer --
757's]
(xiii) The Pass Through Trustee and the Owner Participant shall have
received, addressed to the Pass Through Trustee, the Indenture Trustee,
the Owner Participant, the Owner Trustee, the Guarantor and Lessee, and
reasonably satisfactory as to scope and substance to the Pass Through
Trustee, the Owner Participant, the Guarantor and Lessee, an opinion
substantially in the form of Exhibit D hereto from Ray, Quinney & Nebeker,
special counsel for the Owner Trustee.
(xiv) The Pass Through Trustee shall have received, addressed to
the Pass Through Trustee, the Indenture Trustee, the Owner Trustee, the
Guarantor and Lessee, and reasonably satisfactory as to scope and
substance to the Pass Through Trustee, the Guarantor and Lessee, an
opinion substantially in the form of Exhibit E-1 hereto from
[________________], special counsel for the Owner Participant, and an
opinion substantially in the form of Exhibit E-2 hereto from the Owner
Participant's in-house counsel.
(xv) The Pass Through Trustee and the Owner Participant shall have
received, addressed to the Pass Through Trustee, the Indenture Trustee,
the Owner Participant, the Owner Trustee, the Guarantor and Lessee, and
reasonably satisfactory as to scope and substance to the Pass Through
Trustee, the Owner Participant, the Guarantor and Lessee, an opinion
substantially in the form of Exhibit F hereto from Crowe & Dunlevy, P.C.
(xvi) The Pass Through Trustee and the Owner Participant shall have
received, addressed to the Pass Through Trustee, the Owner Participant,
the Owner Trustee, the Guarantor and Lessee, and reasonably satisfactory
as to scope and substance to the Pass Through Trustee, the Owner
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Participant, the Guarantor and Lessee, an opinion substantially in the
form of Exhibit G hereto from Bingham Dana LLP, special counsel for
the Indenture Trustee.
(xvii) [Intentionally Omitted].
(xviii) The Pass Through Trustee and Owner Participant shall have
received an independent insurance broker's report, in form and substance
satisfactory to the Pass Through Trustee and the Owner Participant, as to
the due compliance with the terms of Section 11 of the Lease relating to
insurance with respect to the Aircraft.
(xix) Lessor's Cost for the Aircraft shall be $[______________].
(xx) No action or proceeding shall have been instituted nor shall
governmental action be threatened before any court or governmental agency,
nor shall any order, judgment or decree have been issued or proposed to be
issued by any court or governmental agency at the time of the Delivery
Date to set aside, restrain, enjoin or prevent the completion and
consummation of this Agreement or the transactions contemplated hereby.
(xxi) The Owner Participant shall have received from
[___________________], special tax counsel to the Owner Participant, an
opinion, in form and substance satisfactory to the Owner Participant, with
respect to certain Federal income tax aspects of the transaction
contemplated by the Operative Documents.
(xxii) In the opinion of the Owner Participant and its special tax
counsel, there shall have been, since the date hereof, no amendment,
modification, addition, or change in or to the provisions of the Internal
Revenue Code of 1986, as amended through the date hereof, and the
regulations promulgated under the Code (including temporary regulations),
Internal Revenue Service Revenue Procedures or Revenue Rulings, or other
administrative interpretations, applicable judicial precedents or
Executive Orders of the President of the United States, all as in effect
on the date hereof, the effect of which might preclude the Owner
Participant from obtaining any of the income tax benefits and consequences
assumed to be available to the Owner Participant as set forth in Section 2
of the Tax Indemnity Agreement.
(xxiii) The Pass Through Trustee and the Owner Participant shall
have received a favorable opinion substantially in the form of Exhibit I
hereto addressed to the Pass Through Trustee and the Owner Participant,
and reasonably satisfactory as to scope and substance to the Pass Through
Trustee and the Owner Participant, from Cadwalader, Wickersham &
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Taft, special counsel for Lessee, which opinion shall state (with
customary assumptions and qualifications) that the Owner Trustee, as
lessor under the Lease, and the Indenture Trustee, as assignee of the
Owner Trustee's rights under the Lease pursuant to the Trust Indenture,
would be entitled to the benefits of 11 U.S.C. Section 1110 with respect
to the Aircraft.
(xxiv) The Owner Participant shall have received (A) a certificate
signed by an authorized officer of the Pass Through Trustee, dated the
Delivery Date, certifying that the representations and warranties
contained herein of the Pass Through Trustee are correct as though made on
and as of the Delivery Date, except to the extent that such
representations and warranties relate solely to an earlier date (in which
case such representations and warranties are correct on and as of such
earlier date), (B) an opinion substantially in the form of Exhibit J-1
hereto addressed to the Owner Participant, the Guarantor and Lessee of
Bingham Dana LLP, special counsel for the Pass Through Trustee, and
reasonably satisfactory as to scope and substance to the Owner
Participant, the Guarantor and Lessee, and (C)(1) an incumbency
certificate of the Pass Through Trustee as to the person or persons
authorized to execute and deliver this Agreement and any other documents
to be executed on behalf of the Pass Through Trustee in connection with
the transactions contemplated hereby and the signatures of such person or
persons; (2) a copy of the articles of association and by-laws of the Pass
Through Trustee, each certified by the Secretary or an Assistant Secretary
of the Pass Through Trustee; and (3) such other documents and evidence
with respect to the Pass Through Trustee as it may reasonably request in
order to establish the due consummation of the transactions contemplated
by this Agreement, the taking of all necessary action in connection
therewith and compliance with the conditions herein set forth.
(xxv) The Pass Through Trustee and the Owner Participant shall have
received, addressed to the Pass Through Trustee, the Owner Participant,
the Owner Trustee, the Indenture Trustee, the Guarantor and Lessee, and
reasonably satisfactory as to scope and substance, to the Pass Through
Trustee, the Owner Participant, the Guarantor and Lessee, an opinion
substantially in the form of Exhibit J-2 hereto from Bingham Dana LLP,
special counsel to the Subordination Agent.
Promptly upon the registration of the Aircraft and the recording of
the Trust Indenture, the Lease, the Lease Supplement covering the Aircraft and
the Trust Supplement covering the Aircraft pursuant to the Federal Aviation
Act, Lessee will cause Crowe & Dunlevy, P.C., special counsel in Oklahoma City,
Oklahoma, to deliver to the Pass Through Trustee, the Indenture Trustee, the
Owner Participant, the Owner Trustee and Lessee an opinion as to the due and
valid registration of the Aircraft in the name of the Owner Trustee, the due
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recording of the FAA Bill of Sale, the Trust Indenture, such Lease Supplement,
such Trust Supplement and the Lease and the filing of the Trust Agreement and
the lack of filing of any intervening documents with respect to the Aircraft.
(b) Conditions Precedent to the Obligations of Lessee and the
Guarantor(b) Conditions Precedent to the Obligations of Lessee and the
Guarantor. It is (A) agreed that (A) the obligations of Lessee to sell the
Aircraft to the Owner Trustee and to accept delivery of the Aircraft under the
Lease, and (B) the obligations of Lessee and the Guarantor to enter into the
other Operative Documents, are all subject to the fulfillment to the
satisfaction of Lessee and the Guarantor prior to or on the Delivery Date of
the following conditions precedent:
(i) All appropriate action required to have been taken on or prior
to the Delivery Date in connection with the transactions contemplated by
this Agreement shall have been taken by the Federal Aviation
Administration, or any governmental or political agency, subdivision or
instrumentality of the United States, and all orders, permits, waivers,
exemptions, authorizations and approvals of such entities required to be
in effect on the Delivery Date in connection with the transactions
contemplated by this Agreement shall have been issued, and all such
orders, permits, waivers, exemptions, authorizations and approvals shall
be in full force and effect on the Delivery Date.
(ii) The conditions specified in Sections 4(a)(ii), 4(a)(iii) and
4(a)(iv) hereof shall have been satisfied.
(iii) Those documents described in Section 4(a)(v)shall have been duly
authorized, executed and delivered by the respective party or parties
thereto (other than Lessee and the Guarantor) in the manner specified in
Section 4(a)(v), shall each be satisfactory in form and substance to
Lessee and the Guarantor, shall be in full force and effect on the
Delivery Date, and an executed counterpart of each thereof (other than the
Secured Certificates) shall have been delivered to Lessee or its special
counsel and the Guarantor or its special counsel.
(iv) Lessee and the Guarantor shall have received (A) each
certificate referred to in Section 4(a)(vii) (other than the certificate
referred to in clause (A) thereof), (B) the certificate referred to in
Section 4(a)(xxiv)(A), and (C)(1) an incumbency certificate of the Pass
Through Trustee as to the person or persons authorized to execute and
deliver this Agreement and any other documents to be executed on behalf of
the Pass Through Trustee in connection with the transactions contemplated
hereby and the signatures of such person or persons; (2) a copy of the
articles of association and by-laws of the Pass Through Trustee, each
certified by the Secretary or an Assistant Secretary of the Pass Through
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Trustee; and (3) such other documents and evidence with respect to the
Pass Through Trustee as Lessee or its special counsel and the Guarantor or
its special counsel may reasonably request in order to establish the due
consummation of the transactions contemplated by this Agreement, the
taking of all necessary action in connection therewith and compliance with
the conditions herein set forth.
(v) Lessee and the Guarantor shall have received the opinions set
forth in Sections 4(a)(xii), 4(a)(xiii), (a)(xiv), 4(a)(xv), 4(a)(xvi),
4(a)(xxiv)(B) and 4(a)(xxv) in each case addressed to Lessee and the
Guarantor and dated the Delivery Date and in each case in scope and
substance reasonably satisfactory to Lessee and its special counsel and
the Guarantor and its special counsel.
(vi) No action or proceeding shall have been instituted nor shall
governmental action be threatened before any court or governmental agency,
nor shall any order, judgment or decree have been issued or proposed to be
issued by any court or governmental agency at the time of the Delivery
Date to set aside, restrain, enjoin or prevent the completion and
consummation of this Agreement or the transactions contemplated hereby.
(vii) No change shall have occurred after the date of the execution and
delivery of this Agreement in applicable law or regulations or guidelines
or interpretations by appropriate regulatory authorities which would make
it a violation of law or regulations or guidelines for Lessee or the
Guarantor to enter into any transaction contemplated by the Operative
Documents.
(viii) In the opinion of Lessee and its special counsel, there shall
have been, since the date hereof, no amendment, modification, addition or
change in or to the Internal Revenue Code of 1986, as amended through the
date hereof, the regulations promulgated under the Code (including
temporary regulations), Internal Revenue Service Revenue Procedures or
Revenue Rulings, or other administrative interpretations, applicable
judicial precedents or Executive Orders of the President of the United
States which might give rise to an indemnity obligation of Lessee under
any of the Operative Documents.
(ix) Lessee shall have been paid Lessor's Cost for the Aircraft.
SECTION 5. [Intentionally Omitted].
SECTION 6. Extent of Interest of Certificate Holders.
No Certificate Holder (as defined in the Trust Indenture) shall have any
further interest in, or other right with respect to, the mortgage and
security interests created by the Trust Indenture when and if the
principal of and interest on all Secured Certificates held by such holder
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and all other sums payable to such holder hereunder, under the Trust
Indenture and under such Secured Certificates shall have been paid in
full. Each Pass Through Trustee and, by its acceptance of a Secured
Certificate, each Certificate Holder agrees that it will look solely to
the income and proceeds from the Trust Indenture Estate to the extent
available for distribution to such Certificate Holder as provided in
Article III of the Trust Indenture and that neither the Owner Participant
nor the Owner Trustee shall be personally liable to the Pass Through
Trustees or any Certificate Holder for any amounts payable under the
Secured Certificates, the Trust Indenture or hereunder, except as
expressly provided in the Operative Documents.
SECTION 7. Representations and Warranties of Lessee and
the Guarantor; Indemnities. (a) Representations and Warranties(a)
Representations and Warranties . Lessee and the Guarantor represent and
warrant to the Pass Through Trustee, the Owner Trustee, the Indenture
Trustee, the Liquidity Provider, the Subordination Agent and the Owner
Participant that as of the Delivery Date:
(i) each of Lessee and the Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of the
state of its incorporation, has the corporate power and authority to own
or hold under lease its properties, has, or had on the respective dates of
execution thereof, the corporate power and authority to enter into and
perform its obligations under (i) in the case of Lessee, the Lessee
Documents, the Pass Through Trust Agreements, the Underwriting Agreement
and the other Operative Documents to which it is a party and (ii) in the
case of the Guarantor, this Agreement, the Pass Through Trust Agreements,
the Underwriting Agreement and the other Operative Documents to which it
is a party, and is duly qualified to do business as a foreign corporation
in each state in which its operations or the nature of its business
requires other than failures to so qualify which would not have a material
adverse effect on the condition (financial or otherwise), consolidated
business or properties of it and its subsidiaries considered as one
enterprise;
(ii) Lessee is a Certificated Air Carrier, and its chief executive
office (as such term is used in Article 9 of the Uniform Commercial Code
in effect in the State of Minnesota) is located at Eagan, Minnesota;
(iii) the execution and delivery by Lessee or the Guarantor (as the
case may be) of the Lessee Documents, the Pass Through Trust Agreements,
the Underwriting Agreement and each other Operative Document to which
Lessee or the Guarantor (as the case may be) is a party, and the
performance of the obligations of Lessee or the Guarantor (as the case
may be)under the Lessee Documents, the Pass Through Trust Agreements,
the Underwriting Agreement and each other Operative Document to which
Lessee or the Guarantor (as the case may be) is a party, have been duly
authorized by all necessary corporate action on the part of Lessee
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or the Guarantor, do not require any stockholder approval, or approval or
consent of any trustee or holder of any material indebtedness or material
obligations of Lessee or the Guarantor, except such as have been duly
obtained and are in full force and effect, and do not contravene any law,
governmental rule, regulation or order binding on Lessee or the Guarantor
(as the case may be) or the certificate of incorporation or by-laws of
Lessee or the Guarantor (as the case may be), or contravene the provisions
of, or constitute a default under, or result in the creation of any Lien
(other than Permitted Liens) upon the property of Lessee or the Guarantor
(as the case may be) under, any indenture, mortgage, contract or other
agreement to which Lessee or the Guarantor (as the case may be) is a party
or by which it may be bound or affected which contravention, default or
Lien, individually or in the aggregate, would be reasonably likely to have
a material adverse effect on the condition (financial or otherwise),
business or properties of the Guarantor and its subsidiaries considered as
one enterprise;
(iv) neither the execution and delivery by Lessee or the Guarantor
(as the case may be) of the Lessee Documents, the Pass Through Trust
Agreements, the Underwriting Agreement or any other Operative Document to
which Lessee or the Guarantor (as the case may be) is a party, nor the
performance of the obligations of Lessee or the Guarantor (as the case may
be) under the Lessee Documents, the Pass Through Trust Agreements, the
Underwriting Agreement or the other Operative Documents to which Lessee or
the Guarantor (as the case may be) is a party,requires the consent or
approval of, the giving of notice to, the registration with, or the taking
of any other action in respect of, the Department of Transportation, the
FAA, or any other federal, state or foreign governmental authority having
jurisdiction over Lessee or the Guarantor, other than (A) the registration
of the Certificates under the Securities Act of 1933, as amended, and
under the securities laws of any state in which the Certificates may be
offered for sale if the laws of such state require such action, (B) the
qualification of the Pass Through Trust Agreements under the Trust
Indenture Act of 1939, as amended, pursuant to an order of the Securities
and Exchange Commission, (C) the orders, permits, waivers, exemptions,
authorizations and approvals of the regulatory authorities having
jurisdiction over the operation of the Aircraft by Lessee or any Sublessee
required to be obtained on or prior to the Delivery Date, which orders,
permits, waivers, exemptions, authorizations and approvals have been duly
obtained and are, or on the Delivery Date will be, in full force and
effect (other than a flying time wire, all steps to obtain the issuance of
which will have been, on the Delivery Date, taken or caused to be taken by
Lessee), (D) the registration of the Aircraft referred to in Section 4(a)
(ix)(3), (E) the registrations and filings referred to in Section
7(a)(vi), and (F) authorizations, consents, approvals, actions, notices
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and filings required to be obtained, taken, given or made either only
after the date hereof or the failure of which to obtain, take, give or
make would not be reasonably likely to have a material adverse effect on
the condition (financial or otherwise), business or properties of the
Guarantor and its subsidiaries considered as one enterprise;
(v) this Agreement, each of the other Lessee Documents, the Pass
Through Trust Agreements and the Guarantee constitute the legal, valid and
binding obligations of Lessee or the Guarantor (as the case may be)
enforceable against Lessee or the Guarantor (as the case may be) in
accordance with their respective terms, except as the same may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting the rights of
creditors or lessors generally and by general principles of equity,
whether considered in a proceeding at law or in equity, and except, in the
case of the Lease, as limited by applicable laws which may affect the
remedies provided in the Lease, which laws, however, do not make the
remedies provided in the Lease inadequate for practical realization of the
benefits intended to be afforded thereby;
(vi) except for (A) [the filing for recording pursuant to the Federal
Aviation Act of the termination of the Mortgage, (B)] the filing of the
Trust Agreement with the FAA, [(B)] the registration of the Aircraft
pursuant to the Federal Aviation Act, [(C)] the filing for recording
pursuant to the Federal Aviation Act of the Lease with the Lease
Supplement covering the Aircraft, the Trust Indenture and the Trust
Supplement attached thereto and made a part thereof, the Trust Indenture
with the Trust Supplement attached thereto and made a part thereof and the
FAA Bill of Sale, [(D)] the filing of financing statements (and
continuation statements at periodic intervals) with respect to the
security interests created by such documents under the Uniform Commercial
Code of Minnesota and Utah and such other states as may be specified in
the opinions furnished pursuant to Section 4(a)(xi) hereof [and the filing
of a UCC-3 termination statement relating to the financing statement filed
in connection with the Mortgage], and [(E)] the taking of possession by
the Indenture Trustee of the original chattel paper counterpart of each of
the Lease and the Lease Supplement covering the Aircraft, no further
filing or recording of any document (including any financing statement in
respect thereof under Article 9 of the Uniform Commercial Code of any
applicable jurisdiction) is necessary under the laws of the United States
of America or any State thereof in order to perfect the Owner Trustee's
interest in the Aircraft as against Lessee and any third parties, or to
perfect the security interest in favor of the Indenture Trustee in the
Owner Trustee's interest in the Aircraft (with respect to such portion of
the Aircraft as is covered by the recording system established by the FAA
pursuant to 49 U.S.C. Section 44107) and in the Lease in any applicable
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jurisdiction in the United States;
(vii) neither Lessee, the Guarantor nor any of their affiliates has
directly or indirectly offered the Certificates for sale to any Person
other than in a manner permitted by the Securities Act of 1933,
as amended, and by the rules and regulations thereunder;
(viii) neither Lessee nor the Guarantor is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(ix) no event has occurred and is continuing which constitutes an
Event of Default or would constitute an Event of Default but for the
requirement that notice be given or time lapse or both;
(x) no event has occurred and is continuing which constitutes an
Event of Loss or would constitute an Event of Loss with the lapse of time;
(xi) Lessee is solvent and will not be rendered insolvent by the
sale of the Aircraft; after the sale of the Aircraft the capital of Lessee
will not be unreasonably small for the conduct of the business in which
Lessee is engaged or is about to engage; Lessee has no intention or belief
that it is about to incur debts beyond its ability to pay as they mature;
and Lessee's sale of the Aircraft is made without any intent to hinder,
delay or defraud either present or future creditors;
(xii) none of the proceeds from the issuance of the Secured
Certificates or from the acquisition by the Owner Participant of its
beneficial interest in the Trust Estate will be used directly or
indirectly by Lessee to purchase or carry any "margin security" as such
term is defined in Regulation U of the Board of Governors of the Federal
Reserve System; and
(xiii) On the Delivery Date, all sales or use tax then due and for
which Lessee is responsible pursuant to Section 7(b)(i) hereof shall have
been paid, other than such taxes which are being contested by Lessee in
good faith and by appropriate proceedings so long as such proceedings do
not involve any material risk of the sale, forfeiture or loss of the
Aircraft.
(b) General Tax Indemnity(b) General Tax Indemnity. Exhibit K,
which is a complete statement of the provisions of Section 7(b), is
incorporated herein in its entirety as if fully set forth herein.
(c) General Indemnity(c) General Indemnity. Exhibit L, which is a
complete statement of the provisions of Section 7(c), is incorporated
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herein in its entirety as if fully set forth herein.
(d) Income Tax(d) Income Tax . For purposes of this Section 7, the
term "Income Tax" means any Tax based on or measured by gross or net
income or receipts (other than sales, use, license or property Taxes or
Taxes in the nature thereof) (including, without limitation, capital gains
taxes, minimum taxes, income taxes collected by withholding and taxes on
tax preference items), and Taxes which are capital, doing business, excess
profits or net worth taxes and interest, additions to tax, penalties, or
other charges in respect thereof.
SECTION 8. Representations, Warranties and Covenants.
(a) [Intentionally Omitted].
(b) [Intentionally Omitted].
(c) Each of the Owner Participant and First Security Bank, National
Association, in its individual capacity, represents and warrants to the
other parties to this Agreement that it is, and on the Delivery Date will
be, a Citizen of the United States without making use of any voting trust,
voting powers agreement or similar arrangement. The Owner Participant
agrees, solely for the benefit of Lessee and the Loan Participants, that
if (i) it shall ceaset to be, or believes itself likely to cease to be, a
Citizen of the United States and (ii) the Aircraft shall or would
therefore become ineligible for registration in the name of the Owner
Trustee under the Federal Aviation Act and regulations then applicable
thereunder, then the Owner Participant shall (at its own expense and
without any reimbursement or indemnification from Lessee) promptly effect
a voting trust, voting powers agreement or other similar arrangement or
take any other action as may be necessary to prevent any deregistration
and to maintain the United States registration of the Aircraft. It is
agreed that: (A) the Owner Participant shall be liable to pay on request
to each of the other parties hereto and to each holder of a Secured
Certificate for any damages suffered by any such other party or holder as
the result of the representation and warranty of the Owner Participant in
the first sentence of this Section 8(c) proving to be untrue as of the
Delivery Date; and (B) the Owner Participant shall be liable to pay on
request to Lessee, any Sublessee and the Loan Participants for any damages
which may be incurred by Lessee, any Sublessee or the Loan Participants as
a result of the Owner Participant's failure to comply with its obligations
pursuant to the second sentence of this Section 8(c). Each party hereto
agrees, upon the request and at the sole expense of the Owner Participant,
to cooperate with the Owner Participant in complying with its obligations
under the provisions of the second sentence of this Section 8(c). First
Security Bank, National Association, in its individual capacity, agrees
that if at any time an officer or responsible employee of the Corporate
Trust Department of First Security Bank, National Association, shall
obtain actual knowledge that First Security Bank, National Association,
has ceased to be a Citizen of the United States without making use of a
voting trust, voting powers agreement or similar arrangement, it will
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promptly resign as Owner Trustee (if and so long as such citizenship is
necessary under the Federal Aviation Act as in effect at such time or, if
it is not necessary, if and so long as the Owner Trustee's citizenship
would have any material adverse effect on the Loan Participants, Lessee or
the Owner Participant), effective upon the appointment of a successor
Owner Trustee in accordance with Section 9.01 of the Trust Agreement. If
the Owner Participant or First Security Bank, National Association, in its
individual capacity, does not comply with the requirements of this Section
8(c), the Owner Trustee, the Indenture Trustee and the Participants hereby
agree that an Event of Default (or an event which would constitute an
Event of Default but for lapse of time or the giving of notice or both)
shall not have occurred and be continuing under the Lease due to
non-compliance by Lessee with the registration requirements in the Lease.
(d) First Security Bank, National Association, in its individual
capacity, represents and warrants that both the principal place of
business of the Owner Trustee and the place where its records concerning
the Aircraft and all of its interest in, to and under the Operative
Documents to which it is a party are kept is Salt Lake City, Utah. First
Security Bank, National Association, in its individual capacity, agrees
that it will not change the location of such office to a location outside
of Salt Lake City, Utah, without prior written notice to all parties.
First Security Bank, National Association, in its individual capacity,
further represents and warrants that (A) on the Delivery Date the Owner
Trustee shall have received whatever title to the Aircraft as was conveyed
to it by Lessee, and (B) the Trust Agreement, and, assuming due
authorization, execution and delivery of the Trust Agreement by the Owner
Participant, the other Owner Trustee Documents, when executed and
delivered, shall have been duly executed and delivered by one of its
officers who is duly authorized to execute and deliver such instruments on
behalf of the Owner Trustee. First Security Bank, National Association,
in its individual capacity, represents that it has not offered any
interest in the Trust Estate or any Secured Certificates or any similar
securities for sale to, or solicited any offer to acquire the same from,
anyone, and that no officer or responsible employee of the Corporate Trust
Department of First Security Bank, National Association, has knowledge of
any such offer or solicitation by anyone other than Lessee.
(e) Each Loan Participant represents and warrants that neither it
nor anyone acting in its behalf has offered any Secured Certificates for
sale to, or solicited any offer to buy any Secured Certificate from, any
Person other than in a manner in compliance with, and which does not
require registration under, the Securities Act of 1933, as amended, or the
rules and regulations thereunder.
(f) The Owner Participant and the Indenture Trustee agree that, at
any time after the Depreciation Period, Lessee may elect to effect a
change in registration of the Aircraft, at Lessee's cost and expense, so
long as (a) the country of registry of the Aircraft is a country listed on
Exhibit A hereto (or such other country as the Owner Trustee approves)
and (b) the following conditions are met: (i) unless the country of
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registry is Taiwan, the United States maintains normal diplomatic
relations with the country of registry of the Aircraft, and if the country
of registry is Taiwan, the United States maintains diplomatic relations at
least as good as those in effect on the Delivery Date; and (ii) the Owner
Trustee and the Indenture Trustee shall have received favorable opinions
(subject to customary exceptions) addressed to each such party, from
counsel of recognized reputation qualified in the laws of the relevant
jurisdiction to the effect that:
(A) the Owner Trustee's ownership interest in the Aircraft
shall be recognized under the laws of such jurisdiction, (B) the
obligations of Lessee, and the rights and remedies of the Owner
Trustee, under the Lease shall remain valid, binding and (subject to
customary bankruptcy and equitable remedies exceptions and to other
exceptions customary in foreign opinions generally) enforceable under
the laws of such jurisdiction (or the laws of the jurisdiction to
which the laws of such jurisdiction would refer as the applicable
governing law), (C) after giving effect to such change in
registration, the Lien of the Trust Indenture on the Owner Trustee's
right, title and interest in and to the Aircraft and the Lease shall
continue as a valid and duly perfected first priority security
interest and all filing, recording or other action necessary to
protect the same shall have been accomplished (or, if such opinion
cannot be given at the time of such proposed change in registration
because such change in registration is not yet effective, (1) the
opinion shall detail what filing, recording or other action is
necessary and (2) the Owner Trustee and the Indenture Trustee shall
have received a certificate from Lessee that all possible
preparations to accomplish such filing, recording and other action
shall have been done, and such filing, recording and other action
shall be accomplished and a supplemental opinion to that effect
shall be delivered to the Owner Trustee and the Indenture Trustee on
or prior to the effective date of such change in registration), (D)
it is not necessary, solely as a consequence of such change in
registration and without giving effect to any other activity of
the Owner Trustee, the Owner Participant or the Indenture
Trustee (or any Affiliate thereof), as the case may be, for the
Owner Trustee, the Owner Participant or the Indenture Trustee to
qualify to do business in such jurisdiction, (E) there is no
tort liability of the owner of an aircraft not in possession
thereof under the laws of such jurisdiction (it being agreed
that, in the event such latter opinion cannot be given in a form
satisfactory to the Owner Participant, such opinion shall be
waived if insurance reasonably satisfactory to the Owner
Participant is provided to cover such risk), and (F) (unless
Lessee shall have agreed to provide insurance covering the risk
of requisition of use of such Aircraft by the government of such
jurisdiction so long as such Aircraft is registered under the
laws of such jurisdiction) the laws of such jurisdiction require
fair compensation by the government of such jurisdiction payable
in currency freely convertible into Dollars for the loss of use
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of such Aircraft in the event of the requisition by such
government of such use.
In addition, as a condition precedent to any such change in registration,
Lessee shall furnish to the Owner Trustee and the Indenture Trustee an
Officer's Certificate to the effect that the insurance required by
Section 11 of the Lease shall be in full force and effect at the time of
such change in registration after giving effect to such change in
registration and that the new country of registry imposes aircraft
maintenance standards not materially different from those of the United
States, France, Germany, Japan, the Netherlands or the United Kingdom.
Lessee shall pay all costs, expenses, fees, recording and registration
taxes, including the reasonable fees and expenses of counsel to the Owner
Trustee, the Owner Participant and the Indenture Trustee, and other
charges in connection with any such change in registration.
(g) The Owner Participant represents and warrants to Lessee, the
Guarantor, the Indenture Trustee, the Pass Through Trustee, the
Subordination Agent, the Liquidity Provider and the Owner Trustee, in its
capacity as such and in its individual capacity, as follows:
(i) it is duly incorporated, validly existing and
in good standing under the laws of [_______________] and has the
corporate power and authority to carry on its present business
and operations and to own or lease its properties, and has the
corporate power and authority to enter into and to perform its
obligations under the Owner Participant Documents; this
Agreement and the other Owner Participant Documents have been
duly authorized, executed and delivered by it; and this
Agreement and each of the other Owner Participant Documents
constitute the legal, valid and binding obligations of the Owner
Participant enforceable against it in accordance with its
respective terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding
at law or in equity; and it has a tangible net worth (exclusive
of goodwill) greater than $50,000,000;
(ii) neither (A) the execution and delivery by the
Owner Participant of the Owner Participant Documents nor (B)
compliance by it with all of the provisions thereof, (x) will
contravene any law or order of any court or governmental
authority or agency applicable to or binding on the Owner
Participant (it being understood that no representation or
warranty is made with respect to laws, rules or regulations
relating to aviation or to the nature of the equipment owned by
the Owner Trustee other than such laws, rules or regulations
relating to the citizenship requirements of the Owner
Participant under applicable law), or (y) will contravene the
provisions of, or constitutes or has constituted or will
constitute a default under, or result in the creation of any
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Lien (other than Liens provided for in the Operative Documents)
upon any property of the Owner Participant under, its
certificate of incorporation or by-laws or any indenture,
mortgage, contract or other agreement or instrument to which the
Owner Participant is a party or by which it or any of its
property may be bound or affected;
(iii) no authorization or approval or other action
by, and no notice to or filing with, any governmental authority
or regulatory body (other than as required by the Federal
Aviation Act or the regulations promulgated thereunder) is
required for the due execution, delivery or performance by it of
the Owner Participant Documents;
(iv) there are no pending or, to its knowledge,
threatened actions or proceedings before any court or
administrative agency or arbitrator which would materially
adversely affect the Owner Participant's ability to perform its
obligations under this Agreement, the Tax Indemnity Agreement
and the Trust Agreement;
(v) neither the Owner Participant nor anyone
authorized by it to act on its behalf (it being understood that
in proposing, facilitating and otherwise taking any action in
connection with the financing contemplated hereby and agreed to
herein by the Owner Participant, Lessee has not acted as agent
of the Owner Participant) has directly or indirectly offered any
Secured Certificate or Certificate or any interest in and to the
Trust Estate, the Trust Agreement or any similar interest for
sale to, or solicited any offer to acquire any of the same from,
any Person; the Owner Participant's interest in the Trust Estate
and the Trust Agreement is being acquired for its own account
and is being purchased for investment and not with a view to any
resale or distribution thereof;
(vi) on the Delivery Date, the Trust Estate shall be
free of Lessor Liens (including for this purpose Liens which
would be Lessor Liens but for the proviso in the definition of
Lessor Liens) attributable to the Owner Participant; and
(vii) it is a Citizen of the United States (without
making use of a voting trust agreement, voting powers agreement
or similar arrangement).
(h) Each of First Security Bank, National Association, in its
individual capacity, and the Owner Participant covenants and agrees that
it shall not cause or permit to exist a Lessor Lien attributable to it
with respect to the Aircraft or any other portion of the Trust Estate.
Each of First Security Bank, National Association, in its individual
capacity, and the Owner Participant agrees that it will promptly, at its
own expense, take such action as may be necessary duly to discharge such
Lessor Lien attributable to it. Each of First Security Bank, National
Association, in its individual capacity, and the Owner Participant agrees
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to make restitution to the Trust Estate for any actual diminution of the
assets of the Trust Estate resulting from Lessor Liens (including for this
purpose Liens which would be Lessor Liens but for the proviso in the
definition of Lessor Liens) attributable to it. The Owner Participant
agrees to make restitution to the Trust Estate for any actual diminution
of the assets of the Trust Estate resulting from any Taxes or Expenses
imposed on the Trust Estate against which Lessee is not required to
indemnify the Trust Estate pursuant to Section 7 hereof.
(i) State Street Bank and Trust Company, in its individual capacity,
covenants and agrees that it shall not cause or permit to exist any Lien,
arising as a result of (A) claims against the Indenture Trustee not
related to its interest in the Aircraft or the administration of the Trust
Indenture Estate pursuant to the Trust Indenture, (B) acts of the
Indenture 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 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.
(j) [Intentionally Omitted].
(k) Each Loan Participant represents and warrants that the Secured
Certificate to be issued to it pursuant to the Trust Indenture is being
acquired by it for investment and not with a view to resale or
distribution (it being understood that such Loan Participant may pledge or
assign as security its interest in each Secured Certificate issued to it),
provided that the disposition of its property shall at all times be and
remain within its control, except that the Loan Participants may sell,
transfer or otherwise dispose of any Secured Certificate or any portion
thereof, or grant participations therein, in a manner which in itself does
not require registration under the Securities Act of 1933, as amended.
(l) The Indenture Trustee, and by acceptance of the Secured
Certificates the Certificate Holders, hereby (i) agree that for
purposes of the application of Section 1111(b) of Title 11 of the United
States Code or any successor provision or any comparable provisions that
the "debtor" in any bankruptcy proceeding involving the assets held or
administered pursuant to the Trust Agreement shall be strictly limited to
the Trust Estate (excluding the Excluded Payments) and (ii) make (and
hereby agree to make), with respect to the Trust Indenture Estate, the
election provided for in Section 1111(b)(2) of Title 11 of the United
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States Code. It is hereby agreed by the Indenture Trustee, and by the
acceptance of the Secured Certificates the Certificate Holders hereby
agree, that if (i) all or any part of the Trust Estate becomes the
property of, or the Owner Participant becomes, a debtor subject to the
reorganization provisions of the Bankruptcy Reform Act of 1978 or any
successor provision or any comparable proceeding, (ii) pursuant to such
reorganization provisions the Owner Trustee (in its individual capacity)
or the Owner Participant is required, by reason of the Owner Trustee (in
its individual capacity) or the Owner Participant being held to have
recourse liability to the holder(s) of the Secured Certificates or to the
Indenture Trustee, directly or indirectly (other than the recourse
liability of the Owner Participant under this Participation Agreement),
to make payment on account of any amount payable as principal or interest
on the Secured Certificates and (iii) any holder(s) of the Secured
Certificates or the Indenture Trustee actually receives any Excess
Payment (as hereinafter defined) which reflects any payment by the Owner
Trustee (in its individual capacity) or the Owner Participant on account
of (ii) above, then such holder(s) or the Indenture Trustee, as the case
may be, shall promptly refund to the Owner Trustee or the Owner
Participant (whichever shall have made such payment) such Excess Payment.
For purposes of this Section 8(l), "Excess Payment" means the amount by
which such payment exceeds the amount which would have been received by
the holder(s) of the Secured Certificates or the Indenture Trustee if the
Owner Trustee (in its individual capacity) or the Owner Participant had
not become subject to the recourse liability referred to in (ii) above.
Nothing contained in this Section 8(l) shall prevent the holder of a
Secured Certificate or the Indenture Trustee from enforcing any personal
recourse obligation (and retaining the proceeds thereof) of the Owner
Trustee (in its individual capacity) or the Owner Participant under this
Agreement or the Trust Indenture (and any exhibits or annexes thereto).
(m) State Street Bank and Trust Company represents, warrants and
covenants, in its individual capacity, to Lessee, the Guarantor, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent, the Liquidity
Provider and the Owner Participant as follows:
(i) it is a Massachusetts trust company duly incorporated,
validly existing and in good standing under the laws of
Massachusetts, is a Citizen of the United States (without making use
of any voting trust, voting powers agreement or similar arrangement),
will notify promptly all parties to this Agreement if in its
reasonable opinion its status as a Citizen of the United States
(without making use of any voting trust, voting powers agreement or
similar arrangement) is likely to change and will resign as Indenture
Trustee as provided in Section 8.02 of the Trust Indenture promptly
after it obtains actual knowledge that it has ceased to be such a
Citizen of the United States (without making use of a voting trust,
voting powers agreement or similar arrangement), and has the full
corporate power, authority and legal right under the laws of the
Commonwealth of Massachusetts and the United States pertaining
to its banking, trust and fiduciary powers to execute and
deliver each of this Agreement, the Trust Indenture and each
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other Operative Document to which it is a party and to carry out
its obligations under this Agreement, the Trust Indenture, each
other Operative Document to which it is a party and to
authenticate the Secured Certificates;
(ii) the execution and delivery by the Indenture
Trustee of the Indenture Trustee Documents and the
authentication of the Secured Certificates and the performance
by the Indenture Trustee of its obligations under the Indenture
Trustee Documents have been duly authorized by the Indenture
Trustee and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract
or other agreement to which it is a party or by which it is
bound;
(iii) this Agreement and each of the other Indenture
Trustee Documents constitute the legal, valid and binding
obligations of the Indenture Trustee enforceable against it in
accordance with their respective terms, except as the same may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(iv) there are no pending or, to its knowledge,
threatened actions or proceedings against the Indenture Trustee,
either in its individual capacity or as Indenture Trustee,
before any court or administrative agency which, if determined
adversely to it, would materially adversely affect the ability
of the Indenture Trustee, in its individual capacity or as
Indenture Trustee as the case may be, to perform its obligations
under the Operative Documents to which it is a party; and
(v) there are no Indenture Trustee's Liens on the
Aircraft or any portion of the Trust Estate.
(n) The Owner Participant will not, directly or indirectly,
sell, assign, convey or otherwise transfer any of its right, title or
interest in and to this Agreement, the Trust Estate or the Trust Agreement
or any proceeds therefrom to any person or entity, unless (i) the proposed
transferee is a "Transferee" (as defined below), (ii) Lessee shall have
(1) received an opinion (in form and substance reasonably satisfactory to
Lessee) of counsel to the Owner Participant (who shall be reasonably
satisfactory to Lessee) to the effect that such transfer will not result
in any risk of loss of tax benefits to, or any increase in the tax
liability of, Lessee and (2) received from the Owner Participant so
seeking to transfer such right, title or interest reasonably satisfactory
indemnification for any loss of tax benefits to, and increase in the tax
liability of, Lessee, and (iii) the Owner Participant sells, assigns,
conveys or otherwise transfers all of its right, title and interest in and
to this Agreement, the Trust Estate, the Trust Agreement and the proceeds
therefrom to a single entity. A "Transferee" shall mean either (A) a bank
or other financial institution with a combined capital, surplus and
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undivided profits of at least $50,000,000 or a corporation whose tangible
net worth is at least $50,000,000, exclusive of goodwill, in either case
as of the proposed date of such transfer, as determined in accordance with
generally accepted accounting principles, or (B) any subsidiary of such a
bank, financial institution or corporation, provided that such bank,
financial institution or corporation furnishes to the Owner Trustee, the
Indenture Trustee and Lessee a guaranty with respect to the Owner
Participant's obligations, in the case of the Owner Trustee, under the
Trust Agreement and, in the case of the Indenture Trustee and Lessee, the
Owner Participant's obligations hereunder, including but not limited to,
under Section 8(c) and Section 8(h) hereof, in form and substance
reasonably satisfactory to Lessee, the Owner Trustee and the Indenture
Trustee; provided, however, that any Transferee shall not be an airline,
a commercial air carrier, an air freight forwarder, an entity engaged in
the business of parcel transport by air or other similar person or a
corporation or other entity controlling, controlled by or under common
control with such an airline, a commercial air carrier, an air freight
forwarder, an entity engaged in the business of parcel transport by air
or other similar person. Each such transfer to a Transferee shall be
subject to the conditions that (M) upon giving effect to such transfer,
the Transferee is a Citizen of the United States (without making use of a
voting trust agreement, voting powers agreement or other similar
arrangement unless approved by Lessee), and has full power and authority
to enter into the transactions contemplated hereby, (N) the Transferee
has the requisite power and authority to enter into and carry out the
transactions contemplated hereby and such Transferee shall have delivered
to Lessee, the Owner Trustee and the Indenture Trustee an opinion of
counsel in form and substance reasonably satisfactory to such persons as
to the due authorization, delivery, legal, valid and binding effect and
enforceability of the agreement or agreements referred to in the next
clause with respect to the Transferee and any guaranty provided pursuant
to the provisions of this Section 8(n) as to the guarantor, (O) the
Transferee enters into an agreement or agreements, in form and substance
reasonably satisfactory to the Owner Trustee, Lessee and the Indenture
Trustee, whereby the Transferee confirms that it shall be deemed a party
to this Agreement and a party to the Trust Agreement and agrees to be
bound by all the terms of, and to undertake all of the obligations of the
transferor Owner Participant contained in, the Owner Participant
Documents (to the extent of the participation so transferred to it) and
makes the representations and warranties made by the Owner Participant
thereunder, (P) such transfer does not affect registration of the
Aircraft under the Federal Aviation Act, or any rules or regulations
promulgated thereunder or create a relationship which would be in
violation thereof or violate any provision of the Securities Act of 1933,
as amended, or any other applicable Federal or state law, (Q) the
transferor Owner Participant assumes the risk of any loss of Interest
Deductions, Amortization Deductions and MACRS Deductions, the risk of any
Inclusion Event (each as defined in the Tax Indemnity Agreement), and the
risk of any sales, use, value added or similar tax resulting from such
transfer, (R) the transferor Owner Participant pays all of the costs and
expenses (including, without limitation, fees and expenses of counsel)
incurred in connection with such transfer, including the costs and
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expenses of the Owner Trustee, the Indenture Trustee, Lessee and the Loan
Participants in connection therewith, and (S) the terms of the Operative
Documents and the Overall Transaction shall not be altered. Upon any
such transfer by the Owner Participant as above provided, the Transferee
shall be deemed the Owner Participant for all purposes hereof and of the
other Operative Documents and each reference herein to the transferor
Owner Participant shall thereafter be deemed for all purposes to be to
the Transferee and the transferor Owner Participant shall be relieved of
all obligations of the transferor Owner Participant under the Owner
Participant Documents arising after the date of such transfer except to
the extent fully attributable to or arising out of acts or events
occurring prior thereto and not assumed by the Transferee (in each case,
to the extent of the participation so transferred). If the Owner
Participant intends to transfer any of its interests hereunder, it shall
give 30 days prior written notice thereof to the Indenture Trustee, the
Owner Trustee and Lessee, specifying the name and address of the proposed
Transferee.
(o) Notwithstanding the provisions of Section 8(x) hereof, unless
waived by the Loan Participants, Lessee shall not be entitled to assume
the Secured Certificates on the date for purchase of the Aircraft pursuant
to Section 19(d) of the Lease if on such date an Event of Default shall
have occurred and be continuing or any condition or event shall exist
which, with the passage of time or giving of notice or both, would become
such an Event of Default.
(p) First Security Bank, National Association, and State Street Bank
and Trust Company, each in its individual capacity, agrees for the benefit
of Lessee to comply with the terms of the Trust Indenture which it is
required to comply with in its individual capacity.
(q) The Owner Participant represents and warrants that it is not
acquiring its interest in the Trust Estate or any interests represented
thereby with the assets of any "employee benefit plan" as defined in
Section 3(3) of ERISA or of any "plan" within the meaning of Section
4975(e)(1) of the Code. Each Loan Participant agrees that it will not
transfer any Secured Certificate (or any part thereof)to any entity
(except pursuant to Section 2.14 of the Trust Indenture) unless such
entity makes (or is deemed to have made) a representation and warranty as
of the date of transfer that either no part of the funds to be used by it
for the purchase and holding of such Secured Certificate (or any part
thereof) constitutes assets of any "employee benefit plan" or that such
purchase and holding will not result in a non-exempt prohibited
transaction (under Section 4975 of the Code and Section 406 of ERISA).
The Owner Participant agrees that it will not transfer any of its right,
title or interest in and to this Agreement, the Trust Estate or the Trust
Agreement or any proceeds therefrom to any entity unless such entity makes
(or is deemed to have made) a representation and warranty as of the date
of transfer that either no part of the funds to be used by it for the
purchase of such right, title and interest (or any part thereof)
constitutes assets of any "employee benefit plan" or that such transfer
will not result in a non-exempt prohibited transaction (under Section 4975
of the Code and Section 406 of ERISA). The Pass Through Trustee agrees
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that it will not agree to any amendment, modification or waiver of
Section 1.01(e)(i) of the Trust Supplement to each Pass Through Trust
Agreement specified in Schedule III hereto without the prior written
consent of the Owner Participant.
(r) Each Participant, the Owner Trustee and the Indenture Trustee
agrees for the benefit of the Manufacturer and Lessee that it will not
disclose or suffer to be disclosed the terms of the Purchase Agreement to
any third party except (A) as may be required by any applicable statute,
court or administrative order or decree or governmental ruling or
regulation or to any regulatory authorities having official jurisdiction
over them, (B) in connection with the financing of the Aircraft and the
other transactions contemplated by the Operative Documents (including any
transfer of Secured Certificates (including by way of participation or
assignment of an interest, provided such participant or assignee agrees to
hold such terms confidential to the same extent as herein provided) or the
Owner Participant's beneficial interest in the Trust Estate and any
exercise of remedies under the Lease and the Trust Indenture), (C) with
the prior written consent of the Manufacturer and Lessee, (D) to the Owner
Trustee's, the Indenture Trustee's and each Participant's counsel or
special counsel, independent insurance brokers or other agents who agree
to hold such information confidential, or (E) in the case of the Owner
Participant and/or the Owner Trustee, it may disclose so much of the
Purchase Agreement as has been assigned to the Owner Trustee under the
Purchase Agreement Assignment to bona fide potential purchasers of
the Aircraft.
(s) The Owner Trustee and the Owner Participant severally, not
jointly, represent and warrant that none of the funds made available by
the Pass Through Trustee pursuant to Section 1 hereof will be used for the
purpose of purchasing or carrying any "margin security" as defined in
Regulation U of the Board of Governors of the Federal Reserve System or
for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry such margin security or for any
other purpose which might cause the transaction contemplated by this
Agreement to constitute a "purpose credit" within the meaning of
Regulation X of the Board of Governors of the Federal Reserve System,
assuming that the proceeds were and are applied as contemplated by the
provisions of this Agreement.
(t) Each Loan Participant covenants and agrees that it shall not
cause or permit to exist a Loan Participant Lien attributable to it with
respect to the Aircraft or any other portion of the Trust Estate. Each
Loan Participant agrees that it will promptly, at its own expense, take
such other action as may be necessary duly to discharge such Loan
Participant Lien attributable to it. Each Loan Participant agrees to make
restitution to the Trust Estate for any actual diminution of the assets of
the Trust Estate resulting from such Loan Participant Lien attributable
to it.
(u) State Street Bank and Trust Company, in its individual capacity,
covenants and agrees that it shall not cause or permit to exist any
Indenture Trustee's Liens with respect to the Trust Indenture Estate or
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the Trust Estate. State Street Bank and Trust Company, in its individual
capacity, agrees that it will promptly, at its own expense, take such
action as may be necessary duly to discharge such Indenture Trustee's
Liens. State Street Bank and Trust Company, in its individual capacity,
agrees to make restitution to the Trust Estate for any actual diminution
of the assets of the Trust Indenture Estate or the Trust Estate resulting
from such Indenture Trustee's Liens.
(v) The Owner Trustee, in its individual capacity (except as
provided in clauses (iii) and (vii) below) and (but only as provided in
clauses (iii) and (vii) and, to the extent that it relates to the Owner
Trustee, clauses (ii), (ix) and (xi) below) as Owner Trustee, represents
and warrants to Lessee, the Guarantor, the Pass Through Trustee, the
Subordination Agent, the Liquidity Provider and the Owner Participant that:
(i) the Owner Trustee, in its individual capacity,
is a national banking association duly organized and validly
existing in good standing under the laws of the United States,
has full corporate power and authority to carry on its business
as now conducted, has the corporate power and authority to
execute and deliver the Trust Agreement, has the corporate power
and authority to carry out the terms of the Trust Agreement, and
has (assuming the authorization, execution and delivery of the
Trust Agreement by the Owner Participant), as Owner Trustee, and
to the extent expressly provided herein or therein, in its
individual capacity, the corporate power and authority to
execute and deliver and to carry out the terms of this
Agreement, the Trust Indenture, the Secured Certificates, the
Lease and each other Operative Document (other than the Trust
Agreement) to which it is a party;
(ii) the Owner Trustee in its trust capacity and, to
the extent expressly provided herein, in its individual
capacity, has duly authorized, executed and delivered this
Agreement, in its individual capacity, has duly authorized,
executed and delivered the Trust Agreement and in its trust
capacity, except as expressly provided therein, has duly
authorized, executed and delivered the other Owner Trustee
Documents and (assuming the due authorization, execution and
delivery of the Trust Agreement by the Owner Participant) this
Agreement and each of the other Owner Trustee Documents
constitute the legal, valid and binding obligations of the Owner
Trustee, in its individual capacity or as Owner Trustee, as the
case may be, enforceable against it in its individual capacity
or as Owner Trustee, as the case may be, in accordance with its
terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at law
or in equity;
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(iii) assuming the due authorization, execution and
delivery of the Trust Agreement by the Owner Participant, the
Owner Trustee has duly authorized, and on the Delivery Date
shall have duly issued, executed and delivered to the Indenture
Trustee for authentication, the Secured Certificates pursuant to
the terms and provisions hereof and of the Trust Indenture, and
each Secured Certificate on the Delivery Date will constitute
the valid and binding obligation of the Owner Trustee and will
be entitled to the benefits and security afforded by the Trust
Indenture in accordance with the terms of such Secured
Certificate and the Trust Indenture;
(iv) neither the execution and delivery by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the
case may be, of any Owner Trustee Document, nor the consummation
by the Owner Trustee, in its individual capacity or as Owner
Trustee, as the case may be, of any of the transactions
contemplated thereby, nor the compliance by the Owner Trustee,
in its individual capacity or as Owner Trustee, as the case may
be, with any of the terms and provisions thereof, (A) requires
or will require any approval of its stockholders, or approval or
consent of any trustees or Holders of any indebtedness or
obligations of it, or (B) violates or will violate its articles
of association or by-laws, or contravenes or will contravene any
provision of, or constitutes or will constitute a default under,
or results or will result in any breach of, or results or will
result in the creation of any Lien (other than as permitted
under the Operative Documents) upon its property under, any
indenture, mortgage, chattel mortgage, deed of trust,
conditional sale contract, bank loan or credit agreement,
license or other agreement or instrument to which it is a party
or by which it is bound, or contravenes or will contravene any
law, governmental rule or regulation of the United States of
America or the State of Utah governing the trust powers of the
Owner Trustee, or any judgment or order applicable to or binding
on it;
(v) no consent, approval, order or authorization
of, giving of notice to, or registration with, or taking of any
other action in respect of, any Utah state or local governmental
authority or agency or any United States federal governmental
authority or agency regulating the trust powers of the Owner
Trustee in its individual capacity is required for the execution
and delivery of, or the carrying out by, the Owner Trustee, in
its individual capacity or as Owner Trustee, as the case may be,
of any of the transactions contemplated hereby or by the Trust
Agreement, the Participation Agreement, the Trust Indenture, the
Lease or the Secured Certificates, or any other Operative
Document to which it is a party or by which it is bound, other
than any such consent, approval, order, authorization,
registration, notice or action as has been duly obtained, given
or taken or which is described in Section 7(a)(iv);
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(vi) there exists no Lessor Lien (including for this
purpose Liens which would be Lessor Liens but for the proviso in
the definition of Lessor Liens) attributable to the Owner
Trustee, in its individual capacity;
(vii) there exists no Lessor Lien (including for this
purpose Liens which would be Lessor Liens but for the proviso in
the definition of Lessor Liens) attributable to the Owner
Trustee, as lessor under the Lease;
(viii) there are no Taxes payable by the Owner
Trustee, either in its individual capacity or as Owner Trustee,
imposed by the State of Utah or any political subdivision
thereof in connection with the issuance of the Secured
Certificates, or the execution and delivery in its individual
capacity or as Owner Trustee, as the case may be, of any of the
instruments referred to in clauses (i), (ii), (iii) and (iv)
above, that, in each case, would not have been imposed if the
Trust Estate were not located in the State of Utah and First
Security Bank, National Association had not (a) had its
principal place of business in, (b) performed (in its individual
capacity or as Owner Trustee) any or all of its duties under the
Operative Documents in, and (c) engaged in any activities
unrelated to the transactions contemplated by the Operative
Documents in, the State of Utah;
(ix) there are no pending or, to its knowledge,
threatened actions or proceedings against the Owner Trustee,
either in its individual capacity or as Owner Trustee, before
any court or administrative agency which, if determined
adversely to it, would materially adversely affect the ability
of the Owner Trustee, in its individual capacity or as Owner
Trustee, as the case may be, to perform its obligations under
any of the instruments referred to in clauses (i), (ii), (iii)
and (iv) above;
(x) both its chief executive office, and the place
where its records concerning the Aircraft and all its interests
in, to and under all documents relating to the Trust Estate, are
located in Salt Lake City, Utah;
(xi) the Owner Trustee has not, in its individual
capacity or as Owner Trustee, directly or indirectly offered any
Secured Certificate or Certificate or any interest in or to the
Trust Estate, the Trust Agreement or any similar interest for
sale to, or solicited any offer to acquire any of the same from,
anyone other than the Pass Through Trustee and the Owner
Participant; and the Owner Trustee has not authorized anyone to
act on its behalf (it being understood that in arranging and
proposing the financing contemplated hereby and agreed to herein
by the Owner Trustee, Lessee has not acted as agent of the Owner
Trustee) to offer directly or indirectly any Secured
Certificate, any Certificate or any interest in and to the Trust
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Estate, the Trust Agreement or any similar interest for sale to,
or to solicit any offer to acquire any of the same from, any
Person;
(xii) it is a Citizen of the United States (without
making use of a voting trust agreement, voting powers agreement
or similar arrangements); and
(xiii) there has not occurred any event which
constitutes (or, to the best of its knowledge would, with the
passing of time or the giving of notice or both, constitute) an
Event of Default as defined in the Trust Indenture which has
been caused by or relates to the Owner Trustee, in its
individual capacity, and which is presently continuing.
(w) The Owner Participant covenants and agrees that
if (i) Lessee has elected pursuant to Section 9(a)(2) of the Lease to
terminate the Lease by causing the Aircraft to be sold pursuant to
Section 9(c) of the Lease and (ii) the Owner Trustee has, pursuant to
Section 9(c) of the Lease, given to Lessee written notice of Lessor's
election to retain title to the Aircraft and (iii) the Owner Trustee has
failed to make, on or before the Termination Date, any payment required
to be made by the Owner Trustee pursuant to Section 9(c) in connection
with its retention of title to the Aircraft, the Owner Participant will
indemnify Lessee for any losses, damages, costs or expenses of any kind
(including any additional rents paid by Lessee and any fees and expenses
of lawyers, appraisers, brokers or accountants) incurred as a consequence
of such failure by the Owner Trustee. The Owner Participant further
covenants and agrees to pay those costs and expenses specified to be paid
by the Owner Participant pursuant to Exhibit E to the Lease.
(x) Each of the Owner Participant, the Owner Trustee, the Indenture
Trustee and Lessee covenants and agrees that if Lessee elects to terminate
the Lease and purchase the Aircraft pursuant to Section 19(d) of the
Lease, then each of the parties will execute and deliver appropriate
documentation Transferring all right, title and interest in the Aircraft
to Lessee (including, without limitation, such bills of sale and other
instruments and documents as Lessee shall reasonably request to evidence
(on the public record or otherwise) such transfer and the vesting of all
right, title and interest in and to the Aircraft in Lessee), and if
Lessee, in connection with such purchase, elects to assume the obligations
of the Owner Trustee pursuant to the Trust Indenture and the Secured
Certificates each of the parties will execute and deliver appropriate
documentation permitting Lessee to assume such obligations on the basis of
full recourse to Lessee, maintaining the security interest in the Aircraft
created by the Trust Indenture, releasing the Owner Participant and the
Owner Trustee from all future obligations in respect of the Secured
Certificates, the Trust Indenture and all other Operative Documents and
all such other actions as are reasonably necessary to permit such
assumption by Lessee.
Notwithstanding the foregoing, Lessee shall not be
entitled to assume the obligations of the Owner Trustee in respect of the
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Secured Certificates unless Lessee causes to be delivered to the
Indenture Trustee an opinion of counsel to the effect that (i) the Lien
of the Trust Indenture continues to be a valid and duly perfected first
priority security interest in and to the Aircraft, (ii) the Indenture
Trustee will be entitled to the benefits of 11 U.S.C. Section 1110;
provided that the opinion required by subclause (ii) need only be given
if immediately prior to such assumption the Owner Trustee will have been
entitled to the benefits of 11 U.S.C. Section 1110 and (iii) the Pass
Through Trusts will not be subject to Federal income taxation and the
Certificate Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such assumption and will be subject to
Federal income tax in the same amounts, in the same manner, and at the
same time as would have been the case if such assumption had not
occurred.
(y)(A) Lessee will not consolidate with or merge into
any other corporation or convey, transfer or lease substantially all of
its assets as an entirety to any Person unless:
(i) the corporation formed by such consolidation or
into which Lessee is merged or the Person which acquires by
conveyance, transfer or lease substantially all of the assets of
Lessee as an entirety shall be a Certificated Air Carrier;
(ii) the corporation formed by such consolidation or
into which Lessee is merged or the Person which acquires by
conveyance, transfer or lease substantially all of the assets of
Lessee as an entirety shall execute and deliver to the Owner
Trustee, the Indenture Trustee and the Owner Participant an
agreement in form and substance reasonably satisfactory to the
Indenture Trustee and the Owner Participant containing an
assumption by such successor corporation or Person of the due
and punctual performance and observance of each covenant and
condition of this Agreement, the Lease, the Purchase Agreement
Assignment and the Tax Indemnity Agreement to be performed or
observed by Lessee;
(iii) immediately after giving effect to such
transaction, no Default or Event of Default under the Lease
shall have occurred and be continuing; and
(iv) Lessee shall have delivered to the Owner
Trustee, the Indenture Trustee and the Owner Participant a
certificate signed by the President, any Executive Vice
President, any Senior Vice President, the Treasurer or any Vice
President and by the Secretary or an Assistant Secretary of
Lessee, and an opinion of counsel reasonably satisfactory to the
Indenture Trustee and the Owner Participant, each stating that
such consolidation, merger, conveyance, transfer or lease and
the assumption agreement mentioned in clause (ii) above comply
with this subparagraph (A) of Section 8(y) and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
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Upon any such consolidation or merger or any such
conveyance, transfer or lease of substantially all of the assets of
Lessee as an entirety in accordance with this subparagraph (A) of
Section 8(y), the successor corporation or Person formed by such
consolidation or into which Lessee is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and
may exercise every right and power of, Lessee under this Agreement with
the same effect as if such successor corporation or Person had been named
as Lessee herein. No such conveyance, transfer or lease of substantially
all of the assets of Lessee as an entirety shall have the effect of
releasing Lessee or any successor corporation or Person which shall
theretofore have become such in the manner prescribed in this
subparagraph (A) of Section 8(y) from its liability in respect of any
Operative Document to which it is a party.
(B) Lessee shall at all times maintain its
corporate existence except as permitted by subparagraph (A) of this
Section 8(y).
(z) Lessee, at its expense, will take, or cause to
be taken, such action with respect to the recording, filing, re-recording
and refiling of the Lease, the Lease Supplement, the Trust Agreement, the
Trust Indenture, the Trust Supplement and any financing statements or
other instruments as are necessary to maintain, so long as the Trust
Indenture or the Lease is in effect, the perfection of the security
interests created by the Trust Indenture and any security interest that
may be claimed to have been created by the Lease and the interest of the
Owner Trustee in the Aircraft or will furnish to the Owner Trustee and
the Indenture Trustee timely notice of the necessity of such action,
together with such instruments, in execution form, and such other
information as may be required to enable them to take such action.
Lessee will notify the Owner Trustee, the Owner Participant and the
Indenture Trustee of any change in the location of its chief executive
office (as such term is used in Article 9 of the Uniform Commercial Code)
promptly after making such change or in any event within the period of
time necessary under applicable law to prevent the lapse of perfection
(absent refiling) of financing statements filed under the Operative
Documents.
(aa) Section 3 of the Lease contemplates that, under certain
circumstances, the Owner Participant will make certain recalculations of Basic
Rent, the Special Purchase Price, [the Initial Installment, the Remaining
Installments,] Stipulated Loss Value percentages and Termination Value
percentages, and the Owner Participant hereby agrees to make such
recalculations as and when contemplated by the Lease and subject to all the
terms and conditions of the Lease and promptly to take such further actions as
may be necessary or desirable to give effect to and to cause the Owner Trustee
to give effect to the provisions of Section 3 of the Lease.
(bb) The Owner Participant hereby agrees with Lessee that it will
pay, or cause to be paid, all costs and expenses that are for the account of
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the Owner Trustee pursuant to Section 5(d) of the Lease.
(cc) Each Loan Participant hereby represents, warrants and agrees
that it shall not transfer any interest in any Secured Certificate unless and
until the transferee agrees in writing (copies of which shall be provided by
the Indenture Trustee to Lessee, the Owner Trustee and the Owner Participant)
to make the representations contemplated to be made by a Loan Participant in
this Agreement and to be bound by the terms of this Agreement and the Trust
Indenture (including, without limitation, the representations and covenants set
forth in Sections 8(e), 8(k), 8(l), 8(q), and 8(t) hereof and this Section 8(cc)
and Sections 2.03, 2.14 and 4.03 of the Trust Indenture).
(dd) The Pass Through Trustee represents and warrants to Lessee, the
Guarantor, the Indenture Trustee, the Subordination Agent, the Liquidity
Provider, the Owner Participant and the Owner Trustee, in its capacity as such
and in its individual capacity, as follows:
(i) the Pass Through Trustee is a duly organized
national banking association, validly existing and in good
standing with the Comptroller of the Currency under the laws of
the United States, has the full power, authority and legal right
under the laws of the United States pertaining to its banking,
trust and fiduciary powers to execute and deliver each of the
Pass Through Trust Agreements, the Intercreditor Agreement and
this Agreement and to perform its obligations under the Pass
Through Trust Agreements, the Intercreditor Agreement and this
Agreement, and has its chief executive office located in
Hartford, Connecticut;
(ii) this Agreement, each of the Pass Through Trust
Agreements and the Intercreditor Agreement have been duly
authorized, executed and delivered by the Pass Through Trustee;
this Agreement, each of the Pass Through Trust Agreements and
the Intercreditor Agreement constitute the legal, valid and
binding obligations of the Pass Through Trustee enforceable
against it in accordance with their respective terms, except as
the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights
of creditors generally and by general principles of equity,
whether considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance
by the Pass Through Trustee of any of the Pass Through Trust
Agreements, the Intercreditor Agreement or this Agreement, the
purchase by the Pass Through Trustee of the Secured Certificates
pursuant to this Agreement, or the issuance of the Certificates
pursuant to the Pass Through Trust Agreements, contravenes any
law, rule or regulation of the State of Connecticut or any
United States governmental authority or agency regulating the
Pass Through Trustee's banking, trust or fiduciary powers or any
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judgment or order applicable to or binding on the Pass Through
Trustee and does not contravene or result in any breach of, or
constitute a default under, the Pass Through Trustee's articles
of association or by-laws or any agreement or instrument to
which the Pass Through Trustee is a party or by which it or any
of its properties may be bound;
(iv) neither the execution and delivery by the Pass
Through Trustee of any of the Pass Through Trust Agreements, the
Intercreditor Agreement or this Agreement, nor the consummation
by the Pass Through Trustee of any of the transactions
contemplated hereby or thereby, requires the consent or approval
of, the giving of notice to, the registration with, or the
taking of any other action with respect to, any Connecticut
governmental authority or agency or any federal governmental
authority or agency regulating the Pass Through Trustee's
banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Pass Through
Trustee imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by the Pass Through Trustee
of this Agreement, any of the Pass Through Trust Agreements or
the Intercreditor Agreement (other than franchise or other taxes
based on or measured by any fees or compensation received by the
Pass Through Trustee for services rendered in connection with
the transactions contemplated by any of the Pass Through Trust
Agreements), and there are no Taxes payable by the Pass Through
Trustee imposed by the State of Connecticut or any political
subdivision thereof in connection with the acquisition,
possession or ownership by the Pass Through Trustee of any of
the Secured Certificates (other than franchise or other taxes
based on or measured by any fees or compensation received by the
Pass Through Trustee for services rendered in connection with
the transactions contemplated by any of the Pass Through Trust
Agreements), and, assuming that for federal income tax purposes
the trusts created by the Pass Through Trust Agreements will not
be taxable as corporations, but rather, each will be
characterized as a grantor trust under subpart E, Part I, of
Subchapter J of the Code or as a partnership, such trusts will
not be subject to any Taxes imposed by the State of Connecticut
or any political subdivision thereof;
(vi) there are no pending or threatened actions or
proceedings against the Pass Through Trustee before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect
the ability of the Pass Through Trustee to perform its
obligations under this Agreement, the Intercreditor Agreement or
any Pass Through Trust Agreement;
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(vii) except for the issue and sale of the
Certificates, the Pass Through Trustee has not directly or
indirectly offered any Secured Certificate for sale to any
Person or solicited any offer to acquire any Secured
Certificates from any Person, nor has the Pass Through Trustee
authorized anyone to act on its behalf to offer directly or
indirectly any Secured Certificate for sale to any Person, or to
solicit any offer to acquire any Secured Certificate from any
Person; and the Pass Through Trustee is not in default under any
Pass Through Trust Agreement; and
(viii) the Pass Through Trustee is not directly or
indirectly controlling, controlled by or under common control
with the Owner Participant, the Owner Trustee, any Underwriter,
Lessee or the Guarantor.
(ee) The Subordination Agent represents and warrants to Lessee, the
Guarantor, the Indenture Trustee, the Pass Through Trustee, the Liquidity
Provider, the Owner Participant and the Owner Trustee, in its capacity as such
and in its individual capacity, as follows:
(i) the Subordination Agent is duly incorporated,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, and has the full corporate power,
authority and legal right under the laws of the Commonwealth of
Massachusetts and the United States pertaining to its banking,
trust and fiduciary powers to execute and deliver each of the
Liquidity Facilities, the Intercreditor Agreement and this
Agreement and to perform its obligations under this Agreement,
the Liquidity Facilities and the Intercreditor Agreement;
(ii) this Agreement, each of the Liquidity
Facilities and the Intercreditor Agreement have been duly
authorized, executed and delivered by the Subordination Agent;
this Agreement, each of the Liquidity Facilities and the
Intercreditor Agreement constitute the legal, valid and binding
obligations of the Subordination Agent enforceable against it in
accordance with their respective terms, except as the same may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance
by the Subordination Agent of each of the Liquidity Facilities,
the Intercreditor Agreement or this Agreement contravenes any
law, rule or regulation of the Commonwealth of Massachusetts or
any United States governmental authority or agency regulating
the Subordination Agent's banking, trust or fiduciary powers or
any judgment or order applicable to or binding on the
Subordination Agent and do not contravene or result in any
breach of, or constitute a default under, the Subordination
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Agent's articles of association or by-laws or any agreement or
instrument to which the Subordination Agent is a party or by
which it or any of its properties may be bound;
(iv) neither the execution and delivery by the
Subordination Agent of any of the Liquidity Facilities, the
Intercreditor Agreement or this Agreement nor the consummation
by the Subordination Agent of any of the transactions
contemplated hereby or thereby requires the consent or approval
of, the giving of notice to, the registration with, or the
taking of any other action with respect to, any Massachusetts
governmental authority or agency or any federal governmental
authority or agency regulating the Subordination Agent's
banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Subordination
Agent imposed by the Commonwealth of Massachusetts or any
political subdivision or taxing authority thereof in connection
with the execution, delivery and performance by the
Subordination Agent of this Agreement, any of the Liquidity
Facilities or the Intercreditor Agreement (other than franchise
or other taxes based on or measured by any fees or compensation
received by the Subordination Agent for services rendered in
connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities), and
there are no Taxes payable by the Subordination Agent imposed by
the Commonwealth of Massachusetts or any political subdivision
thereof in connection with the acquisition, possession or
ownership by the Subordination Agent of any of the Secured
Certificates (other than franchise or other taxes based on or
measured by any fees or compensation received by the
Subordination Agent for services rendered in connection with the
transactions contemplated by the Intercreditor Agreement or any
of the Liquidity Facilities);
(vi) there are no pending or threatened actions or
proceedings against the Subordination Agent before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect
the ability of the Subordination Agent to perform its
obligations under this Agreement, the Intercreditor Agreement or
any Liquidity Facility;
(vii) the Subordination Agent has not directly or
indirectly offered any Secured Certificate for sale to any
Person or solicited any offer to acquire any Secured
Certificates from any Person, nor has the Subordination Agent
authorized anyone to act on its behalf to offer directly or
indirectly any Secured Certificate for sale to any Person, or to
solicit any offer to acquire any Secured Certificate from any
Person; and the Subordination Agent is not in default under any
Liquidity Facility; and
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(viii) the Subordination Agent is not directly or
indirectly controlling, controlled by or under common control
with the Owner Participant, the Owner Trustee, any Underwriter,
Lessee or the Guarantor.
SECTION 9. Reliance of Liquidity Provider and Policy
Provider. Each of the parties hereto agrees and acknowledges that the
Liquidity Provider and the Policy Provider shall be a third party
beneficiary of each of the representations and warranties made herein by
such party, and that the Liquidity Provider and the Policy Provider may
rely on such representations and warranties to the same extent as if such
representations and warranties were made to the Liquidity Provider and
the Policy Provider directly. Lessee agrees and acknowledges that the
Liquidity Provider and the Policy Provider shall each be a third party
beneficiary of the indemnities contained in Section 7(c) hereof and that
the Policy Provider shall be a third party beneficiary of the indemnities
contained in Section 7(b) hereof, and may rely on such indemnities to the
same extent as if such indemnities were made to the Liquidity Provider
and the Policy Provider directly.
SECTION 10. Other Documents. Each of the Owner
Participant and the Owner Trustee hereby (A) agrees with Lessee and the
Loan Participants to comply with all of the terms of the Trust Agreement
(as the same may hereafter be amended or supplemented from time to time
in accordance with the terms thereof) applicable to it; (B) agrees with
Lessee and the Indenture Trustee not to amend, supplement or otherwise
modify any provision of the Trust Agreement in a manner adversely
affecting such party without the prior written consent of such party; and
(C) agrees with Lessee and the Loan Participants not to revoke the Trust
Agreement without the prior written consent of Lessee (so long as the
Lease remains in effect) and the Indenture Trustee (so long as the Lien
of the Trust Indenture remains in effect or there are any Secured
Certificates outstanding). Notwithstanding the foregoing, so long as the
Lease has not been terminated, the Indenture Trustee and the Owner
Trustee hereby agree for the benefit of Lessee that without the consent
of Lessee they will not (i) amend or modify Article III or IX of the
Trust Indenture, (ii) make any amendment which will affect the stated
principal amount or interest on the Secured Certificates or (iii) amend
or modify the provisions of Sections 2.05 or 10.14 of the Trust
Indenture. The Indenture Trustee and the Owner Trustee agree to promptly
furnish to Lessee copies of any supplement, amendment, waiver or
modification of any of the Operative Documents to which Lessee is not a
party. Notwithstanding anything to the contrary contained herein, in the
Trust Agreement or in any other Operative Document, the Owner Participant
will not consent to or direct a change in the situs of the Trust Estate
without the prior written consent of Lessee. Each Loan Participant
agrees that it will not take any action in respect of the Trust Indenture
Estate except through the Indenture Trustee pursuant to the Trust
Indenture or as otherwise permitted by the Trust Indenture.
SECTION 11. Certain Covenants of Lessee. Lessee
covenants and agrees with each of the Loan Participants, the Owner
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Participant, the Indenture Trustee and the Owner Trustee, in its capacity
as such and in its individual capacity as follows:
(a) Lessee will cause to be done, executed,
acknowledged and delivered all and every such further acts, conveyances
and assurances as the Owner Trustee, the Indenture Trustee or the Owner
Participant shall reasonably require for accomplishing the purposes of
this Agreement and the other Operative Documents; provided that any
instrument or other document so executed by Lessee will not expand any
obligations or limit any rights of Lessee in respect of the transactions
contemplated by any Operative Documents. Lessee, forthwith upon delivery
of the Aircraft under the Lease, shall cause the Aircraft to be duly
registered, and at all times thereafter to remain duly registered, in the
name of the Owner Trustee, except as otherwise required or permitted
hereunder or under the Lease, under the Federal Aviation Act, or shall
furnish to the Owner Trustee such information as may be required to
enable the Owner Trustee to make application for such registration, and
shall promptly furnish to the Owner Trustee such information as may be
required to enable the Owner Trustee to timely file any reports required
to be filed by it as the lessor under the Lease or as the owner of the
Aircraft with any governmental authority.
(b) Lessee will cause the Lease, all Lease
Supplements, all amendments to the Lease, the Trust Indenture, all
supplements and amendments to the Trust Indenture and this Agreement to
be promptly filed and recorded, or filed for recording, to the extent
permitted under the Federal Aviation Act, or required under any other
applicable law. Upon the execution and delivery of the FAA Bill of Sale,
the Lease, the Lease Supplement covering the Aircraft, the Trust
Supplement and the Trust Indenture shall be filed for recording with the
Federal Aviation Administration in the following order of priority;
first, the FAA Bill of Sale, second, the Lease, with the Lease Supplement
covering the Aircraft, the Trust Indenture and the Trust Supplement
attached, and third, the Trust Indenture, with the Trust Supplement
attached.
SECTION 12. Owner for Federal Tax Purposes. It is
hereby agreed among Lessee, the Owner Participant and the Owner Trustee
that for Federal income tax purposes the Owner Participant will be the
owner of the Aircraft to be delivered under the Lease and Lessee will be
the lessee thereof, and each party hereto agrees to characterize the
Lease as a lease for Federal income tax purposes.
SECTION 13. Certain Definitions; Notices; Consent to
Jurisdiction. (a) Except as otherwise defined in this Agreement, terms
used herein in capitalized form shall have the meanings attributed
thereto in the Lease. The term "Trust Office" shall have the meaning set
forth in the Trust Agreement. Unless the context otherwise requires, any
reference herein to any of the Operative Documents refers to such
document as it may be amended from time to time.
(b) All notices, demands, instructions and other
communications required or permitted to be given to or made upon any
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party hereto or to the Guarantor shall be in writing and shall be
personally delivered or sent by registered or certified mail, postage
prepaid, or by telecopier, or by prepaid courier service, and shall be
deemed to be given for purposes of this Agreement on the day that such
writing is delivered or sent to the intended recipient thereof in
accordance with the provisions of this Section 13(b). Unless otherwise
specified in a notice sent or delivered in accordance with the foregoing
provisions of this Section 13(b), notices, demands, instructions and
other communications in writing shall be given to or made upon the
respective parties hereto at their respective addresses (or to their
respective telecopier numbers) as follows: (A) if to Lessee, the
Guarantor, the Owner Trustee, the Pass Through Trustee, the Subordination
Agent, the Indenture Trustee or the Owner Participant, to the respective
addresses set forth below the signatures of such parties at the foot of
this Agreement, or (B) if to a subsequent Owner Participant, addressed to
such subsequent Owner Participant at such address as such subsequent
Owner Participant shall have furnished by notice to the parties hereto,
or (C) if to any subsequent Certificate Holder, addressed to such
Certificate Holder at its address set forth in the Secured Certificate
register maintained pursuant to Section 2.07 of the Trust Indenture.
(c) Each of the parties hereto (A) hereby
irrevocably submits itself to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and to
the non-exclusive jurisdiction of the Supreme Court of the State of New
York, New York County, for the purposes of any suit, action or other
proceeding arising out of this Agreement, the Lease, the Tax Indemnity
Agreement or any other Operative Document, the subject matter of any
thereof or any of the transactions contemplated hereby or thereby brought
by any party or parties thereto, or their successors or assigns, and (B)
hereby waives, and agrees not to assert, by way of motion, as a defense,
or otherwise, in any such suit, action or proceeding, to the extent
permitted by applicable law, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper, or that this Agreement, the Lease, the Tax
Indemnity Agreement or any other Operative Document or the subject matter
of any thereof or any of the transactions contemplated hereby or thereby
may not be enforced in or by such courts. Lessee hereby generally
consents to service of process at Cadwalader, Wickersham & Taft, 100
Maiden Lane, New York, New York 10038, Attention: Managing Attorney, or
such office of Lessee in New York City as from time to time may be
designated by Lessee in writing to the Owner Participant, the Owner
Trustee and the Indenture Trustee.
SECTION 14. Change of Situs of Owner Trust. The Owner
Participant agrees that if, at any time, the Trust Estate becomes subject
to any Taxes for which it is indemnified pursuant to Section 7(b) hereof
and if, as a consequence thereof, Lessee should request that the situs of
the trust be moved to another state in the United States from the state
in which it is then located, the situs of the trust may be moved with the
written consent of the Owner Participant (which consent shall not be
unreasonably withheld) and the Owner Participant will take whatever
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action may be reasonably necessary to accomplish such removal; provided
that (A) Lessee shall provide such additional tax indemnification as the
Owner Participant and the Indenture Trustee may reasonably request,
(B) the rights and obligations under the Operative Documents of the Owner
Participant and the Indenture Trustee shall not be altered as a result of
the taking of such action, (C) the lien of the Trust Indenture on the
Trust Indenture Estate shall not be adversely affected by such action,
(D) the Owner Participant and the Indenture Trustee shall have received
an opinion or opinions of counsel (satisfactory to the Owner Participant
and the Indenture Trustee), in scope, form and substance satisfactory to
the Owner Participant and the Indenture Trustee to the effect that (I)
the trust, as thus removed, shall remain a validly established trust,
(II) any amendments to the Trust Agreement necessitated by such removal
shall have been duly authorized, executed and delivered by the parties
thereto and shall constitute the valid and binding obligations of such
parties, enforceable in accordance with their terms, (III) such removal
will not result in the imposition of, or increase in the amount of, any
Tax for which Lessee is not required to indemnify the Owner Participant,
the Indenture Trustee, the Owner Trustee or the Trust Estate pursuant to
Section 7(b) hereof (taking into account any additional indemnification
provided by Lessee pursuant to clause (A) of this sentence), and (IV)
such removal will not result in any loss of Interest Deductions or MACRS
Deductions or an Inclusion Event (as defined in the Tax Indemnity
Agreement) with respect to which Lessee is not required to indemnify the
Owner Participant pursuant to Section 4 of the Tax Indemnity Agreement
(taking into account any additional indemnification provided by Lessee
pursuant to clause (A) of this sentence), (E) if such removal involves
the replacement of the Owner Trustee, the Indenture Trustee and the Owner
Participant shall have received an opinion of counsel to such successor
Owner Trustee in form and substance reasonably satisfactory to the
Indenture Trustee and to the Owner Participant covering the matters
described in the opinion delivered pursuant to Section 4(a)(xiii) hereof
and such other matters as the Indenture Trustee and the Owner Participant
may reasonably request, and (F) Lessee shall indemnify and hold harmless
the Owner Participant and the Indenture Trustee on a net after-tax basis
against any and all reasonable and actual costs and expenses including
reasonable counsel fees and disbursements, registration fees, recording
or filing fees and taxes incurred by the Owner Trustee, the Owner
Participant and the Indenture Trustee in connection with such change of
situs.
SECTION 15. Miscellaneous. (a) The Owner Participant
covenants and agrees that it shall not unreasonably withhold its consent
to any consent requested of the Owner Trustee, as Lessor, under the terms
of the Lease which by its terms is not to be unreasonably withheld by the
Owner Trustee, as Lessor.
(b) The representations, warranties, indemnities
and agreements of Lessee, the Guarantor, the Owner Trustee, the Indenture
Trustee, the Subordination Agent, the Pass Through Trustee and the Owner
Participant provided for in this Agreement, and Lessee's, the
Guarantor's, the Owner Trustee's, the Indenture Trustee's, the
Subordination Agent's, the Pass Through Trustee's and the Owner
-46-
<PAGE>
Participant's obligations under any and all thereof, shall survive the
making available of the respective Commitments by the Pass Through
Trustee and the Owner Participant, the delivery or return of the
Aircraft, the transfer of any interest of the Owner Participant in the
Trust Estate or the Aircraft or any Engine or the transfer of any
interest by any Loan Participant in any Secured Certificate or the Trust
Indenture Estate and the expiration or other termination of this
Agreement or any other Operative Document.
(c) This Agreement may be executed by the parties
hereto in separate 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. Neither this Agreement nor
any of the terms hereof may be terminated, amended, supplemented, waived
or modified, except by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement,
waiver or modification is sought; and no such termination, amendment,
supplement, waiver or modification shall be effective unless a signed
copy thereof shall have been delivered to the Indenture Trustee and the
Owner Trustee. The terms of this Agreement shall be binding upon, and
inure to the benefit of, Lessee and, subject to the terms of this
Agreement, its successors and permitted assigns, the Guarantor, the Pass
Through Trustee and its successors as Pass Through Trustee (and any
additional trustee appointed) under any of the Pass Through Trust
Agreements, the Owner Participant and, subject to the terms of this
Agreement, its successors and permitted assigns, each Certificate Holder
and its successors and registered assigns, the Indenture Trustee and its
successors as Indenture Trustee under the Trust Indenture and the Owner
Trustee and its successors as Owner Trustee under the Trust Agreement.
The terms of this Agreement shall inure to the benefit of the Liquidity
Provider, its successors and permitted assigns and to the Policy
Provider, its successors and assigns. THIS AGREEMENT 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 AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW
YORK.
(d) The parties hereto agree that all of the
statements, representations, covenants and agreements made by the Owner
Trustee (when made in such capacity) contained in this Agreement and any
agreement referred to herein 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 Agreement or such other agreements
to the contrary notwithstanding (except for any express provisions that
the Owner Trustee is responsible for in its individual capacity), no
recourse shall be had with respect to this Agreement or such other
agreements against the Owner Trustee 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 15(d) shall not be construed to
-47-
<PAGE>
prohibit any action or proceeding against any party hereto 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 15(d) shall be construed to limit the exercise and
enforcement in accordance with the terms of this Agreement or such other
agreements of rights and remedies against the Trust Estate. The
foregoing provisions of this Section 15(d) shall survive the termination
of this Agreement and the other Operative Documents.
(e) It is the intention of the parties hereto that
the Owner Trustee, as Lessor under the Lease, and the Indenture Trustee,
as assignee of such Owner Trustee's rights under the Lease pursuant to
the Trust Indenture, will be entitled to the benefits of 11 U.S.C.
Section 1110 in the event of any reorganization of Lessee under Chapter
11 of the Bankruptcy Code.
SECTION 16. Expenses. (a) Invoices and Payment. Each
of the parties hereto shall promptly submit to the Owner Trustee and
Lessee for their prompt approval (which shall not be unreasonably
withheld) copies of invoices in reasonable detail of the Transaction
Expenses for which it is responsible for providing information as they
are received (but in no event later than [________________]). The Owner
Participant agrees to transfer to the Owner Trustee promptly but in any
event no later than [______________] such amount as shall be necessary in
order to enable the Owner Trustee to pay Transaction Expenses. To the
extent of funds received by it, the Owner Trustee agrees to pay all
invoices of Transaction Expenses that have been approved by it and Lessee
promptly upon receipt thereof. Notwithstanding the foregoing, to the
extent that Transaction Expenses exceed [___]% of Lessor's Cost, Lessee
at its sole option shall have the right to pay directly any or all
Transaction Expenses which are in excess of [____]% of Lessor's Cost.
(b) Payment of Other Expenses. In the event that
the transaction contemplated by this Participation Agreement fails to
close as a result of the Owner Participant's failure to negotiate in good
faith or to comply with the terms and conditions upon which its
participation in the transaction was predicated, the Owner Participant
will be responsible for all of its fees and expenses, including but not
limited to the fees, expenses and disbursements of its special counsel.
SECTION 17. Refinancings.
(a) So long as no Event of Default shall have
occurred and be continuing, Lessee shall have the right to refinance all
(but not less than all) of the Secured Certificates no more than three
times by giving written notice to the Owner Participant and the Owner
Trustee that there be effected a voluntary redemption of the Secured
Certificates by the Owner Trustee, whereupon the Owner Participant agrees
to negotiate promptly in good faith to conclude an agreement with Lessee
as to the terms of such refinancing operation (including the terms of any
debt to be issued in connection with such refinancing); provided that no
such refinancing shall require an increase in the amount of the Owner
Participant's investment in the beneficial ownership of the Aircraft.
-48-
<PAGE>
Upon such agreement:
(1) within ten Business Days after the reaching of
such agreement, the Owner Participant will deliver to Lessee a
certificate of an authorized representative of the Owner Participant (the
"Refinancing Certificate") setting forth (i) the proposed date on which
the outstanding Secured Certificates will be redeemed, any new debt will
be issued and the other aspects of such refinancing will be consummated
(such date, the "Refinancing Date") and (ii) the following information
calculated pursuant to the provisions of paragraph (6) of this
Section 17(a): (A) subject to the limitations set forth in this
Section 17, the proposed adjusted debt/equity ratio, (B) the principal
amount of debt to be issued by the Owner Trustee on the Refinancing Date,
(C) the amount, if any, by which the Owner Participant's aggregate
investment in the beneficial interest in the Aircraft is to be decreased
and (D) the proposed revised schedules of Basic Rent percentages, debt
amortization, Special Purchase Price, [Initial Installment, Remaining
Installments,] Stipulated Loss Value percentages and Termination Value
percentages. The Refinancing Certificate shall not provide for a
debt/equity ratio of more than 4:1. Within fourteen days of its receipt
of the Refinancing Certificate, Lessee may demand a verification pursuant
to Exhibit E to the Lease of the information set forth in the Refinancing
Certificate. Upon the acceptance by Lessee of the accuracy of the
information set forth in the Refinancing Certificate (or the
determination pursuant to such verification procedures), as to the
debt/equity ratio, the principal amount of debt to be issued by the Owner
Trustee on the Refinancing Date and the revised Basic Rent percentages,
debt amortization, Special Purchase Price, [Initial Installment,
Remaining Installments,] Stipulated Loss Value percentages and
Termination Value percentages (such information, whether as set forth or
as so determined, the "Refinancing Information") the appropriate parties
will take the actions specified in paragraphs (2) through (5) below;
(2) the appropriate parties will enter into
appropriate documentation (which may involve an underwriting agreement in
connection with such sale) with the institution or institutions to be
named therein providing for (i) the issuance and sale by the Owner
Trustee to such institution or institutions on the Refinancing Date of
debt securities in an aggregate principal amount specified in the
Refinancing Information which amount shall be equal to the aggregate
principal amount of all Secured Certificates outstanding on the
Refinancing Date (such debt securities, the "New Debt") except that the
principal amount of New Debt may exceed the principal amount of all
outstanding Secured Certificates in connection with the first refinancing
under this Section 17, (ii) the application of the proceeds of the sale
of the New Debt to the redemption of all such Secured Certificates on the
Refinancing Date and (iii) the payment of the excess, if any, of such
proceeds over the amounts necessary to effect such redemption to the
Owner Trustee;
(3) Lessee shall give the notice to the Indenture
Trustee pursuant to Section 2.11 of the Trust Indenture, and Lessee and
the Owner Trustee will amend the Lease to provide that (i) Basic Rent
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<PAGE>
payable in respect of the period from and after the Refinancing Date
shall be as provided in the Refinancing Information and (ii) amounts
payable in respect of the Special Purchase Price, [Initial Installment,
Remaining Installments,] Stipulated Loss Value and Termination Value from
and after the Refinancing Date shall be as provided in the Refinancing
Information;
(4) the Owner Trustee will enter into an agreement
to provide for the securing thereunder of the New Debt in like manner as
the Secured Certificates and will enter into such amendments and
supplements to the Trust Indenture (or such new indenture or other
security agreement) as may be necessary to effect such refinancing;
(5) the Owner Participant shall pay all of the
expenses (other than those of Lessee) of such refinancing (including, but
not limited to, the fees, expenses and disbursements of counsel and any
placement or underwriting fees) and such expenses shall be treated as
Transaction Expenses; and
(6) when calculating any of the information
required to be set forth in a Refinancing Certificate, the Owner
Participant shall make such calculations in a manner which (A) maintains
the Owner Participant's Net Economic Return (except to the extent the
assumptions referred to in the definition of "Net Economic Return" have
been altered since the Delivery Date in connection with an adjustment to
Rents pursuant to Section 3(d) of the Lease or such assumptions are the
subject of the recalculations being conducted by the Owner Participant),
and (B) minimizes the Net Present Value of Rents to Lessee to the extent
possible consistent with clause (A).
(b) The Secured Certificates shall not be subject
to voluntary redemption by the Owner Trustee without the consent of
Lessee except as set forth in Section 2.14 of the Trust Indenture.
-50-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
NORTHWEST AIRLINES, INC.,
Lessee
By:_____________________________
Name:
Title:
Address: U.S. Mail
5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
Overnight Courier
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attn: Treasurer
Telecopy No.: (612) 726-0665
NORTHWEST AIRLINES CORPORATION,
Guarantor
By:_____________________________
Name:
Title:
Address: U.S. Mail
5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
Overnight Courier
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attn: Treasurer
Telecopy No.: (612) 726-0665
[__________________________],
Owner Participant
By:_______________________________
Name:
Title:
Address:
Attn:
Telecopy No.:
- Signature Page -
<PAGE>
STATE STREET BANK AND
TRUST COMPANY,
Indenture Trustee
By:________________________
Name:
Title:
Address: U.S. Mail
Corporate Trust Department
P.O. Box 778
Boston, Massachusetts 02102-0778
Overnight Courier
Corporate Trust Department
2 Avenue de Lafayette
Boston, Massachusetts 02111-1724
Telecopy No.: (617) 662-1462
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:
Address: 79 South Main Street
Salt Lake City, Utah 84111
Attn: Corporate Trust Department
Telecopy No.: (801) 246-5053
- Signature Page -
<PAGE>
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual capacity,
except as otherwise provided herein, but
solely as Pass Through Trustee,
Pass Through Trustee
By:________________________________________
Name:
Title:
Address: 225 Asylum Street, Goodwin Square
Hartford, CT 06103
Attn: Corporate/Muni Department
Telecopy No.: (860) 244-1889
STATE STREET BANK AND TRUST
COMPANY, not in its individual capacity,
except as otherwise provided herein, but
solely as Subordination Agent,
Subordination Agent
By:_________________________________________
Name:
Title:
Address: U.S. Mail
Corporate Trust Department
P.O. Box 778
Boston, Massachusetts 02102-0778
Overnight Courier
Corporate Trust Department
2 Avenue de Lafayette
Boston, Massachusetts 02111-1724
Telecopy No.: (617) 662-1462
- Signature Page -
<PAGE>
SCHEDULE I
Names and Addresses
Lessee: Northwest Airlines, Inc.
U.S. Mail
5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
Overnight Courier
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attn: Treasurer
Telecopy No.: (612) 726-0665
Wire Transfer
USBank, Minneapolis
ABA No. 091000022
Acct. No. 150250099440
Owner Participant: [___________________________]
Attn: _______________________
Telecopy No.: ________________
with a copy to:
[Address]
Attn: _______________________
Telecopy No.: ________________
Payments made
to the Owner Participant as
provided in Section 3.06
of the Trust Indenture shall
be made to:
[Bank]
[Address]
ABA No. ___________________
Account No. _________________
Account Name: _______________
Reference: ___________________
SCHEDULE I - PAGE 1
<PAGE>
Indenture Trustee: State Street Bank and Trust
Company
U.S. Mail
Corporate Trust Department
P.O. Box 778
Boston, Massachusetts 02102-0778
Overnight Courier
Corporate Trust Department
2 Avenue de Lafayette
Boston, Massachusetts 02111-1724
Telecopy No.: (617) 662-1462
Wire Transfer
State Street Bank and Trust Company
ABA No. 011-000-028
for credit to State Street
Bank and Trust Company
Acct. No. 9903-990-1
Attn: Corporate Trust Department
Reference: Northwest/NW [_____]
Owner Trustee: First Security Bank, National
Association
79 South Main Street
Salt Lake City, Utah 84111
Attn: Corporate Trust Department
Telecopy No.: (801) 246-5053
Payments made to the Owner
Trustee as provided in
Section 3(f) of the Lease shall be
made to:
First Security Bank, National
Association
ABA No. 124-0000-12
Acct. No. 051-0922115
Attn: Corporate Trust Department
Credit: Northwest/NW [____ _]
Loan Participant: State Street Bank and Trust
SCHEDULE I - PAGE 2
<PAGE>
Company of Connecticut, National
Association
225 Asylum Street, Goodwin Square
Hartford, CT 06103
Attn: Corporate/Muni Department
Telecopy No.: (860) 244-1889
SCHEDULE I - PAGE 3
<PAGE>
Subordination Agent: State Street Bank and Trust
Company
U.S. Mail
Corporate Trust Department
P.O. Box 778
Boston, Massachusetts 02102-0778
Overnight Courier
Corporate Trust Department
2 Avenue de Lafayette
Boston, Massachusetts 02111-1724
Telecopy No.: (617) 662-1462
SCHEDULE I - PAGE 4
<PAGE>
SCHEDULE II
Commitments
Purchasers Interest Rate Purchase Price Percentage of
and Maturity Lessor's Cost
Northwest Airlines
Pass Through Trust
2000-1G 8.072% Series G $[___________] [___________]%
Secured Certificates
due [___________]
2000-1C 9.179% Series C $[___________] [___________]%
Certificates due
[___________]
Owner Participant Equity Investment
[___________] $[___________] [___________]%
Total Commitments $[___________] 100%
SCHEDULE II -PAGE 1
<PAGE>
SCHEDULE III
Pass Through Trust Agreements
1. Pass Through Trust Agreement, dated as of June 3, 1999, among
Northwest Airlines Corporation, Northwest Airlines, Inc., and
State Street Bank and Trust Company of Connecticut, National
Association, as supplemented by Trust Supplement No. 2000-1G,
dated as of June 28, 2000 among Northwest Airlines, Inc.,
Northwest Airlines Corporation and State Street Bank and Trust
Company of Connecticut, National Association.
2.. Pass Through Trust Agreement, dated as of June 3, 1999, among
Northwest Airlines Corporation, Northwest Airlines, Inc., and
State Street Bank and Trust Company of Connecticut, National
Association, as supplemented by Trust Supplement No. 2000-1C,
dated as of June 28, 2000 among Northwest Airlines, Inc.,
Northwest Airlines Corporation and State Street Bank and Trust
Company of Connecticut, National Association.
SCHEDULE III -PAGE 1
<PAGE>
EXHIBIT A
TO PARTICIPATION
AGREEMENT
[NW ____ _]
SCHEDULE OF COUNTRIES FOR REREGISTRATION
Argentina Malta
Australia Mexico
Austria Morocco
Bahamas Netherlands
Belgium New Zealand
Brazil Norway
Canada Paraguay
Chile People's Republic of China
Denmark Philippines
Egypt Portugal
Finland Republic of China (Taiwan)
France Singapore
Germany South Africa
Greece South Korea
Hungary Spain
Iceland Sweden
India Switzerland
Indonesia Thailand
Ireland Trinidad and Tobago
Italy United Kingdom
Japan Uruguay
Luxembourg Venezuela
Malaysia
EXHIBIT A- PAGE-1
<PAGE>
Exhibit B-1 to Participation Agreement
--------------------------------------
[Form of Opinion of Simpson Thacher & Bartlett
special counsel for the Lessee and the Guarantor]
[________ ___, ____]
The Persons Listed on
Annex A hereto
Ladies and Gentlemen:
We have acted as counsel to Northwest Airlines Corporation, a
Delaware corporation ("NWA Corp."), and Northwest Airlines, Inc., a Minnesota
corporation (the "Company"), in connection with the issuance and sale of
(i) $476,319,000 aggregate principal amount of 8.072% Pass Through Trust
Certificates, Series 2000-1G (the "Class G Certificates") and
(ii) $45,882,000 aggregate principal amount of 9.179% Pass Through Trust
Certificates, Series 2000-1C (the "Class C Certificates" and, together with
the Class G Certificates, the "Certificates") pursuant to the Underwriting
Agreement, dated as of June 21, 2000 (the "Underwriting Agreement"), by and
among Credit Suisse First Boston Corporation, Morgan Stanley & Co.
Incorporated, Salomon Smith Barney Inc., Chase Securities Inc. and U.S.
Bancorp Piper Jaffray Inc., as underwriters, the Company and NWA Corp.
Capitalized terms used herein unless otherwise defined herein have the
respective meanings given them in the Underwriting Agreement.
In connection with this opinion we have examined the following:
(i) the Pass Through Trust Agreement dated as of June 3, 1999, by
and among NWA Corp., the Company and State Street Bank and Trust Company
of Connecticut, National Association ("State Street"), as trustee (the
"Trustee") (the "Basic Agreement");
(ii) the Trust Supplement No. 2000-1G, dated as of June 28, 2000,
to the Basic Agreement, by and among NWA Corp., the Company and the
Trustee (the Basic Agreement as so supplemented, the "2000-1G Pass
Through Trust Agreement"); and the Trust Supplement No. 2000-1C, dated
as of June 28, 2000, to the Basic Agreement, by and among NWA Corp., the
Company and the Trustee (the Basic Agreement as so supplemented, the
"2000-1C Pass Through Trust Agreement" and, together with the 2000-1G
Pass Through Trust Agreement, the "Pass Through Trust Agreements"; the
Pass Through Trust Agreement related to a Certificate being referred to
as the "Applicable Pass Through Trust Agreement");
(iii) the Intercreditor Agreement dated as of June 28, 2000 (the
"Intercreditor Agreement"), by and among the Trustee, Credit Suisse
<PAGE>
First Boston Corporation, New York branch (the "Liquidity Provider"),
State Street Bank and Trust Company, not in its individual capacity,
except as set forth therein, but solely as subordination agent (the
"Subordination Agent"), and MBIA Insurance Corporation;
(iv) the Revolving Credit Agreement, Class G Certificates and the
Revolving Credit Agreement, Class C Certificates (collectively, the
"Liquidity Facilities"), each dated as of June 28, 2000, by and between
the Subordination Agent and the Liquidity Provider; and
(v) the Indemnity Agreement, dated as of June 28, 2000, between
ABN AMRO Bank, N.V., and the Company.
Unless otherwise indicated, "Pass Through Documents" refers to the
documents, described in (i) and (ii) above.
In addition, we have examined, and have relied as to matters of
fact upon, the documents delivered to you at the closing, and upon originals
or copies, certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of officers and
representatives of the Company and NWA Corp., and have made such other and
further investigations, as we have deemed relevant and necessary as a basis
for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies, and the
authenticity of originals of such latter documents.
In addition, for purposes of this opinion we have assumed the
following:
(i) each of the Company and the Trustee has been duly incorporated
and, since the date of execution of each Pass Through Document, has been
validly existing and in good standing as a corporation and trust company,
respectively, under the laws of the jurisdiction of its incorporation and
qualification, respectively;
(ii) each of the Company and the Trustee has duly authorized,
executed and delivered each Pass Through Document to which it is a party;
(iii) each of the Company and the Trustee has full power,
authority and legal right to enter into and perform its respective
obligations under, and consummate the transactions contemplated by, each Pass
Through Document to which it is a party;
-2-
<PAGE>
(vi) the execution, delivery and performance of the Pass Through
Documents by the Company and the Trustee do not violate the laws of the
jurisdiction in which each entity is organized or any other applicable laws,
excepting the laws of the State of New York and the General Corporation Law
of the State of Delaware; and
(vii) the execution, delivery and performance of the Pass Through
Documents by the Company and the Trustee do not constitute a breach or
violation of any agreement or instrument which is binding upon such entity
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. The Basic Agreement and each Pass Through Trust Agreement
have been duly authorized, executed and delivered by NWA Corp. and,
assuming due authorization, execution and delivery thereof by the
Company and the Trustee, constitute valid and legally binding
obligations of NWA Corp., the Company, Holdings and the Trustee in
accordance with their terms.
2. The Basic Agreement has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
3. Assuming the Certificates have been duly authorized,
executed, authenticated and issued by the Trustee, upon payment and
delivery therefor in accordance with the Underwriting Agreement, the
Certificates will constitute valid and legally binding obligations of
the Trustee enforceable against the Trustee in accordance with their
terms and entitled to the benefits of the Applicable Pass Through Trust
Agreement.
4. No consent, approval, authorization, order, registration
or qualification of or with any Federal or New York governmental agency
or body or any Delaware governmental agency or body acting pursuant to
the Delaware General Corporation Law or, to our knowledge, any Federal
or New York court or any Delaware court acting pursuant to the Delaware
General Corporation Law is required for the valid authorization,
issuance and delivery of the Certificates, the valid authorization,
execution and delivery by the Company or NWA Corp. of, and the
performance by the Company and NWA Corp. of their respective
obligations under, the Basic Agreement, the Pass Through Trust
Agreements and the Underwriting Agreement, except such as have been
obtained and made under the Securities Act and the Trust Indenture Act
and such as may be required under state securities laws or the Federal
Aviation Act of 1958, as amended (the "Federal Aviation Act").
-3-
<PAGE>
Our opinions set forth in paragraphs 1 and 3 above are subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding
in equity or at law), an implied covenant of good faith and fair dealing and,
in the case of indemnification and contribution provisions therein,
considerations of public policy.
Our opinion is subject to the following additional qualifications:
(a) We express no opinion with respect to the rights of any party
to collect or enforce, any insurance maintained by the Company, any
proceeds thereof or payments or refunds of any premiums in respect
thereof.
(b) We express no opinion with respect to matters governed by the
Federal Aviation Act and the rules and regulations promulgated
thereunder.
(c) The remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State
of New York, and the Delaware General Corporation Law.
This opinion letter is rendered to you in connection with the above
described transactions. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by, or furnished to, any other person,
firm or corporation without our prior written consent.
Very truly yours,
SIMPSON THACHER & BARTLETT
-4-
<PAGE>
Annex A
-------
[_______________], as Owner Participant
First Security Bank, National Association, as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
MBIA Insurance Corporation
<PAGE>
Exhibit B-2 to Participation Agreement
--------------------------------------
[Form of Opinion of Cadwalader, Wickersham & Taft,
Special Counsel for the Lessee and the Guarantor]
[Date]
TO THE ADDRESSEES LISTED
ON SCHEDULE A HERETO
Re: Northwest Airlines, Inc. [NW ____ __]
Opinion of Special Counsel to Lessee and Guarantor
Gentlemen:
We have acted as special counsel for Northwest Airlines, Inc., a
Minnesota corporation ("Lessee") and Northwest Airlines Corporation, a
Delaware corporation ("Guarantor"), in connection with the transactions
contemplated by the Participation Agreement [NW ____ __], dated as of
[___________ ___, ___] (the "Participation Agreement"), among Lessee,
Guarantor, First Security Bank, National Association, as Owner Trustee under
the Trust Agreement referred to therein, State Street Bank and Trust Company
of Connecticut, National Association, as Pass Through Trustee under each of
the Pass Through Trust Agreements referred to therein, the Owner Participant
named therein, State Street Bank and Trust Company, as Subordination Agent,
and State Street Bank and Trust Company, as Indenture Trustee under the
Indenture referred to therein. Capitalized terms used herein but not defined
herein have the respective meanings given to them in or by reference to the
Participation Agreement, unless the context otherwise requires. We are
rendering this opinion letter to you at the request of Lessee pursuant to
Section 4(a)(xi) of the Participation Agreement.
In rendering the opinions set forth below, we have examined and
relied upon the originals, copies or specimens, certified or otherwise
identified to our satisfaction, of the Transaction Documents (as defined
below) and such certificates, corporate and public records, agreements and
instruments and other documents, including, among other things, the documents
delivered on the date hereof, as we have deemed appropriate as a basis for
the opinions expressed below. In such examination we have assumed the
genuineness of all signatures, the authenticity of all documents, agreements
and instruments submitted to us as originals, the conformity to original
documents, agreements and instruments of all documents, agreements and
instruments submitted to us as copies or specimens, the authenticity of the
originals of such documents, agreements and instruments submitted to us as
<PAGE>
copies or specimens, and the accuracy of the matters set forth in the
documents, agreements and instruments we reviewed. We have also assumed that
Lessee is an "air carrier" within the meaning of the Federal Aviation Act. As
to any facts material to such opinions that were not known to us, we have
relied upon statements and representations of officers and other
representatives of Lessee, Guarantor and the other parties to the Operative
Documents, and of public officials. Except as expressly set forth herein, we
have not undertaken any independent investigation (including, without
limitation, conducting any review, search or investigation of any public
files, records or dockets) to determine the existence or absence of the facts
that are material to our opinions, and no inference as to our knowledge
concerning such facts should be drawn from our reliance on the
representations and warranties of Lessee, Guarantor and the other parties to
the Operative Documents contained in the Participation Agreement and the
other Operative Documents (including, without limitation, in Sections 7 and 8
of the Participation Agreement) in connection with the preparation and
delivery of this letter.
In particular, we have examined and relied upon:
A. the Participation Agreement;
B. the Lease;
C. the Lease Supplement covering the Aircraft;
D. the Trust Agreement;
E. the Trust Supplement;
F. the Trust Indenture;
G. the Secured Certificates;
H. the Tax Indemnity Agreement;
I. the Purchase Agreement Assignment;
J. the Bill of Sale;
K. the FAA Bill of Sale; and
L. the Guarantee.
Items A to L above are referred to in this letter as the
"Transaction Documents". References in this letter to "Applicable Laws"
shall mean those laws, rules and regulations of the State of New York which,
in our experience, are normally applicable to transactions of the type
contemplated by the Transaction Documents. References in this letter to the
term "Governmental Authorities" means executive, legislative, judicial,
administrative or regulatory bodies of the State of New York. References in
this letter to the term "Governmental Approval" means any consent, approval,
license, authorization or validation of, or filing, recording or registration
with, any Governmental Authority pursuant to Applicable Laws.
We have also assumed that all documents, agreements and instruments
have been duly authorized, executed and delivered by all parties thereto,
that all such parties had the power and legal right to execute and deliver
-2-
<PAGE>
all such documents, agreements and instruments, and that such documents,
agreements and instruments are (other than with respect to Lessee and
Guarantor) valid, binding and enforceable obligations of such parties. As
used herein, "to our knowledge", "known to us" or words of similar import
mean the actual knowledge, without independent investigation, of any lawyer
in our firm actively involved in the transactions contemplated by the
Participation Agreement.
We express no opinion concerning the laws of any jurisdiction other
than the laws of the State of New York and the federal laws of the United
States of America.
Based upon and subject to the foregoing, and subject further to the
assumptions, limitations and qualifications set forth below, we are of the
opinion that:
1. The execution and delivery by Lessee of the Participation
Agreement, the Lease, the Lease Supplement covering the Aircraft, the Bill of
Sale, the FAA Bill of Sale, the Tax Indemnity Agreement and the Purchase
Agreement Assignment (collectively, the "Lessee Documents") and the
performance by Lessee of its obligations thereunder (a) do not require any
Governmental Approval to be obtained on the part of Lessee, except those that
have been obtained and, to our knowledge, are in effect, and those required
by the terms of the Operative Documents after the Delivery Date, and (b) do
not result in a violation of any provision of any Applicable Laws applicable
to Lessee.
2. The execution and delivery by Guarantor of its obligations
under the Guarantee and the performance by Guarantor of its obligations
thereunder (a) do not require any Governmental Approval to be obtained on the
part of Guarantor, except those that have been obtained and, to our
knowledge, are in effect, and those required by the terms of the Operative
Documents after the Delivery Date, and (b) do not result in a violation of
any provision of any Applicable Laws applicable to Guarantor.
3. Each of the Lessee Documents constitutes a legal, valid and
binding agreement of Lessee, enforceable against Lessee in accordance with
its terms and the Guarantee constitutes a legal, valid and binding agreement
of Guarantor enforceable against Guarantor in accordance with its terms, in
each case subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, receivership or other similar laws
relating to or affecting creditors' or lessors' rights generally, and to
general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity) and requirements of commercial
reasonableness, good faith and fair dealing, and to applicable laws which may
affect the remedies provided in the Lease, which laws, however, do not, in
our opinion, make the remedies provided in the Lease inadequate for the
-3-
<PAGE>
practical realization of the benefits provided thereby, except that no
opinion is expressed as to the amount or priority of any recovery under any
particular circumstances and, in particular, no opinion is expressed as to
the effect on such remedies of Section 1-201(37) of the Uniform Commercial
Code, as in effect in any jurisdiction, and except that the enforcement of
rights with respect to indemnification may be limited by considerations of
public policy.
4. Subject to the registration of the Aircraft with the Federal
Aviation Administration in the name of the Owner Trustee, and assuming the
due and timely filing or filing for recordation in accordance with the
provisions of the Federal Aviation Act of (A) the FAA Bill of Sale, (B) the
Lease, with the Lease Supplement covering the Aircraft, the Trust Indenture
and the Trust Supplement attached thereto and made a part thereof, (C) the
Trust Indenture, with the Trust Supplement attached thereto and made a part
thereof, (D) the Trust Agreement, and (E) the termination of the Mortgage,
with respect to such portion of the Aircraft as is covered by the recording
system established by the Federal Aviation Administration pursuant to Section
44107 of Title 49 of the United States Code by virtue of the same
constituting an "aircraft" or an "aircraft engine" as defined in the Federal
Aviation Act, no further filing or recording of any document (including any
financing statement with respect to the Lease under Article 9 of the Uniform
Commercial Code of Minnesota or Utah) is necessary in any applicable
jurisdiction within the United States in order (x) to establish the Owner
Trustee's title to such portion of the Aircraft as against Lessee or any
third parties or (y) to create and perfect the Indenture Trustee's security
interest in such portion of the Aircraft as against the Owner Trustee or any
third parties. With respect to such portion of the Aircraft, if any, as may
not be deemed to constitute an "aircraft" or "aircraft engine" as defined in
the Federal Aviation Act, except for the filing of financing statements in
the appropriate filing offices in the State of Utah and the State of
Minnesota (as to the filing of which we refer you to the opinion of corporate
counsel of Lessee, delivered to you on the date hereof) and the filing of
periodic continuation statements with respect to such filings, as and when
required, (x) under the federal laws of the United States and the laws of the
State of New York, no filing or recording of any document (including any
financing statement) is necessary under Article 9 of the Uniform Commercial
Code in order to establish the Owner Trustee's title in such portion of the
Aircraft as against Lessee and any third parties in any applicable
jurisdiction within the United States, and (y) under the federal laws of the
United States and the laws of the State of New York, no filing or recording
of any document (including any financing statement) is necessary or advisable
under Article 9 of the Uniform Commercial Code in order to create or perfect
the Indenture Trustee's security interest in such portion of the Aircraft as
against the Owner Trustee and any third parties in any applicable
jurisdiction within the United States.
-4-
<PAGE>
In rendering the opinions expressed herein, we have relied
exclusively, and without independent investigation, on the following opinions
of counsel (being furnished to you today) as to all matters stated in such
opinions (including the qualifications and exceptions therein): (i) the
opinion of Crowe & Dunlevy, P.C., referred to in Section 4(a)(xv) of the
Participation Agreement, and (ii) with respect to the opinions in paragraphs
4 above, the opinion of Ray, Quinney & Nebeker, referred to in Section
4(a)(xiii) of the Participation Agreement.
In addition, in rendering our opinions expressed herein, we have
assumed that except for the filings and recordations contemplated or referred
to herein, there are no filings or recordations with respect to the Aircraft
(other than the previous recordation of title in the name of Lessee [and the
Mortgage and a UCC-1 financing statement filed in the Office of the Secretary
of State of the State of Minnesota on [___________], filing number
[_________], naming Lessee as Debtor and [ _______________ ], as Secured
Party (as to which a UCC-3 termination statement is being filed on the date
hereof))], the Lease, the Lease Supplement covering the Aircraft, the Trust
Agreement, the Trust Supplement or the Trust Indenture with the Federal
Aviation Administration, or of Uniform Commercial Code financing statements
naming the Owner Trustee as a debtor in the filing offices of the Secretary
of State of the State of Utah or in any other filing office in the State of
Utah or in the filing offices of the Secretary of State of the State of
Minnesota or in any other filing office in the State of Minnesota. We have
also assumed that each of the documents and Uniform Commercial Code financing
statements referred to in Paragraph 4 above to be recorded with the Federal
Aviation Administration or filed with the appropriate filing office in the
State of Minnesota and the State of Utah was in due form for such recording
or filing and that each of the above-mentioned documents has been duly and
timely recorded or filed, as the case may be, under the Federal Aviation Act
and under the laws of the State of Minnesota and the State of Utah. Except
as expressly set forth in paragraph 4 above, we express no opinion as to the
right, title or interest in or to the Trust Estate or the Trust Indenture
Estate on the part of any Person. We express no opinion herein as to: (A)
any section of any Operative Document relating to concepts of "severability"
of certain provisions in such Operative Document; (B) any provision in any
Operative Document insofar as it constitutes: (i) a waiver of forum non
conveniens in respect of any court other than the Supreme Court of the State
of New York; or (ii) a waiver of the right to object to improper venue in
respect of any court other than the Supreme Court of the State of New York;
(C) the effect of any law of any jurisdiction (other than the State of New
York) wherein the Owner Trustee or any assignee of the Owner Trustee may be
located that limits rates of interest, fees or other charges that may be
charged by the Owner Trustee or such assignee; and (D) any provision
contained in the Operative Documents relating to jurisdiction or service of
process other than in respect of the courts of the State of New York or the
courts of the United States of America located in the State of New York.
-5-
<PAGE>
Moreover, the opinions expressed herein relating to the enforceability of any
agreement or instrument are subject to the further qualification that no
opinion is expressed as to the specific remedy or remedies that any court,
governmental authority, board of arbitration or arbitrator may grant, impose
or render under particular circumstances. In particular, no opinion is
expressed concerning the availability of equitable remedies, as such, for the
enforcement of any provision of any such agreement or instrument.
Finally, we call to your attention that, in connection with our
opinions expressed above, we do not purport to be experts with respect to, or
express any opinion concerning, aviation law or other laws, rules or
regulations applicable to the particular nature of the equipment acquired by
the Owner Trustee, as contemplated in the Participation Agreement, and which
may require the consent or approval of, the giving of notice to, the
registration with or the taking of any other action in respect of, any
federal or state governmental authority in connection with the operation or
maintenance of such equipment on an ongoing basis, in accordance with the
Owner Trustee's, Lessee's or Guarantor's undertakings in the Operative
Documents. Further, we do not purport to give any opinion regarding the
securities laws in any jurisdiction or with respect to the Employee
Retirement Income Security Act of 1974, as amended. All references in this
opinion letter to federal laws are to the federal laws of the United States
of America. We express no opinions except as expressly set forth herein, and
no opinion is implied or may be inferred beyond the opinions expressly stated
herein.
We are furnishing this opinion letter to you solely for your
benefit in connection with the transactions referred to herein. This opinion
letter is not to be relied upon, used, circulated, quoted or otherwise
referred to by any person or entity for any other purpose without our prior
written consent. In addition, we disclaim any obligation to update this
opinion letter for changes in fact or law, or otherwise.
Very truly yours,
-6-
<PAGE>
SCHEDULE A
----------
[____________], as Owner Participant
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
First Security Bank, National Association, as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
<PAGE>
Exhibit B-3 to Participation Agreement
--------------------------------------
[Form of Opinion of Northwest]
[Date]
TO THE ADDRESSEES LISTED
ON SCHEDULE A HERETO
Re: Northwest Airlines, Inc. [NW ____ __]
Opinion of Counsel to Lessee and Guarantor
Gentlemen:
I act as legal counsel for Northwest Airlines, Inc., a Minnesota
corporation ("Lessee"), and Northwest Airlines Corporation, a Delaware
corporation ("Guarantor"), and in such capacity am familiar with the
transactions contemplated by the Participation Agreement [NW ____ __], dated
as of [________ __, ___] (the "Participation Agreement"), among Lessee,
Guarantor, First Security Bank, National Association, as Owner Trustee under
the Trust Agreement referred to therein, State Street Bank and Trust Company
of Connecticut, National Association, as Pass Through Trustee under each of
the Pass Through Trust Agreements referred to therein, the Owner Participant
named therein, State Street Bank and Trust Company, as Subordination Agent,
and State Street Bank and Trust Company, as Indenture Trustee under the
Indenture referred to therein. Capitalized terms used herein without
definition shall have the respective meanings ascribed to them in or by
reference to the Participation Agreement, unless the context otherwise
requires. This opinion is delivered pursuant to Section 4(a)(xi) of the
Participation Agreement.
In rendering this opinion, I, or lawyers under my direction, have
examined, among other things, executed counterparts of the Participation
Agreement, the Lease, the Lease Supplement covering the Aircraft, the Trust
Agreement, the Trust Supplement, the Trust Indenture, the Secured
Certificates, the Tax Indemnity Agreement, the Purchase Agreement Assignment,
the Bill of Sale, the FAA Bill of Sale and the Guarantee. As to any facts
material to my opinions expressed herein, I have relied upon the
representations and warranties contained in the Operative Documents
(including, without limitation, in Sections 7 and 8 of the Participation
Agreement) and upon originals or copies (certified or otherwise identified to
my satisfaction) of such corporate records, documents and other instruments
as, in my judgment, are necessary or appropriate to enable me to render this
<PAGE>
opinion. I have assumed, and have not independently verified, the
genuineness of all signatures, the authenticity of all documents submitted to
me as originals, the conformity with the originals of all documents submitted
to me as copies, and the accuracy of all factual statements of parties made
on or before the date hereof (and have relied thereon as I have deemed
appropriate).
Based upon and subject to the foregoing, and subject further to the
assumptions, limitations and qualifications set forth below, it is my opinion
that:
1. Lessee is a corporation duly organized and validly existing
pursuant to the laws of the State of Minnesota, has the corporate power and
authority to carry on its business as now conducted and to enter into and
perform its obligations under the Participation Agreement, the Lease, the
Lease Supplement covering the Aircraft, the Bill of Sale, the FAA Bill of
Sale, the Tax Indemnity Agreement and the Purchase Agreement Assignment
(collectively, the "Lessee Documents"), and is duly qualified to transaction
business in each jurisdiction in which the conduct of its business requires
such qualification, except to the extent that the failure to be so qualified
would not have a material adverse effect on Lessee and its subsidiaries,
taken as a whole. Lessee is a Certificated Air Carrier. Guarantor is a
corporation duly organized and validly existing pursuant to the laws of the
State of Delaware and has the corporate power and authority to enter into and
perform its obligations under the Guarantee.
2. The execution, delivery and performance of the Lessee
Documents by Lessee and of the Guarantee by Guarantor have been duly
authorized by all necessary corporate action on the part of Lessee and
Guarantor, as the case may be, do not require any approval of stockholders of
Lessee or Guarantor, as the case may be, or, to my knowledge after due
inquiry and investigation, any approval or consent of any trustee of Holders
of any indebtedness or obligations of Lessee or Guarantor, as the case may be
(other than any such approval or consent as has been obtained), and the
execution and delivery of any thereof by Lessee or Guarantor, as the case may
be, nor the performance by Lessee or Guarantor, as the case may be, of its
obligations thereunder does not (A) violate any law, governmental rule or
regulation or, to my knowledge after due inquiry and investigation, judgment
or order applicable to or binding on Lessee or Guarantor, as the case may be,
or (B) to my knowledge after due inquiry and investigation, violate or result
in any breach of, or constitute any default under or result in the creation
of any Lien (other than Permitted Liens) upon any property of Lessee or
Guarantor, as the case may be, under, (i) Lessee's or Guarantor's corporate
charter or by-laws or (ii) any indenture, mortgage, chattel mortgage, deed of
trust, conditional sales contract, bank loan or credit agreement, or any
other agreement or instrument, or permit issued by any Minnesota or United
States governmental authority to which Lessee or Guarantor, as the case may
-2-
<PAGE>
be, is a party or by which Lessee or Guarantor, as the case may be, or its
properties may be bound or affected.
3. Neither the execution and delivery by Lessee of any of the
Lessee Documents or by Guarantor of the Guarantee, nor the performance by
Lessee or Guarantor of their respective obligations thereunder, requires the
consent or approval of, or the giving of notice to, or the registration with,
or the taking of any other action in respect of, any federal or state
governmental authority in the United States, except for (A) the registration
of the Aircraft (including the placement on board of the owner's copy of the
application for registration of the Aircraft and, if necessary, a flying time
wire), recordations, and other actions referred to in Paragraph 5 below, and
(B) such consents, approvals, notices, registrations and other actions
required by the terms of the Lessee Documents or the Guarantee after the
Delivery Date.
4. The Guarantee has been duly entered into and delivered by
Guarantor, and each of the Lessee Documents has been duly entered into and
delivered by Lessee.
5. Subject to the registration of the Aircraft with the Federal
Aviation Administration in the name of the Owner Trustee, and assuming the
due and timely filing for recordation in accordance with the provisions of
the Federal Aviation Act of (A) the FAA Bill of Sale, (B) the Lease, with the
Lease Supplement covering the Aircraft, the Trust Indenture and the Trust
Supplement attached thereto and made a part thereof, (C) the Trust Indenture,
with the Trust Supplement attached thereto and made a part thereof, (D) the
Trust Agreement, and (E) the termination of the Mortgage, with respect to
such portion of the Aircraft as is covered by the recording system
established by the Federal Aviation Administration pursuant to Section 44107
of Title 49 of the United States Code by virtue of the same constituting an
"aircraft" or an "aircraft engine" as defined in the Federal Aviation Act, no
further filing or recording of any document (including any financing
statement with respect to the Lease under Article 9 of the Uniform Commercial
Code of Minnesota or Utah) is necessary in any applicable jurisdiction within
the United States in order (x) to establish the Owner Trustee's title to such
portion of the Aircraft as against Lessee or any third parties or (y) to
create and perfect the Indenture Trustee's security interest in such portion
of the Aircraft as against the Owner Trustee or any third parties. With
respect to such portion of the Aircraft, if any, as may not be deemed to
constitute an "aircraft" or "aircraft engine," as defined in the Federal
Aviation Act, except for the filing of financing statements in the
appropriate filing offices in the State of Utah and the State of Minnesota,
which filing has been made, and the filing of periodic continuation
statements with respect to such filings, as and when required, (x) under
Minnesota law no filing or recording of any document (including any financing
statement) is necessary under Article 9 of the Uniform Commercial Code in
-3-
<PAGE>
order to establish the Owner Trustee's title in such portion of the Aircraft
as against Lessee and any third parties in any applicable jurisdiction within
the United States, and (y) under Minnesota law no filing or recording of any
document (including any financing statement) is necessary under Article 9 of
the Uniform Commercial Code in order to create or perfect the Indenture
Trustee's security interest in such portion of the Aircraft as against the
Owner Trustee and any third parties in any applicable jurisdiction within the
United States.
6. Under Minnesota law the transfer to the Owner Trustee of title
to the Aircraft and the contemporaneous lease of the Aircraft to Lessee under
circumstances involving fair consideration but not involving an ostensible
surrender of possession of the Aircraft by Lessee is not void against or
voidable by present or subsequent creditors of Lessee by reason thereof.
7. There are no legal or governmental proceedings pending or, to
the best of my knowledge, threatened to which Lessee or Guarantor or any of
their respective subsidiaries is a party or to which any of the properties of
Lessee or Guarantor or any of their respective subsidiaries is subject other
than those proceedings summarized in the Guarantor's publicly filed annual,
quarterly and other reports filed with the Securities and Exchange
Commission, and proceedings which I believe would not reasonably be expected
to have a material adverse effect on Lessee and its subsidiaries, taken as a
whole, or on the power or ability of Lessee to perform its obligations under
the Lessee Documents.
In rendering the opinions expressed herein, I have relied
exclusively, and without independent investigation, on the opinion (being
furnished to you today) of (i) Crowe & Dunlevy, P.C., referred to in Section
4(a)(xv) of the Participation Agreement and (ii) with respect to the opinion
in paragraph 5 above, Ray, Quinney & Nebeker, referred to in Section
4(a)(xiii) of the Participation Agreement, as to all matters stated in such
opinions, including the qualifications and exceptions therein.
In addition, in rendering the opinions expressed herein, I have
assumed that each agreement referred to herein constitutes the legal, valid
and binding obligation of each party thereto, other than Lessee and
Guarantor, enforceable against each such party in accordance with its terms.
I have also assumed that, except for the filings and recordations
contemplated or referred to herein, there are no filings or recordations with
respect to the Aircraft (other than the previous recordation of title in the
name of Lessee) [and the Mortgage and a UCC-1 financing statement filed in
the Office of the Secretary of State of the State of Minnesota on
[___________], filing number [_________], naming Lessee as Debtor and [
_______________ ], as Secured Party (as to which a UCC-3 termination
statement is being filed on the date hereof))], the Lease, the Lease
Supplement covering the Aircraft, the Trust Agreement, the Trust Supplement
-4-
<PAGE>
or the Trust Indenture with the Federal Aviation Administration not shown on
the indices of filed but unrecorded documents maintained by the Federal
Aviation Administration and made available to Crowe & Dunlevy, P.C., for
purposes of their aforesaid opinion, or of Uniform Commercial Code financing
statements naming the Owner Trustee as a debtor in the filing offices of the
Secretary of State of the State of Utah or in any other filing office in the
State of Utah or in the filing offices of the Secretary of State of the State
of Minnesota or in any other filing office in the State of Minnesota. I have
further assumed that each of the documents and Uniform Commercial Code
financing statements referred to in Paragraph 5 above to be recorded with the
Federal Aviation Administration or filed with the appropriate filing office
in the State of Utah was in due form for such recording or filing and that
each of such documents has been duly and timely recorded or filed, as the
case may be, under the Federal Aviation Act and under the laws of the State
of Utah.
I am qualified to practice law in the State of Minnesota, and I do
not purport to be an expert on, or to express any opinion concerning, any
laws except the laws of the State of Minnesota, the Delaware General
Corporation Law and the federal laws of the United States. Further, I do not
purport to give any opinion regarding the securities laws in any jurisdiction
or with respect to the Employee Retirement Income Security Act of 1974, as
amended. All references in this opinion to federal laws are to the Federal
laws of the United States.
I assume no obligations to supplement the opinions expressed herein
if any applicable laws change after the date hereof or if I become aware of
any facts that might change such opinions after the date hereof.
I express no opinions except as expressly set forth herein, and no
opinion is implied or may be inferred beyond the opinions expressly stated
herein. This opinion is being delivered for your sole benefit and no other
person or entity shall be entitled to rely upon this opinion without my
express written consent.
Very truly yours,
NORTHWEST AIRLINES, INC.
------------------------------------------
------------------------------------------
Associate General Counsel
-5-
<PAGE>
SCHEDULE A
----------
[_________________], as Owner Participant
First Security Bank, National Association, as Owner Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
State Street Bank and Trust Company, as Indenture Trustee
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
<PAGE>
[For A319's]
Exhibit C to Participation Agreement
------------------------------------
[Form of opinion of counsel to the Supplier and the Manufacturer]
[_____________, ____]
To the Addressees Listed
in the Attached Schedule
Re: Airbus A319-114 Aircraft
Manufacturer's Serial No. [________]
Registration No. N[_____] (the "Aircraft")
Dear Sirs:
We have acted as special French counsel for Airbus Industrie G.I.E.
("Airbus") and AVSA S.A.R.L. ("AVSA") in connection with the sale of the
Aircraft by AVSA to Northwest Airlines, Inc. ("Northwest").
We have examined a facsimile copy of:
(a) an executed Manufacturer Consent and Agreement to Assignment of
Warranties [NW _____], dated [______________], made by Airbus;
(b) an executed Supplier Consent and Agreement to Assignment of
Warranties [NW ______], dated [______________], made by AVSA;
(c) a document executed both in the English language as "French Pledge
Agreement" and in the French language as "Convention de
Nantissement de Creances" (collectively referred to as the
"Convention de Nantissement de Creances"), dated the date hereof
made between First Security Bank, National Association, as Owner
Trustee and State Street Bank and Trust Company, as Indenture
Trustee;
(d) a Bill of Sale dated [___________] executed by AVSA in favour of
Northwest; and
(e) an FAA Bill of Sale dated [___________] executed by AVSA in favour
of Northwest;
(documents (a) through (e) hereinafter referred to as the "Documents").
<PAGE>
Based on the foregoing, and such other documents, records and other
instruments as we have deemed it necessary or appropriate for the purposes of
this opinion, and assuming the Document to have been duly executed by the
parties thereto, we are of the opinion that, subject to the qualifications
set out below:
1. Airbus is a groupement d'interet economique duly organized and existing
under the laws of the French Republic, and has the power and authority
to carry on its business as now conducted. The present members of
Airbus are (i) Aerospatiale Matra, (ii) Daimler Chrysler Aerospace
Airbus, (iii) BAE Systems (Operations) Limited and (iv) Construcciones
Aeronauticas S.A., and each of such corporations is, without the need to
proceed against any collateral security for the indebtedness of Airbus
or to take any other legal action or process (except for service on
Airbus by huissier of notice to perform and subsequent failure by Airbus
to do so), jointly and severally liable with the other members for the
debts of Airbus arising out of obligations contracted by Airbus while
such corporation is a member of Airbus, including those arising under
each Document, and will remain so liable even after such corporation
ceases to be a member of Airbus after such Document is entered into;
provided such Document is not modified without its consent after it has
ceased to be a member.
2. AVSA is a societe a responsabilite limitee duly established and existing
under the laws of the French Republic and has the power and authority to
carry on its business as now conducted.
3. Each of Airbus and AVSA has full power and authority to enter into and
to execute, deliver and perform its obligations under those of the
Documents to which it is a party; such obligations are legal, valid and
binding upon them, respectively, are enforceable in accordance with
their respective terms and rank pari passu with the other unsecured
obligations of Airbus or AVSA, as the case may be.
4. Assuming that under New York law, the Indenture Trustee would be
entitled to take proceedings in its own name and on its own account to
recover from the Owner Trustee the full amount of all amounts secured by
the Convention de Nantissement de Creances, the Convention de
Nantissement de Creances (i) duly creates for the benefit of the
Indenture Trustee the security interests which the Convention de
Nantissement de Creances purports to create and the Indenture Trustee is
entitled to the benefits and security afforded thereby (ii) subject to
the registration and "huissier" requirements of paragraph 9(d) hereof
and the observation set forth in paragraph 9(f) hereof, and with respect
to non-monetary claims, should be effective as against Airbus, AVSA and
third parties to perfect the pledge of the obligations of Airbus and
AVSA that are the subject of the Convention de Nantissement de Creances
-2-
<PAGE>
and (iii) subject to the registration and "huissier" requirements of
paragraph 9(d) hereof, and with respect to monetary claims, would be
effective as against Airbus, AVSA and third parties to perfect the
pledge of the obligations of Airbus and AVSA that are the subject of the
Convention de Nantissement de Creances.
5. All actions, authorizations, approvals, consents, conditions and things
required at law to be taken, fulfilled and done to authorize the
execution, delivery and performance by Airbus and AVSA of those of the
Documents to which they respectively are party have been taken,
obtained, fulfilled and done; and no consents under any exchange control
laws, rules or regulations of the French Republic are necessary in
connection therewith.
6. Neither the execution and delivery and performance of the Documents to
which Airbus and AVSA respectively are a party, nor the consummation of
the transactions contemplated thereby, contravenes or violates any law,
judgment, governmental rule, regulation or order applicable to or
binding on Airbus or AVSA.
7. No French value added tax was due upon the transfer of title in the
Aircraft from AVSA to Northwest.
8. Under the laws of the French Republic, Airbus and AVSA are subject to
private commercial law and to suit, and neither Airbus nor AVSA, nor
their respective properties have any immunity from the jurisdiction of
any court or any legal process (whether through service of notice,
attachment prior to notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise), except that, with respect to
Airbus:
(a) to the extent that Airbus occupies or possesses any property by
virtue of any license or grant from the French State, such property
and the title of Airbus thereto may be immune from suit or
execution on the grounds of sovereignty, and
(b) suit and execution against Airbus or its property may be affected
by action taken by the French public authorities in the interests
of national defense or on the occurrence of exceptional
circumstances of paramount importance to the national interest of
France, as such concept is understood under the Constitution, laws
and regulations of France.
9. In connection with the obligations of Airbus and AVSA under the
Documents, this opinion must be read subject to the following
qualifications and observations as to French law:
-3-
<PAGE>
(a) the remedy of specific performance may not be available in a French
court;
(b) the enforcement of any of the Documents may be limited by
applicable bankruptcy, insolvency, or similar arrangements, or by
moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally;
(c) in respect of payment obligations, a French court has power under
Article 1244-1 of the French Civil Code to grant time to a debtor
(not in excess of two years), taking into account the position of
the debtor and the economic circumstances;
(d) in order to ensure the validity as against third parties of the
pledge ("nantissement") created by the "Convention de Nantissement
de Creances" in accordance with the provisions of Article 2075 of
the French Civil Code, it is necessary for the "Convention de
Nantissement de Creances" to be registered with the French tax
administration, involving payment of a stamp duty of a nominal
amount. In addition, the "nantissement" created by the "Convention
de Nantissement de Creances" will need to be served on each of
Airbus and AVSA by "huissier", in accordance with the provisions of
Article 2075 of the French Civil Code. We have been instructed by
the Indenture Trustee to carry out the above formalities on its
behalf, which we intend to do on receipt of the executed originals
of the Convention de Nantissement de Creances. We anticipate that
there will be no difficulty in accomplishing these formalities;
(e) in the event of any proceedings being brought in a French court in
respect of a monetary obligation expressed to be payable in a
currency other than French Francs or euros, a French court would
probably give judgment expressed as an order to pay, not such
currency, but its French Franc or euro equivalent at the time of
payment or enforcement of judgment. With respect to a bankruptcy,
insolvency, liquidation, moratorium, reorganization, reconstruction
or similar proceedings, French law may require that all claims or
debts be converted into French Francs or euros at an exchange rate
determined by the court at a date related thereto, such as the date
of commencement of a winding-up;
(f) pledges over non monetary claims are unusual under French law. In
principal, pledges over claims of this type should be effective
against Airbus, AVSA and third parties but in the absence of case
law, there is a lack of certainty about the Pledge being effective;
(g) a determination or certificate as to any matter provided for in the
Documents might be held by a French court not to be final,
-4-
<PAGE>
conclusive or binding, if such determination or certificate could
be shown to have an unreasonable, incorrect or arbitrary basis or
not to have been given or made in good faith;
(h) claims may become barred by effluxion of time or may be or become
subject to defense of set-off or counterclaim;
(i) a French court may stay proceedings if concurrent proceedings are
being brought elsewhere;
(j) we express no opinion as to whether any provision in the Documents
conferring a right of set-off or similar right would be effective
against a liquidator or a creditor; and
(k) our opinion as to the enforceability of the Documents relates only
to their enforceability in France in circumstances where the
competent French court has and accepts jurisdiction. The term
"enforceability" refers to the legal character of the obligations
assumed by the parties under the documents, i.e., that they are of
a character which French law enforces or recognizes. It does not
mean that the Documents will be enforced in all circumstances or in
foreign jurisdictions or by or against third parties or that any
particular remedy will be available.
In rendering the foregoing opinions, we have assumed that the Documents,
other than the Convention de Nantissement de Creances, constitute the legal,
valid and binding obligations of the parties under New York law.
We are qualified as French Avocats.
No opinion is expressed herein as to laws other than the laws of the French
Republic as of the date hereof. The opinion is for your use and that of no
one else, and is limited to (i) the matter specifically mentioned herein, and
(ii) the purpose set out above.
Yours sincerely,
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<PAGE>
SCHEDULE
--------
Northwest Airlines, Inc.
Northwest Airlines Corporation
First Security Bank, National Association, not in its individual capacity but
solely as Owner Trustee
State Street Bank and Trust Company, not in its individual capacity but
solely as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
[_________________], as Owner Participant
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
<PAGE>
[For 757's]
Exhibit C to Participation Agreement
------------------------------------
[Form of opinion of in-house counsel to the Manufacturer]
_____________, ____
To the Addressees Listed
in the Attached Schedule
Subject: One Boeing Model 757-251 Aircraft
Bearing Manufacturer's Serial No. ________
Ladies and Gentlemen:
I am an attorney employed by The Boeing Company ("Boeing") and I am licensed
to practice law in the State of Washington. As such, I have represented
Boeing in connection with the sale of the Boeing Model 757-251 aircraft
bearing Manufacturer's Serial No. _________ (including the engines installed
thereon but excluding equipment furnished by Northwest Airlines Inc.
("Northwest") (the "Aircraft")), pursuant to Purchase Agreement No. 1631
between Boeing and Northwest, dated December 1, 1989, as subsequently amended
(the "Purchase Agreement") and as assigned by the Purchase Agreement
Assignment [NW ____ _], dated as of [______] with respect to the Aircraft
between Northwest, as Assignor, and First Security Bank, National
Association, not in its individual capacity but solely as Owner Trustee, as
Assignee (the "Purchase Agreement Assignment").
For the purpose of this opinion, I have examined and relied upon originals,
or copies certified to my satisfaction, of the Purchase Agreement and of the
Consent and Agreement [NW ____ _], dated as of [_____] to the Purchase
Agreement Assignment executed by Boeing (the "Consent and Agreement").
I have also examined such other documents and records as I have deemed
relevant or necessary for the purpose of giving this opinion. Based upon
such examination, I am of the opinion that:
(a) Boeing is a corporation duly incorporated, validly existing, and in
good standing under the laws of the State of Delaware.
(b) The Purchase Agreement and the Consent and Agreement have been duly
authorized, executed and delivered by, and constitute the legal, valid, and
binding obligations of Boeing enforceable against it in accordance with the
<PAGE>
respective terms thereof, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting the enforcement
of creditors' rights in general and except as the enforceability of such
obligations may be subject to general principles of equity.
(c) Boeing has the full power, authority, and legal right to enter into
and perform its obligations under the Purchase Agreement and the Consent and
Agreement and Boeing's execution, performance, and delivery of such documents
have been duly authorized by all necessary corporate action, and do not
contravene the Restated Certificate of Incorporation or by-laws of Boeing, or
any indenture, mortgage, contract, instrument, or other agreement, in each
case known to me, to which Boeing is a party or by which it or any of its
properties is bound.
With respect to the conclusions set forth herein, I express no opinion as to
any laws other than the laws of the State of Washington, the corporate laws
of the State of Delaware, and the federal laws of the United States.
Very truly yours,
__________________
Counsel
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<PAGE>
SCHEDULE
--------
Northwest Airlines, Inc.
Northwest Airlines Corporation
First Security Bank, National Association, not in its individual capacity but
solely as Owner Trustee
State Street Bank and Trust Company, not in its individual capacity but
solely as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
[_________________], as Owner Participant
Standard & Poor's Ratings Service
Moody's Investors Service, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
<PAGE>
Exhibit D to Participation Agreement
------------------------------------
[Form of Opinion of Ray, Quinney & Nebeker]
[__________ ___, ____]
TO THE ADDRESSEES LISTED
ON SCHEDULE A HERETO:
Re: Northwest Airlines, Inc. [NW ]
Dear Sir or Madam:
We have acted as special counsel for First Security Bank, National
Association, a national banking association, in its individual capacity
("First Security") and in its capacity as trustee (the "Owner Trustee") under
the Trust Agreement [NW ____ __] dated as of [____________] (the "Trust
Agreement") between First Security and [________________], as beneficiary
(the "Owner Participant"), in connection with the transactions contemplated
by the Participation Agreement (as defined below). Except as otherwise
defined herein, the terms used herein shall have the meanings specified in,
or by reference in, Section 13 of the Participation Agreement [NW ____ __],
dated as of [____________] among the Owner Participant, First Security, not
in its individual capacity except as provided therein, but as Owner Trustee,
Northwest Airlines, Inc., as Lessee, Northwest Airlines Corporation, as
Guarantor, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity except as expressly provided
therein, but solely as Pass Through Trustee under each of the Pass Through
Agreements, State Street Bank and Trust Company, as Subordination Agent and
State Street Bank and Trust Company, as Indenture Trustee (the "Participation
Agreement"). This opinion is furnished pursuant to Section 4(a)(xiii) of the
Participation Agreement.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records and
other instruments as we have deemed necessary or advisable for the purpose of
rendering this opinion.
Based upon the foregoing, we are of the opinion that:
(1) First Security is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States, is a "citizen of the United States" within the meaning of
Section 40102(a)(15) of the Act and has the full power and authority to
<PAGE>
enter into and perform its obligations under the Trust Agreement and
each other Operative Document to which it, in its individual capacity or
as Owner Trustee, as the case may be, is a party and, as Owner Trustee,
to issue, execute, and deliver and perform the Secured Certificates.
(2) The Owner Trustee is the duly appointed trustee under the
Trust Agreement and the Trust Agreement creates a legal and valid trust
under the laws of the State of Utah; the trust created by the Trust
Agreement has been duly created and exists for the benefit of the Owner
Participant, and the Trust Agreement creates for the benefit of the
Owner Participant the rights and interests in the Trust Estate which the
Trust Agreement by its terms purports to create; and assuming the Trust
Agreement was properly authorized, executed and delivered by the Owner
Participant and that the terms of the Trust Agreement are not in
violation of any laws, documents, judgments, regulations or other
provisions applicable to the Owner Participant, the Trust Agreement
constitutes, under the laws of the State of Utah, a legal, valid and
binding obligation of the Owner Participant enforceable against the
Owner Participant in accordance with its terms.
(3) The Trust Agreement, the Participation Agreement, and each
other Operative Document to which First Security or the Owner Trustee,
as the case may be, is a party, and the Secured Certificates, have been
duly authorized, executed and delivered by First Security, or the Owner
Trustee, as the case may be, and assuming due authorization, execution
and delivery by the other parties thereto is a legal, valid and binding
obligation of First Security, or the Owner Trustee, as the case may be,
enforceable in accordance with their respective terms.
(4) The execution and delivery by First Security of the Trust
Agreement and the Participation Agreement and the execution and delivery
by the Owner Trustee of the Operative Documents to which it is a party
is not, and the performance by First Security, or the Owner Trustee, as
the case may be, of its respective obligations under each such
agreements will not be, inconsistent with the articles of association or
by-laws of First Security, do not and will not contravene any federal
law or law of the State of Utah, or any rule or regulation of the State
of Utah or the federal governmental rule, or any judgment or order of
which we have knowledge and which is applicable to it and do not and
will not contravene any provision of, or result in the creation of any
lien upon any property of First Security, or constitute a default under,
any indenture, mortgage, contract or other instrument of which we have
knowledge and to which First Security or the Owner Trustee is a party or
by which either is bound or require the consent or approval of, the
giving of notice to, or the registration with, or the taking of any
action in respect of, or under federal law or the laws of the State of
Utah or any subdivision or agency thereof.
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<PAGE>
(5) There are no fees, taxes or other charges, except taxes
imposed on fees payable to First Security, required to be paid under the
laws, ordinances or regulations of the State of Utah or any political
subdivision thereof, including, without limitation, Salt Lake City, in
connection with the execution, delivery or performance by the Lessee,
Owner Trustee, Indenture Trustee or any Participant of the Operative
Documents solely because First Security, or the Owner Trustee as the
case may be, performs certain of its obligations under the Operative
Documents in the State of Utah.
(6) To our knowledge, there are no pending or threatened actions
or proceedings against or affecting First Security or the Owner Trustee,
as the case may be, before any court, governmental authority or
administrative agency which, if adversely determined, could materially
adversely affect the right, power or ability, either in its individual
capacity or as Owner Trustee, or both, as the case may be, to enter into
or perform its obligations under the Operative Documents.
(7) The Trust Indenture (or financing statements or other notices
with respect thereto) has been filed for record or recorded with the
Division of Corporations and Commercial Code in the State of Utah and
such offices are all the places in the State of Utah wherein such filing
or recordation is necessary and no other actions or filings are
necessary in the State of Utah to perfect the lien and security interest
of the Indenture Trustee in the Trust Estate as against creditors of or
purchasers from the Owner Trustee or the Lessee, or both.
(8) The Owner Trustee has received such right, title and interest
in and to the Aircraft as was conveyed to the Owner Trustee on the date
hereof, subject to (i) the rights of the Lessee under the Lease and the
Lease Supplement; (ii) the beneficial interest of the Owner Participant
in the Aircraft; and (iii) the Lien created pursuant to the Trust
Indenture and the Trust Indenture Supplement; and to our knowledge there
exist no Liens affecting the right, title or interest of the Owner
Trustee in and to the Trust Estate resulting from claims against First
Security, not related to the ownership of the Trust Estate or the
administration of the Trust Estate or any other transaction contemplated
by the Operative Documents.
(9) Assuming that (i) the Aircraft is not physically located in
the State of Utah at the commencement or termination of the Term, (ii)
in connection with any sale of the Aircraft, such Aircraft will not be
physically delivered in the State of Utah to a buyer, (iii) the Aircraft
will be sold or leased for use in interstate commerce, and (iv) the
trust created by the Trust Agreement is treated as a grantor trust under
subpart E, Part 1 of Subchapter J of the Internal Revenue Code of 1986,
as amended, there are no fees, taxes or other charges (except taxes
-3-
<PAGE>
imposed on fees payable to the Owner Trustee) payable to the State of
Utah or any political subdivision thereof in connection with the
execution, delivery or performance by the Owner Trustee, the Indenture
Trustee, the Lessee or any Participant of the Operative Documents or in
connection with the making by the Owner Participant of its investment in
the Aircraft or its acquisition of the beneficial interest in the Trust
Estate or in connection with the issuance and acquisition of the Secured
Certificates, and neither the Owner Trustee, the Trust Estate nor the
trust created by the Trust Agreement will be subject to any fee, tax or
other governmental charge (except taxes on fees payable to the Owner
Trustee) under the laws of the State of Utah or any political
subdivision thereof on, based on or measured by, directly or indirectly,
the gross receipts, net income or value of the Trust Estate by reason of
the creation or continued existence of the trust under the terms of the
Trust Agreement pursuant to the laws of the State of Utah or the Owner
Trustee's performance of its duties under the Trust Agreement within
such State.
(10) Neither a Utah court nor a federal court applying Utah law or
federal law, if properly presented with the issue and after having
properly considered such issue, would permit the Owner Participant to
terminate the Trust Agreement, except in accordance with its terms.
(11) Although there is no Utah case directly on point, under the
laws of the State of Utah, so long as the Trust Agreement has not been
terminated in accordance with its terms, creditors of any person that is
an Owner Participant, Holders of a lien against the assets of any such
person that is an Owner Participant, such as trustees, receivers or
liquidators (whether or not an insolvency proceeding has been commenced)
(collectively, the "Creditors") may acquire valid claims and liens, as
to the Trust Estate, only against the rights of such Owner Participant
under the Trust Agreement or in the Trust Estate, and do not have, and
may not through the enforcement of such Creditors' rights acquire, any
greater rights than such Owner Participant with respect to the Trust
Agreement or the Trust Estate.
Your attention is directed to the Utah UCC, which provides, in
part, that a filed financing statement which does not state a maturity date
or which states a maturity date of more than five (5) years is effective only
for a period of five (5) years from the date of filing, unless within six (6)
months prior to the expiration of said period a continuation statement is
filed in the same office or offices in which the original statement was
filed. The continuation statement must be signed by the secured party,
identify the original statement by file number and state that the original
statement is still effective. Upon the timely filing of a continuation
statement, the effectiveness of the original financing statement is continued
for five (5) years after the last date to which the original statement was
-4-
<PAGE>
effective. Succeeding continuation statements may be filed in the same
manner to continue the effectiveness of the original statement.
The foregoing opinions are subject to the following assumptions,
exception and qualifications:
A. The foregoing opinions are limited to the laws of the State of Utah
and the federal laws of the United States of America governing the
banking and trust powers of First Security and Title II of the United
States Code entitled "Bankruptcy". In addition, we express no opinion
with respect to (i) federal securities laws, including the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, and the Trust Indenture Act of 1939, as amended; (ii) Title 49
of the United States Code Annotated, sometimes referred to as the
Transportation Act, which was enacted in substitution of the Federal
Aviation Act of 1958 and the regulations promulgated pursuant thereto,
as amended from time to time and any similar law of the United States
enacted in substitution or replacement thereof (except with respect to
the opinion set forth in paragraph 1 above concerning the citizenship of
First Security); or (iii) state securities or blue sky laws. Insofar as
the foregoing opinions relate to the legality, validity, binding effect
and enforceability of the documents involved in these transactions,
which by their terms are governed by the laws of a state other than
Utah, we have assumed that such documents constitute legal, valid,
binding and enforceable agreements under the laws of such state, as to
which we express no opinion.
B. The foregoing opinions regarding enforceability of any document or
instrument are subject (i) except as otherwise set forth in the opinions
in paragraphs 10 and 11, to applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the
rights and remedies of creditors generally, and (ii) general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law. We call to your attention that
bankruptcy courts are courts in equity with wide discretion in applying
the provisions of the Bankruptcy Code.
C. As to the documents involved in these transactions, we have assumed
that each is a legal, valid and binding obligation of each party
thereto, other than First Security or the Owner Trustee, and is
enforceable against each such party in accordance with their respective
terms.
D. The opinion in paragraph 1 above concerning the citizenship of
First Security is based upon the facts contained in an affidavit of
First Security, made by its authorized officer, which facts we have not
independently verified.
-5-
<PAGE>
E. We have assumed that all signatures, other than those of the Owner
Trustee or First Security, on documents and instruments involved in
these transactions are genuine, that all documents and instruments
submitted to us as originals are authentic, and that all documents and
instruments submitted to us conform with the originals, which facts we
have not independently verified.
F. We do not purport to be experts in respect of, or express any
opinion concerning laws, rules or regulations applicable to the
particular nature of the equipment involved in these transactions.
G. We have made no investigation of, and express no opinion
concerning, the nature of the title to any part of the equipment
involved in these transactions or the priority of any mortgage or
security interest.
H. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of
Section 406 of the Employee Retirement Income Security Act of 1974.
I. In addition to any other limitation by operation of law upon the
scope, meaning or purpose of this opinion, this opinion speaks only as
of the date hereof. We have no obligation to advise the recipients of
this opinion (or any third party) of changes of law or fact that may
occur after the date hereof, even though the change may affect the legal
analysis, a legal conclusion or any information contained herein.
J. The opinions expressed in this letter are solely for the use of the
parties to which it is addressed in matters directly related to the
Participation Agreement and the transactions contemplated thereunder and
these opinions may not be relied on by any other persons or for any
other purpose without our prior written approval. The opinions
expressed in this letter are limited to the matters set forth in this
letter and no other opinions should be inferred beyond the matters
expressly stated.
Very truly yours,
RAY, QUINNEY & NEBEKER
[__________________________]
-6-
<PAGE>
SCHEDULE A
----------
First Security Bank, National Association, as Owner Trustee
Northwest Airlines, Inc., as Lessee
Northwest Airlines Corporation, as Guarantor
State Street Bank and Trust Company, as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
[______________________], as Owner Participant
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
<PAGE>
Exhibit E-1 to Participation Agreement
--------------------------------------
[Form of Opinion of special counsel for the Owner Participant]
[___________ __, ____]
TO THE ADDRESSEES LISTED
ON SCHEDULE A HERETO
Re: [Airbus A319-114] [Boeing 757-251] aircraft
with Registration Mark N[ ]
Ladies and Gentlemen:
We have acted as special counsel to [ _________________ ], a [
_______ ] corporation (the "Owner Participant"), in connection with the
transactions contemplated by the Participation Agreement [NW ____ __] dated
as of [ ____________ ] (the "Participation Agreement") among Northwest
Airlines, Inc., Northwest Airlines Corporation, the Owner Participant, First
Security Bank, National Association, as Owner Trustee under the Trust
Agreement referred to therein, State Street Bank and Trust Company of
Connecticut, National Association, as Pass Through Trustee under each of the
Pass Through Trust Agreements referred to therein, State Street Bank and
Trust Company, as Subordination Agent, and State Street Bank and Trust
Company, as Indenture Trustee under the Indenture referred to therein.
Capitalized terms used but not defined in this opinion letter shall have the
meanings set forth in, or by reference in, the Participation Agreement. This
opinion is delivered pursuant to Section 4(a)(xiv) of the Participation
Agreement.
We have examined the Participation Agreement, the Lease, the Trust
Agreement, the Indenture, the Secured Certificates, the Tax Indemnity
Agreement and the Purchase Agreement Assignment (collectively, the
"Documents"). In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
facsimile, certified or photostatic copies and the authenticity of the
originals of such copies.
The opinions contained in this opinion letter are subject to the
following assumptions, limitations and qualifications:
A. We have assumed (i) the due organization, existence and good
standing of all parties to the Documents (the "Parties"), (ii) the power and
full legal right of the Parties under all applicable laws and regulations,
<PAGE>
without approvals, authorizations, consents or other orders of any public
body or board, to execute, deliver and perform under the Documents, (iii) the
due authorization, execution and delivery by the Parties of the Documents and
the due authentication of the Secured Certificates by the Indenture Trustee,
(iv) that the Parties are not subject to any judgment, order, writ,
injunction or decree of any court, arbitrator or governmental agency or
instrumentality that prohibits or enjoins the execution, delivery or
performance of any of the Documents or any of the transactions contemplated
by the Documents and (v) with respect to factual matters, the accuracy of the
representations set forth in Section 8 of the Participation Agreement.
B. The enforceability of the Documents against the Owner
Participant or against the Owner Trustee may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the rights of creditors generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and, in the case of indemnity provisions contained therein,
as limited by public policy considerations, and except that certain of the
remedial provisions in the Lease and the Indenture may be limited or rendered
unenforceable by applicable laws, which laws, however, do not in our opinion
make the remedies provided in such document inadequate for the practical
realization of the benefits provided thereby.
C. The execution, delivery and performance by the Owner Trustee
and by First Security Bank, National Association, in its individual capacity,
or both, as the case may be, of the Participation Agreement, the Trust
Agreement, the Lease, the Purchase Agreement Assignment, the Indenture and
the Secured Certificates (the "Owner Trustee Documents") and the consummation
of the transactions by the Owner Trustee and by First Security Bank, National
Association in its individual capacity contemplated thereby are not and will
not be in violation of the articles of association or By-Laws of First
Security Bank, National Association or of any indenture, mortgage, credit
agreement, license or other agreement or instrument to which First Security
Bank, National Association, in its individual capacity or as the Owner
Trustee is a party or by which it is bound, or of any Federal or state law,
governmental rule or regulation applicable to First Security Bank, National
Association, in its individual capacity or as the Owner Trustee or any
judgment or order applicable to it and known to such counsel after due
inquiry.
D. Neither the execution and delivery by the Owner Trustee and,
here appropriate, by First Security Bank, National Association, in its
individual capacity, or both, as the case may be, of the Owner Trustee
Documents nor the consummation of any of the transactions by the Owner
Trustee, by First Security Bank, National Association in its individual
capacity, or both, as the case may be, contemplated thereby requires the
consent or approval of, the giving of notice to, or the registration with, or
-2-
<PAGE>
the taking of any other action with respect to, any governmental authority or
agency under any existing Federal laws governing the banking and trust powers
of First Security Bank, National Association, or state law (except for
filings pursuant to the Uniform Commercial Code, and except for compliance
with requirements of the Federal Aviation Act).
E. We express no opinion as to the availability of specific
performance and/or injunctive relief or other equitable or provisional
remedies in relation to enforcement of the Documents.
F. We express no opinion as to the priority of any security
interests or as to title to any part of the Trust Estate.
G. This opinion is given based on states of law, documentation
and fact as they exist on the date hereof and we do not undertake to advise
you of any changes which hereafter may be brought to our attention.
H. The enforcement of any rights of any party is subject to any
implied duty to act reasonably and in good faith.
I. We express no opinions as to matters governed by (i) any
Federal or state securities law, (ii) any Federal or state tax laws, or (iii)
the Federal Aviation Act.
Based on our examination described above, relying upon statements
of fact contained in the documents we have examined and subject to the
assumptions, limitations and qualifications expressed in this letter, we are
of the opinion that:
1. The Participation Agreement, the Trust Agreement and the Tax
Indemnity Agreement (the "Owner Participant Documents") constitute the legal,
valid and binding obligations of Owner Participant, enforceable against Owner
Participant in accordance with their respective terms.
2. Neither the execution of, delivery and performance by Owner
Participant of the Owner Participant Documents nor the consummation of any of
the transactions by Owner Participant contemplated thereby requires the
consent or approval of, the giving of notice to, the registration with, or
the taking of any other action in respect to any governmental authority or
agency of the United States, the State of [_________] or, assuming the law of
[_________] is identical to the law of New York, the State of [__________]
(except for filings pursuant to the Uniform Commercial Code, and except for
compliance with the requirements of the Federal Aviation Act, as to which we
express no opinion).
3. The Owner Trustee Documents (other than the Trust Agreement),
including the Secured Certificates, constitute legal, valid and binding
-3-
<PAGE>
obligations of the Owner Trustee, enforceable against the Owner Trustee in
accordance with their respective terms.
4. The Trust Indenture duly creates for the benefit of the
Indenture Trustee the security interests which the Trust Indenture purports
to create and the Indenture Trustee is entitled to the benefits and security
afforded by the Trust Indenture.
We are licensed to practice law in the State of New York, and the
opinions set forth in this opinion letter are limited to the application of
the laws of the United States of America and the State of New York to the
matters expressly covered by such opinions. This letter is furnished by us
to you on the date hereof only in connection with the transactions
contemplated by the Participation Agreement and may not be relied upon by any
other person or entity.
Very truly yours,
-4-
<PAGE>
SCHEDULE A
----------
Northwest Airlines, Inc., as Lessee
Northwest Airlines Corporation, as Guarantor
First Security Bank, National Association, as Owner Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
State Street Bank and Trust Company, as Indenture Trustee
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
<PAGE>
Exhibit E-2 to Participation Agreement
--------------------------------------
[Form of Opinion of Owner Participant's in-house counsel]
[__________ ___, ____]
TO THE ADDRESSEES LISTED
ON SCHEDULE A HERETO
Re: [Airbus A319-114] [Boeing 757-251] aircraft
with Registration Mark N[ ]
Dear Sirs:
I am in-house counsel of [________________], a [__________]
corporation (the "Owner Participant"), and have acted as counsel to Owner
Participant in connection with the transactions contemplated by that certain
Participation Agreement [NW ____ __] dated as of [_____________] (the
"Participation Agreement") among Northwest Airlines, Inc., Northwest Airlines
Corporation, the Owner Participant, First Security Bank, National
Association, as Owner Trustee under the Trust Agreement referred to therein,
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee under each of the Pass Through Trust Agreements referred
to therein, State Street Bank and Trust Company, as Subordination Agent, and
State Street Bank and Trust Company, as Indenture Trustee under the Trust
Indenture referred to therein. This opinion is delivered pursuant to Section
4(a)(xiv) of the Participation Agreement.
Except as otherwise noted herein, all capitalized terms used but
not defined in this opinion letter shall have the meanings set forth in, or
by reference in, the Participation Agreement.
In connection with my opinion herein, I have examined executed
counterparts of the Participation Agreement, the Trust Agreement and the Tax
Indemnity Agreement (the "Owner Participant Documents") and the other
documents relating to the proposed transaction. With respect to factual
matters, I have relied upon the representations and warranties contained in
each such Owner Participant Document and upon originals or copies, certified
or otherwise identified to my satisfaction, of such other documents as I have
deemed relevant to the rendering of this opinion. In such examination I have
assumed the genuineness of all signatures (other than that of Owner
Participant), the legal capacity of all natural persons, the authenticity of
all documents submitted to me as originals, the conformity with the originals
of all documents submitted to me as copies and the authenticity of the
originals of such copies. In rendering the opinions set forth below, I have
<PAGE>
assumed the due authorization, execution and delivery of the Owner
Participant Documents by each of the parties thereto other than the Owner
Participant.
1. Owner Participant is a duly incorporated and validly existing
corporation in good standing under the laws of the State of [__________] and
has the corporate power and authority to execute, deliver and carry out the
terms of the Owner Participant Documents.
2. The Owner Participant Documents have been duly authorized,
executed and delivered by Owner Participant.
3. Neither the execution and delivery by the Owner Participant of
the Owner Participant Documents nor the consummation of any of the
transactions by the Owner Participant contemplated thereby, violates any law,
governmental rule or regulation of the United States, the State of
[__________] or the State of [__________] (or any governmental subdivision
thereof).
4. The execution, delivery and performance of the Owner
Participant Documents by the Owner Participant have been duly authorized by
all necessary corporate action on the part of the Owner Participant, do not
require any approval of stockholders of the Owner Participant, or, to my
knowledge, any approval or consent of any trustee or Holders of any
indebtedness or obligations of the Owner Participant (other than any such
approval or consent as has been obtained), and neither the execution and
delivery of any thereof by the Owner Participant nor the performance by the
Owner Participant of its obligations thereunder (A) contravenes any law,
governmental rule or regulation or, to my knowledge, judgment or order
applicable to or binding on the Owner Participant or (B) to my knowledge,
contravenes or results in any breach of, or constitutes any default under, or
results in the creation of any lien (other than provided for in the Operative
Documents) upon any property of the Owner Participant under, any indenture,
mortgage, chattel mortgage, deed of trust, conditional sales contract, bank
loan or credit agreement, or any other agreement or instrument, corporate
charter, by-law or permit issued by any [__________] or United States
governmental authority to which the Owner Participant is a party or by which
the Owner Participant or its properties may be bound or affected.
5. To my knowledge, there are no pending or threatened
proceedings against or affecting the Owner Participant before any court or
administrative agency, individually or in the aggregate, which, if determined
adversely to it, would materially adversely affect the power or ability of
the Owner Participant to perform its obligations under the Owner Participant
Documents.
-2-
<PAGE>
I am a member of the Bar of the State(s) of [___________] and I do
not express herein any opinion as to any matters governed by any law other
than the laws of the State(s) of [_______________], [the Delaware General
Corporation Law] and the Federal law of the United States. No opinion is
expressed herein as to matters governed by (i) any Federal or state
securities law, (ii) any Federal or state tax laws, or (iii) the Federal
Aviation Act.
This opinion is furnished by me at your request for your sole
benefit, and no other person or entity shall be entitled to rely on this
opinion without my express written consent, except that [our special counsel]
may rely on this opinion for purposes of delivering its opinion.
Very truly yours,
-3-
<PAGE>
SCHEDULE A
----------
Northwest Airlines, Inc., as Lessee
Northwest Airlines Corporation, as Guarantor
First Security Bank, National Association, as Owner Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
State Street Bank and Trust Company, as Indenture Trustee
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
<PAGE>
Exhibit F to Participation Agreement
------------------------------------
[Form of Opinion of Crowe & Dunlevy, P.C.]
[_________ __, ____]
TO THE ADDRESSEES LISTED
ON SCHEDULE A HERETO
Re: [Airbus A319-114] [Boeing 757-251] aircraft with manufacturer's
serial number [_____] and United States nationality and
registration marks N [____] (the "Aircraft")
Ladies and Gentlemen:
This letter confirms that we filed the following described
instruments with the Federal Aviation Administration (the "FAA") today at the
respective times noted below:
(a) [Mortgage and Security Agreement Release and Termination
Agreement dated [__________] between [_________] and Northwest
Airlines, Inc., which released the Aircraft and the [CFM
International, Inc. model CFM56-5A5] [Pratt & Whitney model
PW2037] aircraft engines with manufacturer's serial numbers
[______] and [______] (the "Engines") from the terms of
Conveyance No. [_________] was filed at [____________]];
(b) AC Form 8050-2 Aircraft Bill of Sale dated [_____________]
(the "FAA Bill of Sale") by Northwest Airlines, Inc. (the
"Lessee") to First Security Bank, National Association, as
Owner Trustee (the "Owner Trustee") under Trust Agreement
[NW ____ __] dated as of [__________] (the "Trust Agreement")
between [______________], as Owner Participant, and the Owner
Trustee, covering the Aircraft was filed at [____________];
(c) AC Form 8050-1 Aircraft Registration Application by the Owner
Trustee covering the Aircraft, to which were attached the
Affidavits required by Section 47.7(c)(2)(ii) of Part 47 of
the Federal Aviation Regulations, was filed at
[_______________];
(d) the Trust Agreement was filed at [_______________];
(e) Trust Indenture and Security Agreement [NW ____ __] dated as
of [__________] (the "Indenture") between the Owner Trustee
<PAGE>
and State Street Bank and Trust Company as Indenture Trustee
(the "Indenture Trustee"), to which were attached the Trust
Agreement and Indenture Supplement [NW ____ __] dated
[______________] (the "Indenture Supplement") covering the
Aircraft and the [CFM International, Inc. model CFM56-5A5]
[Pratt & Whitney model PW2037] aircraft engines with
manufacturer's serial numbers [______] and [______] (the
"Engines"), was filed at [__________]; and
(f) Lease Agreement [NW ____ __] dated as of [____________] (the
"Lease") between the Owner Trustee as lessor and the Lessee,
to which were attached Lease Supplement No. 1 dated
[_____________] (the "Lease Supplement") covering the Aircraft
and the Engines, the Indenture and the Indenture Supplement,
was filed at [__________];
Based upon our examination of the above described instruments and
of such records of the FAA as we deemed necessary to render this opinion and
as were made available to us by the FAA, it is our opinion that:
(a) the FAA Bill of Sale, the Indenture with the Indenture
Supplement attached, the Lease with the Lease Supplement, the
Indenture and the Indenture Supplement attached are in due
form for recordation by and have been duly filed for
recordation with the FAA pursuant to and in accordance with
the provisions of Section 44107 of Title 49 of the United
States Code;
(b) legal title to the Aircraft is vested in the Owner Trustee and
all instruments necessary to cause the FAA in due course to
issue to the Owner Trustee an AC Form 8050-3 Certificate of
Aircraft Registration covering the Aircraft have been duly
filed with the FAA pursuant to and in accordance with the
provisions of Sections 44102 and 44103 of Title 49 of the
United States Code;
(c) the Aircraft and the Engines are free and clear of Liens (as
such term is defined in the Lease) other than such as are
created by the Indenture, as supplemented by the Indenture
Supplement, and by the Lease, as supplemented by the Lease
Supplement;
(d) the Indenture, as supplemented by the Indenture Supplement
creates a duly and validly perfected first priority security
interest in favor of the Indenture Trustee in the Aircraft and
the Engines and in all of the right, title and interest of the
Owner Trustee in and to the Lease, as supplemented by the
-2-
<PAGE>
Lease Supplement (insofar as such security interest affects an
interest covered by the recording system established by the
FAA pursuant to Section 44107 of Title 49 of the United States
Code);
(e) the Indenture, as supplemented by the Indenture Supplement, is
not required to be refilled with the FAA or filed or recorded
in any other place within the United States in order to
perfect or maintain the perfection of the security interest
created thereby in the Aircraft and the Engines under the
applicable laws of any jurisdiction within the United States;
and
(f) no other registration of the Aircraft and no filings or
recordings (other than the filings and recordings with the FAA
which have been effected) are necessary to perfect in any
jurisdiction within the United States the Owner Trustee's
title to the Aircraft or the security interest created by the
Indenture, as supplemented by the Indenture Supplement in the
Aircraft and the Engines under the applicable laws of any
jurisdiction within the United States.
No opinion is herein expressed as to: (i) laws other than the
federal laws of the United States; (ii) the validity or enforceability under
local law of the Indenture, as supplemented by the Indenture Supplement; and
(iii) the recognition of the perfection of the security interest created by
the Indenture, as supplemented by the Indenture Supplement against third
parties in any legal proceedings outside the United States. Since our
examination was limited to records maintained by the FAA Aircraft Registry,
our opinion does not cover liens which are perfected without the filing of
notice thereof with the FAA, such as federal tax liens, liens arising under
Section 1368(a) of Title 29 of the United States Code and possessory
artisans' liens, and was subject to the accuracy of FAA personnel in the
filing, indexing and recording of instruments filed with the FAA and in the
search for encumbrance cross-reference index cards for the Engines. This
opinion is rendered in reliance upon the opinion of the Aeronautical Center
Counsel dated [_______________] (a copy of which is attached hereto) and upon
the past practice of the FAA which is consistent with said opinion.
Very truly yours,
-3-
<PAGE>
SCHEDULE A
----------
Northwest Airlines, Inc., as Lessee
Northwest Airlines Corporation, as Guarantor
First Security Bank, National Association, as Owner Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
State Street Bank and Trust Company, as Indenture Trustee
[_________________], as Owner Participant
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
<PAGE>
Exhibit G to Participation Agreement
------------------------------------
[Form of Opinion of Bingham Dana LLP,
special counsel for the Indenture Trustee]
[__________, ____]
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
Re: Northwest Airlines, Inc./Leveraged Lease Financing of One [Airbus
A319-114] [Boeing 757-251] Aircraft [NW ] (Indenture
Trustee Opinion)
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and Trust
Company in its individual capacity ("State Street") and as Indenture Trustee
(the "Indenture Trustee") under the Trust Indenture and Security Agreement
[NW ____] dated as of [________________] (the "Indenture") between First
Security Bank, National Association, not in its individual capacity, but
solely as Owner Trustee (the "Owner Trustee"), and State Street, as Indenture
Trustee, in connection with the execution and delivery of the Participation
Agreement [NW ____] dated as of [________________] (the "Participation
Agreement") by and among the Indenture Trustee, Northwest Airlines, Inc., as
Lessee (the "Lessee"), Northwest Airlines Corporation (the "Guarantor"),
[__________________], as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, as Pass Through Trustee (the
"Pass Through Trustee"), State Street, as Subordination Agent (the
"Subordination Agent") and the Owner Trustee and the transactions
contemplated thereby. Capitalized terms not otherwise defined herein shall
have the meanings specified in the Lease and Section 13 of the Participation
Agreement. This opinion is being delivered pursuant to Section 4(a)(xvi) of
the Participation Agreement.
Our representation of State Street and the Indenture Trustee has
been as special counsel for the limited purposes stated above. As to all
matters of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind), we have relied,
with your permission, entirely upon (i) the representations and warranties of
the parties set forth in the Operative Documents and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations, warranties and
certificates.
We have examined the Participation Agreement the Note Purchase
Agreement, the Indenture and the other documents to which State Street
<PAGE>
individually or as Indenture Trustee, is a party (together, the "Operative
Documents"), the Certificate of the Massachusetts Commissioner of Banks
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other records, documents,
certificates, or other instruments as we have deemed necessary or advisable
for the purposes of this opinion. For purposes of our opinion rendered in
paragraph 1 below, with respect to the authority of State Street to operate
as a state-chartered trust company and exercise trust powers, our opinion
relies upon and is limited by such Certificate of the Massachusetts
Commissioner of Banks.
We have assumed the genuineness of all signatures (other than those
on behalf of State Street and the Indenture Trustee), the conformity to the
originals of all documents reviewed by us as copies, and the authenticity and
completeness of all original documents reviewed by us in original or copy
form and the legal competence of each individual executing any document
(other than on behalf of State Street and the Indenture Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates and the partner of the firm
responsible for State Street corporate trust matters, and without any special
or additional investigation undertaken for the purposes of this opinion.
Subject to the limitation set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the Commonwealth of Massachusetts as applied by courts
located in Massachusetts and the federal laws of the United States. No
opinion is given herein as to the choice of law or internal substantive rules
of law that any court or other tribunal may apply to the transactions
contemplated by the Operative Documents. No opinion is expressed herein as
to the application or effect of federal securities laws or as to the
securities or so-called "Blue Sky" laws of any state or other jurisdiction.
In addition, no opinion is expressed as to matters governed by any law,
statute, rule or regulation of the United States relating to the acquisition,
ownership, registration, use, operation, maintenance, repair, replacement or
sale of or the nature of the Aircraft.
To the extent to which this opinion deals with matters governed by
or relating to the laws of the State of New York, or other jurisdiction other
than the Commonwealth of Massachusetts, by which the Operative Documents are
stated to be governed, we have assumed, with your permission that the
-2-
<PAGE>
Operative Documents are governed by the internal substantive laws of the
Commonwealth of Massachusetts.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
(a) We have assumed without any independent investigation that (i)
each party to the Operative Documents, other than State Street, in its
individual capacity or as Indenture Trustee, as applicable, at all times
relevant thereto, is validly existing and in good standing under the
laws of the jurisdiction in which it is organized, and is qualified to
do business and in good standing under the laws of each jurisdiction
where such qualification is required generally or necessary in order for
such party to enforce its rights under such Operative Documents, and
(ii) each party to the Operative Documents, at all times relevant
thereto, had and has the full power, authority and legal right under its
certificate of incorporation, partnership agreement, by-laws, and other
governing organizational documents, and the applicable corporate,
partnership, or other enterprise legislation and other applicable laws,
as the case may be (other than State Street and the Indenture Trustee
with respect to the laws of the United States of America and the
internal substantive laws of the Commonwealth of Massachusetts, but only
in each case to the limited extent the same may be applicable to State
Street or the Indenture Trustee, and relevant to our opinions expressed
below) to execute, and to perform its obligations under, the Operative
Documents, and (iii) each party to the Operative Documents (other than
State Street or the Indenture Trustee, as applicable) has duly executed
and delivered each of such agreements and instruments to which it is a
party and that (other than with respect to State Street and the
Indenture Trustee, as applicable) the execution and delivery of such
agreements and instruments and the transactions contemplated thereby
have been duly authorized by proper corporate or other organizational
proceedings as to such party.
(b) We have assumed without any independent investigation (i) that
each of the Operative Documents is a valid, binding and enforceable
obligation of each party thereto other than State Street or the
Indenture Trustee, as applicable, and (ii) that each of the Operative
Documents is a valid, binding and enforceable obligation of State Street
or the Indenture Trustee, as applicable, to the extent that laws other
than those of the Commonwealth of Massachusetts are relevant thereto
(other than the laws of the United States of America, but only to the
limited extent the same may be applicable to State Street or the
Indenture Trustee, as applicable, and relevant to our opinions expressed
below).
-3-
<PAGE>
(c) The enforcement of any obligations of State Street or the
Indenture Trustee, as applicable, under any of the Operative Documents
may be limited by the receivership, conservatorship and supervisory
powers of bank regulatory agencies generally, as well as by bankruptcy,
insolvency, reorganization, moratorium, marshaling or other laws and
rules of law affecting the enforcement generally of creditors' rights
and remedies (including such as may deny giving effect to waivers of
debtors' or guarantors' rights); and we express no opinion as to the
status under any fraudulent conveyance laws or fraudulent transfer laws
of any of the obligations of State Street or the Indenture Trustee, as
applicable, under any of the Operative Documents.
(d) We express no opinion as to the availability of any specific
or equitable relief of any kind.
(e) The enforcement of any rights may in all cases be subject to
an implied duty of good faith and fair dealing and to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity) and, as to any rights to collateral
security, will be subject to a duty to act in a commercially reasonable
manner.
(f) We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating to (i)
waivers of rights to object to jurisdiction or venue, or consents to
jurisdiction or venue, (ii) waivers of rights to (or methods of) service
of process, or rights to trial by jury, or other rights or benefits
bestowed by operation of law, (iii) waivers of any applicable defenses,
setoffs, recoupments, or counterclaims, (iv) the grant of powers of
attorney to any person or entity, (v) exculpation or exoneration
clauses, indemnity clauses, and clauses relating to releases or waivers
of unmatured claims or rights, (vi) the imposition or collection of
interest on overdue interest or providing for a penalty rate of interest
or late charges on overdue or defaulted obligations, or the payment of
any premium, liquidated damages, or other amount which may be held by
any court to be a "penalty" or a "forfeiture," or (vii) so-called "usury
savings clauses" purporting to specify methods of (or otherwise assure)
compliance with usury laws or other similar laws of any jurisdiction.
(g) We express no opinion as to the effect of events occurring,
circumstances arising, or changes of law becoming effective or
occurring, after the date hereof on the matters addressed in this
opinion letter, and we assume no responsibility to inform you of
additional or changed facts, or changes in law, of which we may become
aware.
-4-
<PAGE>
(h) No opinion is given herein as to the effect of usury laws (or
other similar laws) of any jurisdiction with respect to the Operative
Documents.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their successors and assigns in
connection with the transactions contemplated by the Operative Documents and
may not be used or relied upon by any other person or for any other purpose.
1. State Street is a Massachusetts trust company, validly formed
and authorized to operate as a state-chartered trust company under the laws
of the Commonwealth of Massachusetts and, in its individual capacity or as
Indenture Trustee, as the case may be, has the requisite corporate and trust
power and authority to execute, deliver and perform its obligations under the
Operative Documents and in its capacity as Indenture Trustee, to authenticate
the Secured Certificates to be delivered on the Delivery Date.
2. State Street, in its individual capacity or as Indenture
Trustee, as the case may be, has duly authorized the Operative Documents and
has duly executed and delivered the Operative Documents, and the Operative
Documents constitute valid and binding obligations of State Street, in its
individual capacity or as Indenture Trustee, as the case may be, enforceable
against State Street, in its individual capacity or as Indenture Trustee, as
the case may be, in accordance with their respective terms.
3. The Secured Certificates to be issued and dated the Delivery
Date have been duly authenticated and delivered by State Street as Indenture
Trustee pursuant to the terms of the Indenture.
4. The authorization, execution, delivery and performance by
State Street, in its individual capacity or as Indenture Trustee, as the case
may be, of the Operative Documents and the consummation of the transactions
therein contemplated and compliance with the terms thereof do not and will
not result in the violation of the provisions of the charter documents or by-
laws of State Street and, to the best of our knowledge, do not conflict with,
or result in a breach of any terms or provisions of, or constitute a default
under, or result in the creation or the imposition of any lien, charge or
encumbrance upon any property or assets of State Street under any indenture,
mortgage or other agreement or instrument, in each case known to us, to which
State Street is a party or by which it is bound, or violates any applicable
Massachusetts or federal law, rule or regulation governing State Street's
banking or trust powers, or, to the best of our knowledge, of any judgment,
order or decree, in each case known to us, applicable to State Street of any
court, regulatory body, administrative agency, government or governmental
body having jurisdiction over State Street.
-5-
<PAGE>
5. No authorization, approval, consent, license or order of,
giving of notice to, registration with, or taking of any other action in
respect of, any federal or state governmental authority or agency pursuant to
any federal or Massachusetts law governing the banking or trust powers of
State Street is required for the authorization, execution, delivery and
performance by State Street, in its individual capacity or as Indenture
Trustee, as the case may be, of the Operative Documents or the consummation
of any of the transactions by State Street, in its individual capacity or as
Indenture Trustee, as the case may be, contemplated thereby (except as shall
have been duly obtained, given or taken); and such authorization, execution,
delivery, performance, consummation and issuance do not conflict with or
result in a breach of the provisions of any such law.
6. There are no taxes, fees or other governmental charges payable
under the laws of the Commonwealth of Massachusetts or any political
subdivision of such State in connection with the execution and delivery by
State Street, in its individual capacity or as Indenture Trustee, as the case
may be, of the Operative Documents (except for taxes on any fees payable to
State Street in its individual capacity) which are imposed solely because
State Street has its principal place of business in Massachusetts or performs
its administrative duties under the Operative Documents in Massachusetts.
7. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no proceedings pending or overtly
threatened in writing against or affecting State Street in any court or
before any governmental authority, agency, arbitration board or tribunal
which, if adversely determined, individually or in the aggregate, could
reasonably be expected to affect materially and adversely the trust related
to the Indenture or affect the right, power and authority of State Street, in
its individual capacity or as Indenture Trustee, as the case may be, to enter
into or perform its obligations under the Operative Documents.
Very truly yours,
BINGHAM DANA LLP
-6-
<PAGE>
SCHEDULE A
----------
State Street Bank and Trust Company, as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
First Security Bank, National Association, as Owner Trustee
[____________________], as Owner Participant
Northwest Airlines, Inc., as Lessee
Northwest Airlines Corporation, as Guarantor
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
<PAGE>
Exhibit I to Participation Agreement
------------------------------------
[Form of CW&T 1110 Opinion]
[Date]
TO THE ADDRESSEES LISTED
ON SCHEDULE A HERETO
Re: Northwest Airlines, Inc.
Opinion of Special Counsel to Lessee Concerning
Section 1110 of the Federal Bankruptcy Code
Gentlemen:
We have acted as special counsel for Northwest Airlines, Inc., a
Minnesota corporation ("Lessee"), in connection with the transactions
contemplated by the Participation Agreement [NW ____ ___], dated as of
[______________] (the "Participation Agreement"), among Lessee, Northwest
Airlines Corporation, as Guarantor, First Security Bank, National
Association, as Owner Trustee under the Trust Agreement referred to therein,
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee under each of the Pass Through Trust Agreements referred
to therein, the Owner Participant named therein, State Street Bank and Trust
Company, as Subordination Agent, and State Street Bank and Trust Company, as
Indenture Trustee under the Indenture referred to therein. Capitalized terms
used herein but not defined herein have the respective meanings given to them
in or by reference to the Participation Agreement, unless the context
otherwise requires. As used herein, the term "Airframe" shall mean the
[Airbus A319-114] [Boeing 757-251] Airframe bearing U.S. Registration
No. N[________] and Manufacturer's Serial No. [_____], the term "Engines"
shall mean the two [CFM International, Inc. model CFM56-5A5] [Pratt & Whitney
model PW2037] Engines bearing manufacturer's Serial Nos. [______] and
[______], and the term "Aircraft" shall mean the Airframe and the Engines,
collectively, but expressly excludes any portion of the Aircraft that does
not constitute an aircraft, aircraft engine, appliance, or spare part as such
terms are defined in section 40102 of title 49 of the United States Code. We
are rendering this opinion letter to you at the request of Lessee pursuant to
Section 4(a)(xxiii) of the Participation Agreement.
In acting as such special counsel, we have examined, among other
things, with respect to the Aircraft, executed counterparts of the
Participation Agreement, Purchase Agreement Assignment, Trust Agreement,
Trust Indenture, Trust Supplement, Lease, Lease Supplement, Bill of Sale, FAA
<PAGE>
Bill of Sale, Guarantee and Secured Certificates. As to any facts material
to our opinions expressed herein, we have, without independent investigation,
relied upon the representations and warranties contained in the Operative
Documents (including, without limitation, in Sections 7 and 8 of the
Participation Agreement and certificates of officers of the Lessee including,
without limitation, the certificate of an officer of the Lessee delivered
pursuant to Section 4(a)(ix) of the Participation Agreement and the
certificate of an officer of the Lessee in the form attached as Exhibit A
hereto) and upon originals or copies (certified or otherwise identified to
our satisfaction) of such corporate records, documents and other instruments
as, in our judgment, are necessary or appropriate to enable us to render this
opinion. We have also assumed, and have not independently verified, the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals, the conformity with the originals of all documents submitted
to us as copies, and the accuracy of all factual statements of parties made
on or before the date hereof (and have relied thereon as we have deemed
appropriate). We have delivered to you today our opinion of even date
herewith as to, among other things, the enforceability of certain of the
Operative Documents against the Lessee. This Opinion is subject to the same
assumptions, exceptions, limitations and qualifications set forth therein and
is given in reliance on the same matters, including opinion letters, as are
stated to be relied on therein.
We express no opinion concerning the laws of any jurisdiction other
than the laws of the State of New York and the federal laws of the United
States of America.
You have requested our opinion as to whether the Owner Trustee, as
Lessor under the Lease, and the Indenture Trustee, as assignee of the Owner
Trustee's rights under the Lease pursuant to the Trust Indenture, would be
entitled to the benefits of section 1110 ("Section 1110") of title 11 of the
United States Code (the "Bankruptcy Code") if the Lessee were to become a
debtor in a case under chapter 11 of the Bankruptcy Code.
ASSUMPTIONS
-----------
The opinions expressed herein are based upon and subject to the
assumed compliance by the relevant parties, at all relevant times, with the
assumptions set forth herein and the assumption that all matters relied on
herein continue to be true and that there are no and will not be any
amendments to the Operative Documents or additional facts of which we are not
aware which would be material to a court's decision on this issue.
-2-
<PAGE>
We have assumed, in addition to the assumptions set forth above,
that:
(i) the Owner Trustee will continue to be the registered owner of
the Aircraft, subject to the security interest of the Indenture Trustee;
(ii) the Lessee holds an air carrier operating certificate issued
by the Secretary of Transportation pursuant to chapter 447 of title 49
of the United States Code for aircraft capable of carrying 10 or more
individuals or 6,000 pounds or more of cargo;
(iii) the Trust Indenture constitutes the legal, valid and binding
obligation of the Owner Trustee in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law) and the Trust Indenture is effective to create a valid security
interest in favor of the Indenture Trustee for the benefit of the Loan
Participants in the Owner Trustee's right, title and interest under the
Lease and that the Indenture Trustee has and will continue to hold a
perfected security interest in the Owner Trustee's interest under the
Lease; and
(iv) all Uniform Commercial Code financing statements and all
filings necessary under the recording system of the Federal Aviation Act
have been properly filed and duly recorded in all necessary places to
properly record the ownership interest of the Owner Trustee in the
Aircraft and to perfect the security interest of the Indenture Trustee
in the Owner Trustee's interest in the Lease.
CONCLUSION
----------
Based upon the foregoing, and subject to the assumptions and
qualifications contained herein, it is our opinion that if the Lessee were to
become a debtor under chapter 11 of the Bankruptcy Code, the Owner Trustee as
Lessor under the Lease, and the Indenture Trustee for the benefit of the Loan
Participants, as assignee of the Owner Trustee's rights under the Lease
pursuant to the Trust Indenture, would be entitled to the benefits of
Section 1110 with respect to the Airframe and the Engines but may not be
entitled to such benefits with respect to any replacement of the Aircraft
after an Event of Loss in the future.
-3-
<PAGE>
QUALIFICATIONS
--------------
Section 1110 was amended effective October 22, 1994, and
subsequently amended on April 5, 2000, by Section 744 of the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century, Pub. L. No. 106-181
(the "Aviation Investment and Reform Act"). Our opinion respecting
Section 1110 is based on the assumptions set forth herein, our review of the
language of Section 1110 as currently in effect, a review of the legislative
history of the Bankruptcy Reform Act of 1994 and the Aviation Investment and
Reform Act, and a review of the cases decided under the former versions of
Section 1110. We are not aware of any judicial decision interpreting the
amendments to Section 1110 enacted in the Bankruptcy Reform Act of 1994 or
the Aviation Investment and Reform Act that is directly applicable to the
facts and circumstances present in this transaction. Accordingly, our
opinion is not based on directly applicable judicial precedent, but rather on
what we believe to be a sound analysis of such authorities as exist.
We express no opinion concerning whether any collateral consisting
of proceeds or any substitute or replacement airframe, engine or part would
have the benefits of Section 1110.
We express no opinion as to the availability or effect of a
preliminary injunction, temporary restraining order or other such temporary
relief, nor do we express any opinion, either implicitly or otherwise, with
respect to any subject not addressed expressly in the Conclusion.
We express no opinion as to the availability of Section 1110 with
respect to any bankruptcy proceedings of any possible sublessee of an
Aircraft which may be subleased by the Lessee. We express no opinions except
as expressly set forth herein, and no opinion is implied or may be inferred
beyond the opinions expressly stated herein.
We are furnishing this opinion letter to you solely for your
benefit in connection with the transactions referred to herein. This opinion
letter is not to be relied upon, used, circulated, quoted or otherwise
referred to by any person or entity for any other purpose without our prior
written consent. In addition, we disclaim any obligation to update this
opinion letter for changes in fact or law, or otherwise.
Very truly yours,
-4-
<PAGE>
SCHEDULE A
----------
Northwest Airlines, Inc., as Lessee
Northwest Airlines Corporation, as Guarantor
[___________________], as Owner Participant
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
State Street Bank and Trust Company, as Indenture Trustee
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
<PAGE>
EXHIBIT A
NORTHWEST AIRLINES, INC.
OFFICER'S CERTIFICATE
In connection with the opinion dated [______________ ___, ___] (the
"Opinion"), a copy of which is attached hereto as Exhibit A and which relates
to one [Airbus A319-114] [Boeing 757-251] airframe FAA Registration
No. N[_____] and MSN [_____], and [CFM International, Inc. model CFM56-5A5]
[Pratt & Whitney model PW2037] engine MSN [______] and [CFM International,
Inc. model CFM56-5A5] [Pratt & Whitney model PW2037] engine MSN [______]
(collectively, the "Aircraft"), to be delivered by Cadwalader, Wickersham &
Taft ("CW&T") to the parties identified therein in connection with the
execution and delivery of certain of the Operative Documents (as defined in
the Participation Agreement as defined in the Opinion), I,
[____________________],[____________________] of Northwest Airlines, Inc., do
hereby certify that:
1. I understand that CW&T is relying on this Certificate in
connection with the execution and delivery of the Opinion.
2. To the best of my knowledge, information and belief, after due
inquiry, the assumptions contained in the section of the Opinion entitled
"Assumptions" are true and correct as of the date hereof.
3. I have no reason to believe that any statement, fact, or
opinion expressed in the Opinion is untrue, inaccurate or incomplete in any
respect.
4. To the best of my knowledge, information and belief, after due
inquiry, all of the statements, representations, warranties, agreements,
disclosures and other information furnished by Northwest, Airlines, Inc. and
contained in the Operative Documents and other documents delivered in
connection with this transaction are true, accurate and complete in all
respects.
5. Northwest Airlines, Inc. intends that, as Lessee under the
Lease, the Owner Trustee, and as assignee of the Owner Trustee's rights under
the Lease, the Indenture Trustee, for the benefit of the Loan Participants
(as such terms are defined in the Participation Agreement), be entitled to
the benefits of 11 U.S.C. Section 1110 with respect to the Aircraft.
6. The Aircraft was first placed in service after October 22,
1994.
<PAGE>
7. I have been duly authorized by Northwest Airlines, Inc. to
execute and deliver this Certificate to CW&T.
Dated: [_________ __, ___]
NORTHWEST AIRLINES, INC.
By:
---------------------------------------
Name:
Title:
-2-
<PAGE>
Exhibit J-1 to Participation Agreement
--------------------------------------
[Form of Opinion of Bingham Dana LLP,
special counsel for the Pass Through Trustee]
[______________________, ____]
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
Re: Northwest Airlines, Inc./Leveraged Lease Financing of [Airbus
A319-114] [Boeing 757-251] Aircraft [NW _____ ___] (Pass Through
Trustee Opinion)
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity
("State Street") and as Pass Through Trustee (the "Pass Through Trustee")
under the Pass Through Trust Agreement dated as of June 3, 1999, among
Northwest Airlines Corporation, Northwest Airlines, Inc. and State Street, as
supplemented by Trust Supplement No. 2000-1G and Trust Supplement No. 2000-
1C, each dated as of June 28, 2000 and each among Northwest Airlines, Inc.,
Northwest Airlines Corporation and State Street (collectively, the "Pass
Through Trusts" and, individually, a "Pass Through Trust") in connection with
the execution and delivery of the Participation Agreement [NW ______] dated
as of [_________________] (the "Participation Agreement") by and among State
Street Bank and Trust Company, as Indenture Trustee, Northwest Airlines,
Inc., as Lessee (the "Lessee"), Northwest Airlines Corporation (the
"Guarantor"), [___________________], as Owner Participant, State Street, as
Pass Through Trustee, State Street Bank and Trust Company, as Subordination
Agent (the "Subordination Agent") and First Security Bank, National
Association, as Owner Trustee and the transactions contemplated thereby.
Capitalized terms not otherwise defined herein shall have the meanings
specified in the Lease and Section 13 of the Participation Agreement. This
opinion is being delivered pursuant to Section 4(a)(xxiv) of the
Participation Agreement.
Our representation of State Street and the Pass Through Trustee has
been as special counsel for the limited purposes stated above. As to all
matters of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind), we have relied,
with your permission, entirely upon (i) the representations and warranties of
the parties set forth in the Operative Documents and (ii) certificates
delivered to us by the management of State Street and have assumed, without
<PAGE>
independent inquiry, the accuracy of those representations, warranties and
certificates.
We have examined the Participation Agreement, the Liquidity
Facility for each of the Class G and Class C Trusts, the Intercreditor
Agreement, the Note Purchase Agreement, the Escrow and Paying Agent Agreement
for each of the Class G and Class C Trusts each dated as of June 28, 2000 and
each among First Security Bank, National Association, as Escrow Agent, the
underwriters named therein, State Street, as Pass Through Trustee and State
Street Bank and Trust Company, as Paying Agent, each of the Pass Through
Trusts and the Insurance and Indemnity Agreement dated as of June 28, 2000,
among MBIA Insurance Corporation, Northwest Airlines, Inc., State Street Bank
and Trust Company as Subordination Agent and State Street Bank and Trust
Company of Connecticut, National Association as Pass Through Trustee under
the Class G Trust (together, the "Operative Documents"), the Certificate of
the Comptroller of the Currency relating to State Street and originals, or
copies certified or otherwise identified to our satisfaction, of such other
records, documents, certificates, or other instruments as we have deemed
necessary or advisable for the purposes of this opinion. For purposes of our
opinion rendered in paragraph 1 below, with respect to the authority of State
Street to operate as a national banking association and exercise trust
powers, our opinion relies upon and is limited by such Certificate of the
Comptroller of the Currency.
We have assumed the genuineness of all signatures (other than those
on behalf of State Street and the Pass Through Trustee), the conformity to
the originals of all documents reviewed by us as copies, and the authenticity
and completeness of all original documents reviewed by us in original or copy
form and the legal competence of each individual executing any document
(other than on behalf of State Street and the Pass Through Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates and the partner of the firm
responsible for State Street corporate trust matters, and without any special
or additional investigation undertaken for the purposes of this opinion.
Subject to the limitation set forth below, we have made such
examinations of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the State of Connecticut as applied by courts located in
Connecticut and the federal laws of the United States. No opinion is given
herein as to the choice of law or internal substantive rules of law that any
-2-
<PAGE>
court or other tribunal may apply to the transactions contemplated by the
Operative Documents. No opinion is expressed herein as to the application or
effect of federal securities laws or as to the securities or so-called "Blue
Sky" laws of any state or other jurisdiction. In addition, no opinion is
expressed as to matters governed by any law, statute, rule or regulation of
the United States relating to the acquisition, ownership, registration, use,
operation, maintenance, repair, replacement or sale of or the nature of the
Aircraft.
To the extent to which this opinion deals with matters governed by
or relating to the laws of the State of New York, or other jurisdiction other
than the State of Connecticut, by which the Operative Documents are stated to
be governed, we have assumed, with your permission that the Operative
Documents are governed by the internal substantive laws of the State of
Connecticut.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
(a) We have assumed without any independent investigation that (i)
each party to the Operative Documents, other than State Street, in its
individual capacity or as Pass Through Trustee, as applicable, at all
times relevant thereto, is validly existing and in good standing under
the laws of the jurisdiction in which it is organized, and is qualified
to do business and in good standing under the laws of each jurisdiction
where such qualification is required generally or necessary in order for
such party to enforce its rights under such Operative Documents, and
(ii) each party to the Operative Documents, at all times relevant
thereto, had and has the full power, authority and legal right under its
certificate of incorporation, partnership agreement, by-laws, and other
governmental organizational documents, and the applicable corporate,
partnership, or other enterprise legislation and other applicable laws,
as the case may be (other than State Street and the Pass Through Trustee
with respect to the laws of the United States of America and the
internal substantive laws of the State of Connecticut, but only in each
case to the limited extent the same may be applicable to State Street or
the Pass Through Trustee, and relevant to our opinions expressed below)
to execute, and to perform its obligations under, the Operative
Documents, and (iii) each party to the Operative Documents (other than
State Street or the Pass Through Trustee, as applicable) has duly
executed and delivered each of such agreements and instruments to which
it is a party and that (other than with respect to State Street and the
Pass Through Trustee, as applicable) the execution and delivery of such
agreements and instruments and the transactions contemplated thereby
have been duly authorized by proper corporate or other organizational
proceedings as to such party.
-3-
<PAGE>
(b) We have assumed without any independent investigation (i) that
each of the Operative Documents is a valid, binding and enforceable
obligation of each party thereto other than State Street or the Pass
Through Trustee, as applicable, and (ii) that each of the Operative
Documents is a valid, binding and enforceable obligation of State Street
or the Pass Through Trustee, as applicable, to the extent that laws
other than those of the State of Connecticut are relevant thereto (other
than the laws of the United States of America, but only to the limited
extent the same may be applicable to State Street or the Pass Through
Trustee, as applicable, and relevant to our opinions expressed below).
(c) The enforcement of any obligations of State Street or the Pass
Through Trustee, as applicable, under any of the Operative Documents may
be limited by the receivership, conservatorship and supervisory powers
of bank regulatory agencies generally, as well as by bankruptcy,
insolvency, reorganization, moratorium, marshaling or other laws and
rules of law affecting the enforcement generally of creditors' rights
and remedies (including such as may deny giving effect to waivers of
debtors' or guarantors' rights); and we express no opinion as to the
status under any fraudulent conveyance laws or fraudulent transfer laws
of any of the obligations of State Street or the Pass Through Trustee,
as applicable, under any of the Operative Documents.
(d) We express no opinion as the availability of any specific or
equitable relief of any kind.
(e) The enforcement of any rights may in all cases be subject to
an implied duty of good faith and fair dealing and to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity) and, as to any rights to collateral
security, will be subject to a duty to act in a commercially reasonable
manner.
(f) We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating to the
(i) waivers of rights to object to jurisdiction or venue, or consents to
jurisdiction or venue, (ii) waivers of rights to (or methods of) service
of process, or rights to trial by jury, or other rights or benefits
bestowed by operation of law, (iii) waivers of any applicable defenses,
setoffs, recoupments, or counterclaims, (iv) the grant of powers of
attorney to any person or entity, (v) exculpation or exoneration
clauses, indemnity clauses, and clauses relating to release or waivers
of unmatured claims or rights, (vi) the imposition or collection of
interest on overdue interest or providing for a penalty rate of interest
or late charges on overdue or defaulted obligations, or the payment of
any premium, liquidated damages, or other amount which may be held by
any court to be a "penalty" or a "forfeiture," or (vii) so-called "usury
-4-
<PAGE>
savings clauses" purporting to specify methods of (or otherwise assure)
compliance with usury laws or other similar laws of any jurisdiction.
(g) We express no opinion as to the effect of events occurring,
circumstances arising, or change of law becoming effective or occurring,
after the date hereof on the matters addressed in this opinion letter,
and we assume no responsibility to inform you of additional or changed
facts, or changes in law, of which we may become aware.
(h) No opinion is given herein as to the effect of usury laws (or
other similar laws) of any jurisdiction with respect to the Operative
Documents.
In rendering the opinion set forth below in paragraph 6 as to
certain Connecticut tax matters, we have assumed that, for federal income tax
purposes, the trust created by the Trust Agreement will not be taxable as a
corporation, but, rather, will be classified as a grantor trust under subpart
E, Part I of Subchapter J of Chapter 1 of Subtitle A of the Internal Revenue
Code of 1986, as amended or as a partnership.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their successors and assigns in
connection with the transactions contemplated by the Operative Documents and
may not be used or relied upon by any other person or for any other purpose.
1. State Street is a national banking association, validly formed
and authorized to operate as a national banking association under the laws of
the United States of America and, in its individual capacity or as Pass
Through Trustee, as the case may be, has or had, as the case may be, the
requisite corporate and trust power and authority to execute, deliver and
perform its obligations under the Operative Documents and in its capacity as
Pass Through Trustee, to issue and execute the Certificates delivered on the
Issuance Date.
2. State Street, in its individual capacity or as Pass Through
Trustee, as the case may be, has duly authorized by all necessary corporate
action the Operative Documents and has duly executed and delivered the
Operative Documents, and the Operative Documents constitute valid and binding
obligations of State Street, in its individual capacity or as Pass Through
Trustee, as the case may be, enforceable against State Street, in its
individual capacity or as Pass Through Trustee, as the case may be, in
accordance with their respective terms.
3. The Certificates issued and dated the Issuance Date have been
duly issued, authenticated and delivered by State Street as Pass Through
Trustee pursuant to the terms of the Operative Documents and are enforceable
-5-
<PAGE>
against the Pass Through Trustee and are entitled to the benefits of the
applicable Pass Through Trust.
4. The authorization, execution, delivery and performance by
State Street, in its individual capacity or as Pass Through Trustee, as the
case may be, of the Operative Documents and the consummation of the
transactions therein contemplated and compliance with the terms thereof do
not and will not result in the violation of the provisions of the charter
documents or by-laws of State Street and, to the best of our knowledge, do
not conflict with, or result in a breach of any terms or provisions of, or
constitute a default under, or result in the creation or the imposition of
any lien, charge or encumbrance upon any property or assets of State Street
under any indenture, mortgage or other agreement or instrument, in each case
known to us, to which State Street is a party or by which it is bound, or
violates any applicable Connecticut or federal law, rule or regulation
governing State Street's banking or trust powers, or, to the best of our
knowledge, of any judgment, order or decree, in each case known to us,
applicable to State Street of any court, regulatory body, administrative
agency, government or governmental body having jurisdiction over State
Street.
5. No authorization, approval, consent, license or order of,
giving of notice to, registration with, or taking of any other action in
respect of, any federal or state governmental authority or agency pursuant to
any federal or Connecticut law governing the banking or trust powers of State
Street is required for the authorization, execution, delivery and performance
by State Street, in its individual capacity or as Pass Through Trustee, as
the case may be, of the Operative Documents or the consummation of any of the
transactions by State Street, in its individual capacity or as Pass Through
Trustee, as the case may be, contemplated thereby (except as shall have been
duly obtained, given or taken); and such authorization, execution, delivery,
performance, consummation and issuance do not conflict with or result in a
breach of the provisions of any such law.
6. There are no taxes, fees or other governmental charges payable
under the laws of the State of Connecticut or any political subdivision of
such State in connection with the execution and delivery by State Street, in
its individual capacity or as Pass Through Trustee, as the case may be, of
the Operative Documents (except for taxes on any fees payable to State Street
in its individual capacity) or in connection with the issuance, execution and
delivery of the Certificates by State Street, as Pass Through Trustee,
pursuant to the Pass Through Trusts which are imposed solely because State
Street has its principal place of business in Connecticut or performs its
administrative duties under the Operative Documents in Connecticut. Neither
State Street, in its individual capacity or as the Pass Through Trustee, as
the case may be, the Indenture Trustee, the Owner Participant, the Owner
Trustee, nor the trust created by the Trust Agreement will, as a result of
-6-
<PAGE>
the transactions contemplated thereby, be subject to any Taxes under the laws
of the State of Connecticut or any political subdivision thereof (except for
Taxes on any fees payable to State Street in its individual capacity) which
are imposed because State Street has its principal place of business in
Connecticut or performs its administrative duties under the Operative
Documents in Connecticut, and there are no Taxes under the laws of the State
of Connecticut or any political subdivision thereof (except for Taxes on any
fees payable to State Street in its individual capacity) upon or with respect
to the Aircraft or any Engine or any part of any interest therein, or the
purchase, ownership, delivery, lease, sublease, possession, presence, use,
operation, condition, storage, maintenance, modification, alteration, repair,
sale, return, transfer or other disposition of the Aircraft or any Engine
which are imposed because State Street has its principal place of business in
Connecticut or performs its administrative duties under the Operative
Documents in Connecticut.
7. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no proceedings pending or overtly
threatened in writing against or affecting State Street in any court or
before any governmental authority, agency, arbitration board or tribunal
which, if adversely determined, individually or in the aggregate, could
reasonably be expected to affect materially and adversely the trust related
to the Indenture or affect the right, power and authority of State Street, in
its individual capacity or as Pass Through Trustee, as the case may be, to
enter into or perform its obligations under the Operative Documents.
Very truly yours,
BINGHAM DANA LLP
-7-
<PAGE>
SCHEDULE A
----------
State Street Bank and Trust Company, as Indenture Trustee
First Security Bank, National Association, as Pass Through Trustee
[___________________], as Owner Participant
Northwest Airlines, Inc., as Lessee
Northwest Airlines Corporation, as Guarantor
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
<PAGE>
Exhibit J-2 to Participation Agreement
--------------------------------------
[Form of Opinion of Bingham Dana LLP,
special counsel for the Subordination Agent]
[_____________, ____]
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
Re: Northwest Airlines, Inc./Leveraged Lease Financing of [Airbus
A319-114] [Boeing 757-251] Aircraft [NW _____ ____] (Subordination
Agent Opinion)
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and Trust
Company in its individual capacity ("State Street") and as Subordination
Agent (the "Subordination Agent") under the Intercreditor Agreement dated as
of June 28, 2000 (the "Intercreditor Agreement") among State Street Bank and
Trust Company of Connecticut, National Association, in its capacity as
Trustee under the Northwest Airlines Pass Through Trust 2000-1G and Northwest
Airlines Pass Through Trust 2000-1C, Credit Suisse First Boston, New York
branch, as Class G Liquidity Provider and Class C Liquidity Provider, MBIA
Insurance Corporation, and State Street, as Subordination Agent in connection
with the execution and delivery of the Participation Agreement [NW ____]
dated as of [________________] (the "Participation Agreement") by and among
State Street, as Indenture Trustee, Northwest Airlines, Inc., as Lessee (the
"Lessee"), Northwest Airlines Corporation (the "Guarantor"),
[__________________], as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, as Pass Through Trustee (the
"Pass Through Trustee"), State Street, as Subordination Agent and First
Security Bank, National Association, as Owner Trustee and the transactions
contemplated thereby. Capitalized terms not otherwise defined herein shall
have the meanings specified in the Lease and Section 13 of the Participation
Agreement. This opinion is being delivered pursuant to Section 4(a)(xxv) of
the Participation Agreement.
Our representation of State Street and the Subordination Agent has
been as special counsel for the limited purposes stated above. As to all
matters of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind), we have relied,
with your permission, entirely upon (i) the representations and warranties of
the parties set forth in the Operative Documents and (ii) certificates
delivered to us by the management of State Street and have assumed, without
<PAGE>
independent inquiry, the accuracy of those representations, warranties and
certificates.
We have examined the Participation Agreement, the Note Purchase
Agreement, the Intercreditor Agreement and the Policy Provider Agreement
(together, the "Operative Documents"), the Certificate of the Massachusetts
Commissioner of Banks relating to State Street and originals, or copies
certified or otherwise identified to our satisfaction, of such other records,
documents, certificates, or other instruments as we have deemed necessary or
advisable for the purposes of this opinion. For purposes of our opinion
rendered in paragraph 1 below, with respect to the authority of State Street
to operate as a state-chartered trust company and exercise trust powers, our
opinion relies upon and is limited by such Certificate of the Massachusetts
Commissioner of Banks.
We have assumed the genuineness of all signatures (other than those
on behalf of State Street and the Subordination Agent), the conformity to the
originals of all documents reviewed by us as copies, and the authenticity and
completeness of all original documents reviewed by us in original or copy
form and the legal competence of each individual executing any document
(other than on behalf of State Street and the Subordination Agent).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates and the partner of the firm
responsible for State Street corporate trust matters, and without any special
or additional investigation undertaken for the purposes of this opinion.
Subject to the limitation set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the Commonwealth of Massachusetts as applied by courts
located in Massachusetts and the federal laws of the United States. No
opinion is given herein as to the choice of law or internal substantive rules
of law that any court or other tribunal may apply to the transactions
contemplated by the Operative Documents. No opinion is expressed herein as
to the application or effect of federal securities laws or as to the
securities or so-called "Blue Sky" laws of any state or other jurisdiction.
In addition, no opinion is expressed as to matters governed by any law,
statute, rule or regulation of the United States relating to the acquisition,
ownership, registration, use, operation, maintenance, repair, replacement or
sale of or the nature of the Aircraft.
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To the extent to which this opinion deals with matters governed by
or relating to the laws of the State of New York, or other jurisdiction other
than the Commonwealth of Massachusetts, by which the Operative Documents are
stated to be governed, we have assumed, with your permission that the
Operative Documents are governed by the internal substantive laws of the
Commonwealth of Massachusetts.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
(a) We have assumed without any independent investigation that (i)
each party to the Operative Documents, other than State Street, in its
individual capacity or as Subordination Agent, as applicable, at all
times relevant thereto, is validly existing and in good standing under
the laws of the jurisdiction in which it is organized, and is qualified
to do business and in good standing under the laws of each jurisdiction
where such qualification is required generally or necessary in order for
such party to enforce its rights under such Operative Documents, and
(ii) each party to the Operative Documents, at all times relevant
thereto, had and has the full power, authority and legal right under its
certificate of incorporation, partnership agreement, by-laws, and other
governing organizational documents, and the applicable corporate,
partnership, or other enterprise legislation and other applicable laws,
as the case may be (other than State Street and the Subordination Agent
with respect to the laws of the United States of America and the
internal substantive laws of the Commonwealth of Massachusetts, but only
in each case to the limited extent the same may be applicable to State
Street or the Subordination Agent, and relevant to our opinions
expressed below) to execute, and to perform its obligations under, the
Operative Documents, and (iii) each party to the Operative Documents
(other than State Street or the Subordination Agent, as applicable) has
duly executed and delivered each of such agreements and instruments to
which it is a party and that (other than with respect to State Street
and the Subordination Agent, as applicable) the execution and delivery
of such agreements and instruments and the transactions contemplated
thereby have been duly authorized by proper corporate or other
organizational proceedings as to such party.
(b) We have assumed without any independent investigation (i) that
each of the Operative Documents is a valid, binding and enforceable
obligation of each party thereto other than State Street or the
Subordination Agent, as applicable, and (ii) that each of the Operative
Documents is a valid, binding and enforceable obligation of State Street
or the Subordination Agent, as applicable, to the extent that laws other
than those of the Commonwealth of Massachusetts are relevant thereto
(other than the laws of the United States of America, but only to the
limited extent the same may be applicable to State Street or the
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Subordination Agent, as applicable, and relevant to our opinions
expressed below).
(c) The enforcement of any obligations of State Street or the
Subordination Agent, as applicable, under any of the Operative Documents
may be limited by the receivership, conservatorship and supervisory
powers of bank regulatory agencies generally, as well as by bankruptcy,
insolvency, reorganization, moratorium, marshaling or other laws and
rules of law affecting the enforcement generally of creditors' rights
and remedies (including such as may deny giving effect to waivers of
debtors' or guarantors' rights); and we express no opinion as to the
status under any fraudulent conveyance laws or fraudulent transfer laws
of any of the obligations of State Street or the Subordination Agent, as
applicable, under any of the Operative Documents.
(d) We express no opinion as the availability of any specific or
equitable relief of any kind.
(e) The enforcement of any rights may in all cases be subject to
an implied duty of good faith and fair dealing and to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity) and, as to any rights to collateral
security, will be subject to a duty to act in a commercially reasonable
manner.
(f) We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating to (i)
waivers of rights to object to jurisdiction or venue, or consents to
jurisdiction or venue, (ii) waivers of rights to (or methods of) service
of process, or rights to trial by jury, or other rights or benefits
bestowed by operation of law, (iii) waivers of any applicable defenses,
setoffs, recoupments, or counterclaims, (iv) the grant of power of
attorney to any person or entity, (v) exculpation or exoneration
clauses, indemnity clauses, and clauses relating to releases or waivers
of unmatured claims or rights, (vi) the imposition or collection of
interest on overdue interest or providing for a penalty rate of interest
or late charges on overdue or defaulted obligations, or the payment of
any premium, liquidated damages, or other amount which may be held by
any court to be a "penalty" or a "forfeiture," or (vii) so-called "usury
savings clauses" purporting to specify methods of (or otherwise assure)
compliance with usury laws or other similar laws of any jurisdiction.
(g) We express no opinion as to the effect of events occurring,
circumstances arising, or changes of law becoming effective or
occurring, after the date hereof on the matters addressed in this
opinion letter, and we assume no responsibility to inform you of
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additional or changed facts, or changes in law, of which we may become
aware.
(h) No opinion is given herein as to the effect of usury laws (or
other similar laws) of any jurisdiction with respect to the Operative
Documents.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their successors and assigns in
connection with the transactions contemplated by the Operative Documents and
may not be used or relied upon by any other person or for any other purpose.
1. State Street is a Massachusetts trust company, validly formed
and authorized to operate as a state-chartered trust company under the laws
of the Commonwealth of Massachusetts and, in its individual capacity or as
Subordination Agent, as the case may be, has the requisite corporate and
trust power and authority to execute, deliver and perform its obligations
under the Operative Documents.
2. State Street, in its individual capacity or as Subordination
Agent, as the case may be, has duly authorized the Operative Documents and
has duly executed and delivered the Operative Documents, and the Operative
Documents constitute valid and binding obligations of State Street, in its
individual capacity or as Subordination Agent, as the case may be,
enforceable against State Street, in its individual capacity or as
Subordination Agent, as the case may be, in accordance with their respective
terms.
3. The authorization, execution, delivery and performance by
State Street, in its individual capacity or as Subordination Agent, as the
case may be, of the Operative Documents and the consummation of the
transactions therein contemplated and compliance with the terms thereof do
not and will not result in the violation of the provisions of the charter
documents or by-laws of State Street and, to the best of our knowledge, do
not conflict with, or result in a breach of any terms or provisions of, or
constitute a default under, or result in the creation or the imposition of
any lien, charge or encumbrance upon any property or assets of State Street
under any indenture, mortgage or other agreement or instrument, in each case
known to us, to which State Street is a party or by which it is bound, or
violates any applicable Massachusetts or federal law, rule or regulation
governing State Street's banking or trust powers, or, to the best of our
knowledge, of any judgment, order or decree, in each case known to us,
applicable to State Street of any court, regulatory body, administrative
agency, government or governmental body having jurisdiction over State
Street.
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4. No authorization, approval, consent, license or order of,
giving of notice to, registration with, or taking of any other action in
respect of, any federal or state governmental authority or agency pursuant to
any federal or Massachusetts law governing the banking or trust powers of
State Street is required for the authorization, execution, delivery and
performance by State Street, in its individual capacity or as Subordination
Agent, as the case may be, of the Operative Documents or the consummation of
any of the transactions by State Street, in its individual capacity or as
Subordination Agent, as the case may be, contemplated thereby (except as
shall have been duly obtained, given or taken); and such authorization,
execution, delivery, performance, consummation and issuance do not conflict
with or result in a breach of the provisions of any such law.
5. There are no taxes, fees or other governmental charges payable
under the laws of the Commonwealth of Massachusetts or any political
subdivision of such State in connection with the execution and delivery by
State Street, in its individual capacity or as Subordination Agent, as the
case may be, of the Operative Documents (except for taxes on any fees payable
to State Street in its individual capacity) which are imposed solely because
State Street has its principal place of business in Massachusetts or performs
its administrative duties under the Operative Documents in Massachusetts.
6. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no proceedings pending or overtly
threatened in writing against or affecting State Street in any court or
before any governmental authority, agency, arbitration board or tribunal
which, if adversely determined, individually or in the aggregate, could
reasonably be expected to affect materially and adversely the trust related
to the Indenture or affect the right, power and authority of State Street, in
its individual capacity or as Subordination Agent, as the case may be, to
enter into or perform its obligations under the Operative Documents.
7. Assuming that the Subordination Agent holds each of the
Equipment Notes delivered to and registered in its name pursuant to and as
required by the Intercreditor Agreement, it holds such Equipment Notes in
trust as trustee for the related Trustee in the exercise of the fiduciary
powers conferred upon State Street by Massachusetts law.
Very truly yours,
BINGHAM DANA LLP
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SCHEDULE A
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State Street Bank and Trust Company, as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
First Security Bank, National Association, as Owner Trustee
[_______________], as Owner Participant
Northwest Airlines, Inc., as Lessee
Northwest Airlines Corporation, as Guarantor
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Chase Securities Inc.
U.S. Bancorp Piper Jaffray Inc.
Credit Suisse First Boston, New York Branch
MBIA Insurance Corporation
