Exhibit 4(a)(5)
AMENDED AND RESTATED
GUARANTEE
[NW 1997 L]
Dated as of May 1, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
TABLE OF CONTENTS TO GUARANTEE
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Page
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1. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2. No Implied Third Party Beneficiaries. . . . . . . . . . . . . . . . . . .4
3. Waiver; No Set-off; Reinstatement; Subrogation. . . . . . . . . . . . . .4
4. Amendments, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
5. Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
6. Assignment of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . .5
7. Jurisdictional Matters. . . . . . . . . . . . . . . . . . . . . . . . . .5
8. Integration; Counterparts; Successors and Assigns; Headings . . . . . . .6
9. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
10. No Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
11. Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
12. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
14. Enforcement Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . .7
15. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
16. No Guarantee of Secured Certificates. . . . . . . . . . . . . . . . . . .7
GUARANTEE
[NW 1997 L]
This AMENDED AND RESTATED GUARANTEE [NW 1997 L], dated as of May 1, 1998
(as amended, modified or supplemented from time to time, the or this
"Guarantee"), from NORTHWEST AIRLINES CORPORATION, a Delaware corporation
(together with its permitted successors and assigns, the "Guarantor"), to the
parties listed in Schedule I hereto (collectively, together with their
successors and permitted assigns, the "Parties", and, individually, a "Party")
does hereby amend and restate in its entirety the Guarantee [NW 1997 L], dated
as of September 25, 1997 (the "Original Guarantee"), from the Guarantor to the
entities named therein.
WHEREAS, on September 25, 0000, Xxxxxxxxx Xxxxxxxx, Xxx., a Minnesota
corporation (the "Lessee"), an indirect wholly-owned subsidiary of the
Guarantor, the Guarantor, two of the Parties, and certain other entities entered
into a Participation Agreement [NW 1997 L], dated as of September 25, 1997 (the
"Original Participation Agreement");
WHEREAS, pursuant to the Assignment and Assumption Agreement, the Initial
Owner Participant has assigned the Beneficial Interest to the Owner Participant;
WHEREAS, the Lessee, the Guarantor, the Owner Participant, the Owner
Trustee, the Indenture Trustee, the Pass Through Trustee and the Subordination
Agent have concurrently herewith amended and restated the Original Participation
Agreement in its entirety by entering into an Amended and Restated Participation
Agreement [NW 1997 L], dated as of the date hereof (as amended, modified or
supplemented from time to time, the "Participation Agreement"); and
WHEREAS, the Lessee wishes to enter into a Lease Agreement [NW 1997 L],
dated as of the date hereof (as amended, modified or supplemented from time to
time, the "Lease"), between the Lessee and First Security Bank, National
Association, not in its individual capacity but solely as Owner Trustee (as
defined therein), except as expressly provided therein (the "Lessor"), initially
relating to one (1) British Aerospace Avro 146-RJ85A aircraft, together with
four (4) Allied Signal LF507 type engines (such aircraft and engines, and any
substitute Airframe and Engines under the Lease, being collectively referred to
herein as the "Aircraft"), pursuant to the Participation Agreement; and
WHEREAS, it is a condition precedent to the obligations of the Parties to
consummate the transactions contemplated by the Participation Agreement that the
Guarantor execute and deliver this Guarantee; and
WHEREAS, the Lessor has assigned by way of collateral security certain of
its right, title and interest in and to this Guarantee to the Indenture Trustee,
pursuant to a Trust Indenture and Security Agreement [NW 1997 L], dated as of
September 25, 1997, as amended by the First Amendment thereto dated as of the
date hereof, between the Lessor and the
Indenture Trustee (as so amended and as amended, modified or supplemented from
time to time, the "Trust Indenture"), as security for the obligations of the
Lessor referred to therein; and
WHEREAS, the capitalized terms used herein that are not defined herein are
used herein as defined in Appendix A to the Participation Agreement;
NOW, THEREFORE, in order to induce the Lessor to enter into the Lease and
to induce the other Parties referred to above to enter into the Participation
Agreement and for other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto hereby amend and restate the Original
Guarantee in its entirety and agree as follows:
1. Guarantee.
(a) The Guarantor does hereby acknowledge that it is fully aware of the
terms and conditions of the Lease, the Participation Agreement and the other
Operative Documents and the transactions and the other documents contemplated
thereby, and does hereby irrevocably and fully and unconditionally guarantee,
as primary obligor and not as surety merely, to the Parties, as their
respective interests may appear, the payment by the Lessee of all payment
obligations when due under the Lease (including, without limitation, Basic
Rent and Supplemental Rent), the Participation Agreement, the Tax Indemnity
Agreement and the other Operative Documents to which the Lessee is a party
(such obligations of the Lessee guaranteed hereby being hereafter referred
to, individually, as a "Financial Obligation" and, collectively, as the
"Financial Obligations") in accordance with the terms of the Operative
Documents, and the timely performance of all other obligations of the Lessee
thereunder (individually, a "Nonfinancial Obligation" and, collectively, the
"Nonfinancial Obligations" or, collectively with the Financial Obligations,
the "Obligations"). The Guarantor does hereby agree that in the event that
the Lessee fails to pay any Financial Obligation when due for any reason
(including, without limitation, the liquidation, dissolution, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of, or other similar
proceedings affecting the status, existence, assets or obligations of, the
Lessee, or the disaffirmance with respect to the Lessee of the Lease or the
Operative Documents to which the Lessee is a party in any such proceeding)
within five days after the date on which such Financial Obligation became due
and payable and the applicable grace period has expired, the Guarantor shall
pay or cause to be paid forthwith, upon the receipt of notice from any Party
(such notice to be sent to the Lessee (to the extent such Party is not stayed
or prevented from doing so by operation of law) and the Guarantor) stating
that such Financial Obligation was not paid when due and for five days after
the applicable grace period has expired, the amount of such Financial
Obligation. The Guarantor hereby agrees that in the event the Lessee fails
to perform any Nonfinancial Obligation for any reason (including, without
limitation, the liquidation, dissolution, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceedings
affecting the status, existence, assets or obligations of, the Lessee, or the
disaffirmance with respect to the Lessee of the Lease or the Operative
Documents to which the Lessee is a party in any such
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proceeding) within 10 Business Days after the date on which such Nonfinancial
Obligation is required to be performed (for avoidance of doubt, to include
any applicable grace period), the Guarantor shall cause such Nonfinancial
Obligation to be performed within 10 Business Days following the receipt of
notice from any Party (such notice to be sent to the Lessee (to the extent
such Party is not stayed or prevented from doing so by operation of law) and
the Guarantor) stating that such Nonfinancial Obligation was not performed
when so required and that any applicable grace period has expired.
(b) The obligations of the Guarantor hereunder shall not be, to the
fullest extent permitted by law, affected by: the genuineness, validity,
regularity or enforceability (or lack thereof) of any of the Lessee's
obligations under the Lease or other Operative Document to which the Lessee is a
party, any amendment, waiver or other modification of the Lease or such other
Operative Document (except that any such amendment or other modification shall
be given effect in determining the obligations of the Guarantor hereunder), or
by any substitution, release or exchange of collateral for or other guaranty of
any of the Obligations (except to the extent that such substitution, release or
exchange is undertaken in accordance with the terms of the Operative Documents)
without the consent of the Guarantor, or by any priority or preference to which
any other obligations of the Lessee may be entitled over the Lessee's
obligations under the Lease and the other Operative Documents to which the
Lessee is a party, or by any other circumstance that might otherwise constitute
a legal or equitable defense to or discharge of the obligations of a surety or
guarantor including, without limitation, any defense arising out of any laws of
the United States of America or any State thereof which would excuse, discharge,
exempt, modify or delay the due or punctual payment and performance of the
obligations of the Guarantor hereunder. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not, to the fullest extent permitted by law, affect the liability of the
Guarantor hereunder: (a) the extension of the time for or waiver of, at any
time or from time to time, without notice to the Guarantor, the Lessee's
performance of or compliance with any of its obligations under the Operative
Documents (except that such extension or waiver shall be given effect in
determining the obligations of the Guarantor hereunder), (b) any assignment,
transfer, sublease or other arrangement by which the Lessee transfers possession
or loses control of the use of the Aircraft, (c) any defect in the title,
condition, design, operation or fitness for use of, or damage to or loss or
destruction of, the Aircraft, whether or not due to the fault of the Lessee, (d)
any merger or consolidation of the Lessee or the Guarantor into or with any
other Person, or any sale, transfer, lease or disposal of any of its assets or
(e) any change in the ownership of any shares of capital stock of the Lessee.
(c) This Guarantee is an absolute, present and continuing guaranty of
payment and performance and not of collectability and is in no way conditional
or contingent upon any attempt to collect from the Lessee any unpaid amounts due
or otherwise to enforce performance by the Lessee. The Guarantor specifically
agrees, to the fullest extent permitted by law, that it shall not be necessary
or required, and that the Guarantor shall not be entitled to require, that any
Party (i) file suit or proceed to obtain or assert a claim for personal judgment
against the Lessee for the Obligations, or (ii) make any effort at collection of
the Obligations from the Lessee, or (iii) foreclose against or seek to realize
upon any security now or hereafter
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existing for the Obligations, including the Trust Estate or the Trust Indenture
Estate, or (iv) file suit or proceed to obtain or assert a claim for personal
judgment against any other Person liable for the Obligations, or make any effort
at collection of the Obligations from any such other Person, or exercise or
assert any other right or remedy to which any Party is or may be entitled in
connection with the Obligations or any security or other guaranty therefor, or
(v) assert or file any claim against the assets of the Lessee or any other
guarantor or other Person liable for the Obligations, or any part thereof,
before or as a condition of enforcing the liability of the Guarantor under this
Guarantee or requiring payment of said Obligations by the Guarantor hereunder,
or at any time thereafter.
(d) The Guarantor agrees, to the fullest extent permitted by law, that,
without limiting the generality of this Guarantee, if an Event of Default
shall have occurred and be continuing and the Lessor (or any assignee thereof
including, without limitation, the Indenture Trustee) shall be prevented by
applicable law from exercising its remedies (or any of them) under Section 15
of the Lease, the Lessor (or any assignee thereof, including, without
limitation, the Indenture Trustee) shall be, nevertheless, entitled to
receive hereunder from the Guarantor, upon demand therefor the sums that
would otherwise have been due from the Lessee under the Lease had such
remedies been able to be exercised. The Guarantor hereby unconditionally
waives, to the fullest extent permitted by law, any requirement that, as a
condition precedent to the enforcement of the obligations of the Guarantor
hereunder, the Lessee or all or any one or more of any other guarantors of
any of the Obligations be joined as parties to any proceedings for the
enforcement of any provision of this Guarantee.
2. No Implied Third Party Beneficiaries. This Guarantee shall not be
deemed to create any right in any Person except a Party and shall not be
construed in any respect to be a contract in whole or in part for the benefit
of any other Person.
3. Waiver; No Set-off; Reinstatement; Subrogation. The Guarantor
waives notice of the acceptance of this Guarantee and of the performance or
nonperformance by the Lessee, demand for payment from the Lessee or any other
Person, notice of nonpayment or failure to perform on the part of the Lessee,
diligence, presentment, protest, dishonor and, to the fullest extent
permitted by law, all other demands or notices whatsoever, other than the
request for payment hereunder and notice provided for in Section 1 hereof.
The obligations of the Guarantor shall be absolute and unconditional and
shall remain in full force and effect until satisfaction of all Obligations
hereunder and, without limiting the generality of the foregoing, to the
extent not prohibited by applicable law, shall not be released, discharged or
otherwise affected by the existence of any claims, set-off, defense or other
rights that the Guarantor may have at any time and from time to time against
any Party, whether in connection herewith or any unrelated transactions.
This Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any Financial Obligation is rescinded
or must otherwise be returned by any Party upon the insolvency, bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution, liquidation
or similar proceeding with respect to the Lessee or otherwise, all as though
such payment had not been made. The Guarantor, by virtue of any payment or
performance hereunder to a Party, shall be subrogated to such Party's claim
against the Lessee or any other Person relating
4
thereto; provided, however, that the Guarantor shall not be entitled to receive
payment from the Lessee in respect of any claim against the Lessee arising from
a payment by the Guarantor in the event of any insolvency, bankruptcy,
liquidation, reorganization or other similar proceedings relating to the Lessee,
or in the event of any proceedings for voluntary liquidation, dissolution or
other winding-up of the Lessee, whether or not involving insolvency or
bankruptcy proceedings, in which case the Obligations shall be paid and
performed in full before any payment in respect of a claim by the Guarantor
shall be made by or on behalf of the Lessee.
4. Amendments, Etc. No amendment of or supplement to this Guarantee,
or waiver or modification of, or consent under, the terms hereof, shall be
effective unless evidenced by an instrument in writing signed by the
Guarantor and each Party against whom such amendment, supplement, waiver,
modification or consent is to be enforced.
5. Payments. All payments by the Guarantor hereunder in respect of
any Obligation shall be made in Dollars and otherwise as provided in the
Lease, the Participation Agreement or any other Operative Document in which
such Obligation is contained; provided that the Guarantor consents to all the
terms of the Trust Indenture and agrees to make all payments hereunder
directly to the Indenture Trustee until such time as the Indenture Trustee
shall give notice to the Guarantor that the Lien of the Trust Indenture has
been fully discharged and thereafter to the Owner Trustee; provided, further,
that the Guarantor shall pay directly to the Lessor, in its individual
capacity, or to the Owner Participant or another Party, as the case may be,
any amount owing to such Person as Supplemental Rent for indemnities provided
in Section 7 of the Participation Agreement or the Tax Indemnity Agreement or
otherwise not constituting part of the Trust Indenture Estate.
6. Assignment of Guarantee. As and to the extent provided in the
Trust Indenture, the Lessor will assign, and create a security interest in,
certain of its rights hereunder to and for the benefit of the Indenture
Trustee. From and after the execution and delivery of the Trust Indenture,
and until receipt by the Guarantor of a written notice from the Indenture
Trustee to the effect that the Trust Indenture has been fully satisfied and
discharged, no remedy or election hereunder may be exercised by the Lessor or
consent given by the Lessor, except by or with the prior written consent of
the Indenture Trustee, and the Guarantor will make payment of all amounts
hereunder that are assigned to the Indenture Trustee directly to the
Indenture Trustee, and such payments shall discharge the obligations of the
Guarantor to the Lessor to the extent of such payments.
7. Jurisdictional Matters. The Guarantor (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
Guarantee brought by any party, 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 Guarantee
may
5
not be enforced in or by such courts. The Guarantor hereby generally consents
to service of process at Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Managing Attorney, or such office of the
Guarantor in New York City as from time to time may be designated by the
Guarantor in writing to the Parties.
8. Integration; Counterparts; Successors and Assigns; Headings. This
Guarantee (a) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the Guarantor and
the Parties, with respect to the subject matter hereof, (b) may be executed
in several counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument, and (c) shall
be binding upon the successors and assigns of the Guarantor and shall inure
to the benefit of, and shall be enforceable by, each of the Parties to the
fullest extent permitted by applicable laws. The headings in this Guarantee
are for purposes of reference only, and shall not limit or otherwise affect
the meanings hereof.
9. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
If to the Guarantor:
to the address or telecopy number set forth in the
Participation Agreement
If to a Party:
to the address or telecopy number set forth in the
Participation Agreement
All requests, notices or other communications shall be given in the manner, and
shall be effective at the times and under the terms, set forth in Section 13(b)
of the Participation Agreement.
10. No Waivers. No failure on the part of any Party to exercise, no delay
in exercising, and no course of dealing with respect to, any right or remedy
hereunder will operate as a waiver thereof; nor will any single or partial
exercise of any right or remedy hereunder preclude any other or further exercise
of such right or remedy or the exercise of any other right or remedy.
11. Survival. All representations and warranties contained herein or made
in writing by the Guarantor in connection herewith shall survive the execution
and delivery of this Guarantee regardless of any investigation made by any Party
or any other Person.
12. Severability. To the fullest extent permitted by applicable law, any
provision of this Guarantee that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or any provision in any other Operative
6
Document, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
13. GOVERNING LAW. THIS GUARANTEE IS DELIVERED IN, AND SHALL (AND THE
RIGHTS AND DUTIES OF THE GUARANTOR AND THE PARTIES 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
GUARANTEE SHALL BE DEEMED MADE WHEN DELIVERED IN NEW YORK, NEW YORK.
14. Enforcement Expenses. The Guarantor agrees to pay to any Party any
and all reasonable costs and expenses (including reasonable legal fees and
expenses) incurred by such Party in enforcing, or collecting under, this
Guarantee.
15. Termination. Subject to the provisions of Section 3 hereof, this
Guarantee shall terminate upon the indefeasible payment and performance in full
of all of the Obligations.
16. No Guarantee of Secured Certificates. This Guarantee relates only to
the Obligations described in Section 1 and nothing in this Guarantee shall be
deemed to constitute a guarantee of payment of any of the Secured Certificates
or shall give rise to any inference that the Lessee or the Guarantor has so
guaranteed such payment.
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IN WITNESS WHEREOF, the parties hereto have caused this Guarantee to be duly
executed as of the date first hereinabove set forth.
NORTHWEST AIRLINES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President - Finance
and Treasurer
Accepted as of the above date:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
in its individual capacity
and as Owner Trustee
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
STATE STREET BANK AND
TRUST COMPANY,
in its individual capacity
and as Indenture Trustee
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
SCHEDULE I
TO GUARANTEE
[NW 1997 L]
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PARTIES
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First Security Bank, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
Sumitomo Bank Capital Markets, Inc., Owner Participant
