Exhibit 4(b)(2)
SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of November 20, 1998 (this
"Supplemental Indenture" or "Guarantee"), among Northwest Airlines Corporation
(formerly known as Newbridge Parent Corporation), a Delaware corporation (the
"Guarantor"), Northwest Airlines Holdings Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation (the "Original
Guarantor"), Northwest Airlines, Inc., a Delaware corporation (together with its
successors and assigns, the "Company"), as Lessee, Wilmington Trust Company, not
in its individual capacity except as expressly provided therein but solely as
Owner Trustee (the "Owner Trustee") and State Street Bank and Trust Company of
Connecticut, National Association, as Indenture Trustee under the Indenture
referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Original Guarantor, the Owner Trustee and
the Indenture Trustee have heretofore executed and delivered the Class B Trust
Indenture, dated as of March 10, 1994 (as amended, supplemented, waived or
otherwise modified, the "Indenture");
WHEREAS, pursuant to the Indenture the Owner Trustee has issued its
Class B Notes (the "Securities");
WHEREAS, the Original Guarantor has guaranteed the Securities;
WHEREAS, as of the date of this Supplemental Indenture, Newbridge
Merger Corporation, a wholly owned subsidiary of the Guarantor, will merge with
and into the Original Guarantor, with the Original Guarantor as the surviving
corporation, in accordance with Section 251(g) of the General Corporation Law of
the State of Delaware and pursuant to the Agreement and Plan of Merger, dated as
of January 25, 1998 (as amended and restated as of October 30, 1998, the "Merger
Agreement") among the Original Guarantor, the Guarantor and Newbridge Merger
Corporation, and thereafter the Original Guarantor shall be a wholly owned
subsidiary of the Guarantor; and
WHEREAS, pursuant to Section 11.4 of the Indenture, the Indenture
Trustee and the Owner Trustee are authorized to execute and deliver this
Supplemental Indenture to amend the Indenture, without the consent of any Holder
of Securities; and
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Owner Trustee and the Indenture Trustee mutually covenant and
agree for the equal and ratable benefit of the holders of the Securities as
follows:
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ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Guarantee, terms defined
in the Indenture or in the preamble or recitals hereto are used herein as
therein defined, except that the term "Holders" in this Guarantee shall refer to
the term "Holders" as defined in the Indenture and the Indenture Trustee acting
on behalf or for the benefit of such holders. The words "herein," "hereof" and
"hereby" and other words of similar import used in this Supplemental Indenture
refer to this Supplemental Indenture as a whole and not to any particular
section hereof.
ARTICLE II
Guarantee
SECTION 2.1 Guarantee. The Guarantor, as primary obligor and not as
surety, hereby unconditionally and irrevocably guarantees to Lessor, the due,
punctual and full payment by Lessee of all amounts of Interim Rent, Basic Rent,
Supplemental Rent, Stipulated Loss Value, Fair Market Sales Value and all other
amounts (including, without limitation, amounts payable as damages in case of
default) to be paid by Lessee pursuant to the Lease, whether such obligations
now exist or arise hereafter, as and when the same shall become due and payable
in accordance with the terms thereof (such obligations being hereinafter called
the "Obligations"). The Guarantor further agrees to pay Lessor on demand any and
all costs and expenses (including reasonable fees and disbursements of counsel)
that may be paid or incurred by Lessor in collecting any Obligations or in
preserving or enforcing any rights under this Guarantee or under the
Obligations.
This Guarantee is a guarantee of payment, performance and compliance
and not of collectibility, is in no way conditioned or contingent upon any
attempt to collect from or enforce performance or compliance by Lessee or the
Original Guarantor, or upon any other event, contingency or circumstance
whatsoever, and shall be binding upon and against the Guarantor without regard
to the validity or enforceability of the Lease.
If for any reason whatsoever Lessee shall fail or be unable duly,
punctually and fully to pay any of the Obligations as and when the same shall
become due and payable or to perform or comply with any of the Obligations, the
Guarantor will immediately pay or cause to be paid such Obligations to the
Person or Persons entitled to receive the same (according to their respective
interests) under the terms of the Lease, or perform or comply with any such
Obligation or cause the same to be performed or complied with, together with
interest on any amount due and owing from Lessee at the rate provided for by the
Lease from the date the same shall have become due and payable to the date of
payment.
SECTION 2.2 Guarantor's Obligations Unconditional. The covenants and
agreements of the Guarantor set forth herein shall be primary obligations of the
Guarantor, and such obligations shall be continuing, absolute and unconditional,
shall not be subject to any
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counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension,
deferment, reduction or defense (other than full and strict compliance by the
Guarantor with its obligations hereunder), whether based upon any claim that
Lessee or the Guarantor or any other Person may have against Lessor or any other
Person or otherwise, and shall remain in full force and effect without regard
to, and shall not, to the fullest extent permitted by applicable laws, be
released, discharged or in any way affected by, any circumstance or condition
whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or
notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or
renewal to or other change in the Obligations, the Lease or any other
Operative Document or any of the agreements referred to in any thereof, or
any other instrument or agreement applicable to any Operative Document or
any of the parties to such agreements, or to the Aircraft, or any
assignment, mortgage or transfer thereof or of any interest therein, or
any furnishing or acceptance of additional security for, guarantee of, or
right of offset with respect to, any of the Obligations; or the failure or
release of any security or the failure of Lessor to perfect or insure any
interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor
to conform or comply with any term of any instrument or agreement referred
to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release
or other action or inaction under or in respect of any instrument,
agreement, guarantee, right of offset or security referred to in clause
(a) above or any obligation or liability of Lessee or Lessor, or any
exercise or nonexercise by Lessor of any right, remedy, power or privilege
under or in respect of any such instrument, agreement, guarantee, right of
offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect
to Lessee, Lessor or any other Person or any of their respective
properties or creditors, or any action taken by any trustee, receiver,
other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person
under the Lease or any other Operative Document, the Obligations, any
collateral security for the Obligations or any other guarantee of the
Obligations or any reductions, limitation, impairment, discharge,
termination, cancellation, frustration, irregularity, invalidity or
unenforceability, in whole or in part, of any of the foregoing, the
obligations under the Lease or any other agreement, instrument, guarantee
or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications,
condition, design, operation or fitness for use of or any damage to or
loss or destruction of, or any interruption or cessation in the use of the
Aircraft or any part thereof by Lessee or any other Person for any reason
whatsoever (including, without limitation, any governmental prohibition or
restriction, condemnation, requisition, seizure or any other act on the
part
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of any governmental or military authority, or any act of God or of the
public enemy) regardless of the duration thereof (even though such
duration would otherwise constitute a frustration of a lease), whether or
not resulting from accident and whether or not without fault on the part
of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or
consolidation of the Guarantor into or with any other corporation or
partnership or any sale, lease or transfer of any of the assets of Lessee
or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar
or dissimilar to the foregoing and any other circumstance that might
otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or that might otherwise limit
recourse against the Guarantor.
The obligations of the Guarantor, set forth herein constitute the
full recourse obligations of the Guarantor enforceable against it to the full
extent of all its assets and properties, notwithstanding any provision in the
Lease or any other agreement limiting the liability of Lessor or any other
Person.
Nothing herein shall prohibit Lessor from exercising its rights
against the Guarantor or any other Person simultaneously, jointly or severally.
The Guarantor shall be bound by each and every ruling, order and judgment
obtained by Lessor in respect of any of the obligations guaranteed hereunder
whether or not the Guarantor is a party to the action or proceeding in which
such ruling, order or judgment is issued or rendered.
SECTION 2.3 Limitation on Liability. Any term or provision of this
Guarantee to the contrary notwithstanding, the maximum aggregate amount
guarantied hereunder by the Guarantor shall not exceed the maximum amount that
can be hereby guarantied without rendering this Guarantee, as it relates to such
Guarantor, voidable under applicable law, including without limitation
applicable law relating to fraudulent conveyance or fraudulent transfer or
affecting the rights or remedies of creditors generally.
ARTICLE III
Miscellaneous
SECTION 3.1 Governing Law. This Agreement shall be governed by the
laws of the State of New York.
SECTION 3.2 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
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SECTION 3.3 Entire Agreement. This Supplemental Indenture is
intended by the parties to be a final expression of their agreement in respect
of the subject matter contained herein and, together with the Indenture,
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
SECTION 3.4 Ratification of Indenture; Supplemental Indentures Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Indenture Trustee makes no representation or warranty as to the validity or
sufficiency of this Supplemental Indenture.
SECTION 3.5 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.6 Headings. The headings of the Articles and the Sections
in this Supplemental Indenture are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
NORTHWEST AIRLINES CORPORATION
By:
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President, General
Counsel and Secretary
Address: 0000 Xxxx Xxx Xxxxxxx
Xxxxx, XX 00000
NORTHWEST AIRLINES, INC., as Lessee
By:
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President, General
Counsel and Secretary
NORTHWEST AIRLINES HOLDINGS CORPORATION
By:
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executve Vice President, General
Counsel and Secretary
WILMINGTON TRUST COMPANY, as Owner
Trustee
By:
/s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Financial Services Officer
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STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Indenture Trustee
By:
/s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
