Exhibit 4(a)(5)
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XXXXXXXXX
[XX 0000 A]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 757-251 Aircraft
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TABLE OF CONTENTS TO GUARANTEE
Page
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. Representations and Warranties ....................................... 5
8. Jurisdictional Matters ............................................... 6
9. Integration; Counterparts; Successors and Assigns; Headings .......... 7
10. Notices .............................................................. 7
11. No Waivers ........................................................... 7
12. Survival ............................................................. 7
13. Severability ......................................................... 8
14. GOVERNING LAW ........................................................ 8
15. Enforcement Expenses ................................................. 8
16. Termination .......................................................... 8
17. No Guarantee of Secured Certificates ................................. 8
XXXXXXXXX
[XX 0000 A]
This GUARANTEE [NW 1996 A], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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").
WHEREAS, Northwest Airlines, Inc., a Minnesota corporation (the
"Lessee"), an indirect wholly-owned subsidiary of the Guarantor, has entered
into a Lease Agreement [NW 1996 A], dated as of February 27, 1996 (as amended,
modified or supplemented from time to time, the "Lease"), between the Lessee and
First Security Bank of Utah, 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) Boeing 757-251
aircraft, together with two (2) Xxxxx & Xxxxxxx Model PW2037 engines (such
aircraft and engines, and any substitute Airframe and Engines under the Lease,
being collectively referred to herein as the "Aircraft"), pursuant to a
Participation Agreement [NW 1996 A], dated February 27, 1996 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among the Lessee and the Parties; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1996 A], dated February 27, 1996, between the Lessor and
the Indenture Trustee (as amended, modified or supplemented from time to time,
the "Trust Indenture"), as security for the obligations of the Lessor referred
to therein;
WHEREAS, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as 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 Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
hereto 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 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.
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(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 any 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
in writing 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 in writing
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 existing for the
Obligations, including the Trust Estate or the Trust Indenture Estate (as such
term is defined in the Trust Indenture), 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
3
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 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:
(a) while an Event of Default shall have occurred and be continuing,
in which
4
case no such payment in respect of such a claim by the Guarantor may be
made by the Lessee; or
(b) 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 (as such term is defined in the Trust Indenture).
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. Representations and Warranties. The Guarantor hereby represents and
warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in good
standing
5
pursuant to the laws of the State of Delaware. It has all requisite
corporate power and authority to own and operate its properties, to carry
on its business as presently conducted and to enter into and perform its
obligations under this Guarantee.
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the
taking of any other action in respect of, any Federal, state, municipal or
other governmental department, bureau, agency or instrumentality, and no
filing, recording, publication or registration in any public office or any
other place, is now, or under existing law in the future will be, required
or necessary on its behalf to authorize the execution, delivery and
performance (other than as contemplated by the Operative Documents in the
case of the performance of the Non-Financial Obligations) by it of this
Guarantee, or for the legality, validity, binding effect or enforceability
hereof.
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under, or result in any creation or
imposition of any Lien upon any of its property or assets under, any
applicable laws or any indenture, mortgage, deed of trust or other
instrument or agreement to which it is a party or by which it may be bound
or to which any of its property or assets may be subject, or its Articles
of Incorporation or by-laws.
(d) The execution, delivery and performance by it of this Guarantee
have been duly authorized by all necessary corporate action. This
Guarantee has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable in accordance with its
terms except as enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
8. 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 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.
6
9. 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.
10. Notices. All requests, notices or other communications hereunder shall be
in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 0000 Xxxxxxxxx Xxxxx (X0000)
Xx. Xxxx, Xxxxxxxxx 00000-0000
for overnight courier:
0000 Xxxx Xxx Xxxxxxx (X0000)
Xxxxx, Xxxxxxxxx 00000
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (000) 000-0000
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.
11. 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.
12. 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
7
Guarantee regardless of any investigation made by any Party or any other
Person.
13. 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 Document, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
14. 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.
15. 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.
16. 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.
17. 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.
8
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/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
General Counsel and Secretary
SCHEDULE I
TO GUARANTEE
[NW 1996 A]
PARTIES
First Security Bank of Utah, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
FINOVA Capital Corporation
ABN AMRO Bank N.V.
Bankers Trust Company
Chemical Bank
The Chase Manhattan Bank (National Association)
Rabobank Nederland (Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.)
The Bank of Nova Scotia
The Bank of Tokyo Trust Company
Banque Francaise du Commerce Exterieur
Banque Nationale de Paris
Banque Paribas
Compagnie Financiere de CIC et de l'Union Europeenne
Credit Suisse
De Nationale Investeringsbank N.V.
Hamburgische Landesbank-Girozentrale
Internationale Nederlanden Lease Ireland B.V., Dublin
KB Financial Services Ireland)
Landesbank Hessen-Thuringen Girozentrale
The Nippon Credit Bank, Ltd., Los Angeles Agency
Norddeutsche Landesbank Girozentrale
PNC Bank, National Association
Royal Bank of Canada
Westland/Utrecht Hypotheekbank N.V.
The Yasuda Trust and Banking Company, Ltd.
Berliner Bank AG, London Branch