EX-99(F)
EXHIBIT 99(F)
GUARANTEE
[NW ____ __]
Dated as of [_____________]
from
NORTHWEST AIRLINES CORPORATION
One [Airbus A319-114] [Boeing 757-251] Aircraft
TABLE OF CONTENTS TO GUARANTEE
Page
1. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. No Implied Third Party Beneficiaries . . . . . . . . . . . . . . . . 4
3. Waiver; No Set-off; Reinstatement; Subrogation . . . . . . . . . . . 4
4. Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Assignment of Guarantee . . . . . . . . . . . . . . . . . . . . . . . 5
7. Jurisdictional Matters . . . . . . . . . . . . . . . . . . . . . . . 5
8. Integration; Counterparts; Successors and Assigns; Headings . . . . . 5
9. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
10. No Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
11. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
12. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
13. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
14. Enforcement Expenses . . . . . . . . . . . . . . . . . . . . . . . . 6
15. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
16. No Guarantee of Secured Certificates . . . . . . . . . . . . . . . . 6
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GUARANTEE
[NW ____ __]
This GUARANTEE [NW ____ __], dated as of [_____________] (as
amended, modified or supplemented from time to time, 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").
WHEREAS, Northwest Airlines, Inc., a Minnesota corporation (the
"Lessee"), an indirect wholly-owned subsidiary of the Guarantor, wishes to
enter into a Lease Agreement [NW ____ __], 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)
[Airbus A319-114] [Boeing 757-251] aircraft, together with two (2) [CFM
International, Inc. Model CFM56-5A[5]] [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 ____ __], dated as of the date hereof (as
amended, modified or supplemented from time to time, the "Participation
Agreement"), among the Lessee, the Parties and certain other entities; 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 will assign 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
____ __], dated as of the date hereof, 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; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
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 agree as follows:
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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 any other Operative Document 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 any other Operative Document 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
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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 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 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,
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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, 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,
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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 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
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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 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
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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 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:___________________________
Name:
Title:
Accepted as of the above date:
FIRST SECURITY BANK,NATIONAL ASSOCIATION
in its individual capacity
and as Owner Trustee
By: __________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
in its individual capacity
and as Indenture Trustee
By:__________________________________
Name:
Title:
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SCHEDULE I
TO GUARANTEE
[NW ]
PARTIES
First Security Bank, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
[Owner Participant]
