Exhibit 4(a)(1)
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XXXXXXXXX
[XX 0000 B]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 747-451 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 ....................................... 6
8. Jurisdictional Matters ............................................... 6
9. Integration; Counterparts; Successors and Assign; 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
GUARANTEE
[NW 1989 B]
This XXXXXXXXX [XX 0000 X], 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 1989 B], dated as of March 15, 1989, between the
Lessee, as lessee, and The First National Bank of Boston, not in its individual
capacity but solely as Owner Trustee (as defined therein), except as expressly
provided therein (the "Original Owner Trustee"), as lessor, and a Lease
Supplement Xx. 0 [XX 0000 X], dated March 16, 1989 (such Lease Agreement, as so
supplemented, the "Original Lease"), relating to one (1) Boeing 747-451
aircraft, together with four (4) Xxxxx & Xxxxxxx Model PW4056 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 1989 B], dated as of March 15, 1989 (the "Original
Participation Agreement"), among the Lessee, ICA Financial Corporation, as owner
participant (the "Original Owner Participant"), and certain other parties; and
WHEREAS, pursuant to an Assignment and Assumption Agreement dated as
of December 19, 1991 by and among the Original Owner Participant, BATCL-1991-II,
Inc., as owner participant (the "Owner Participant"), and Xxxx Atlantic TriCon
Leasing Corporation, a Delaware corporation, as parent of the Owner Participant
(the "Assignment Agreement"), the Original Owner Participant transferred to the
Owner Participant all of its right, title and interest in the Trust Estate, the
Aircraft and the Operative Documents, including without limitation the Original
Lease; and
WHEREAS, pursuant to an Instrument of Transfer, Removal,
Appointment, Assumption and Acceptance dated May 16, 1996 among the Owner
Participant, the Original Owner Trustee and First Security Bank of Utah,
National Association (the "Owner Trustee"), the Owner Trustee succeeded to all
of the estates, properties, rights, powers, duties and trusts of the Original
Owner Trustee as trustee under the Original Trust Agreement and the other
Operative Documents to which the Original Owner Trustee was a party; and
WHEREAS, the Guarantor, the Lessee, the Owner Trustee, the Owner
Participant, State Street Bank and Trust Company, as indenture trustee (the
"Indenture Trustee"), and certain other parties have entered into a Refunding
Agreement [NW 1989 B], dated as of June 3, 1996 (the "Refunding Agreement"),
providing for a refinancing as contemplated by Section 17 of the Original
Participation Agreement; and execute and deliver this Guarantee; and
WHEREAS, pursuant to the Refunding Agreement, (a) the Original
Participation Agreement was amended (as so amended, the "Participation
Agreement"), (b) the Original Lease was amended and restated on June 3, 1996 (as
so amended and restated, the "Lease"), (c) the Owner Trustee and the Indenture
Trustee entered into the Trust Indenture and Security Agreement [NW 1989 B],
together with a Trust Agreement and Indenture Supplement covering the Aircraft
(as so supplemented, the "Trust Indenture"), and new secured certificates in
four series substantially in the form set forth in Section 2.01 of the Trust
Indenture (the "Secured Certificates") were issued, and (d) the Owner Trustee as
lessor under the lease (the "Lessor") assigned by way of collateral security
certain of its right, title and interest in and to this Guarantee to the
Indenture Trustee pursuant the Trust Indenture, as security for the obligations
of the Lessor referred to therein; and
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 for 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 hereinafter 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
solar
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proceedings affecting the status, 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.
(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 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
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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 many 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
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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 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.
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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 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 he 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 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, Wickershatn & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 4892,
Attention: Managing Attorney, or such office of the Guarantor in New York City
as from time to time may he designated by the Guarantor in writing to the
Parties.
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9. Integration; Counterparts; Successors and Assign; 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 or
pursuant to the Refunding Agreement.
All requests, notices or other communications shall be given in the manner, and
shall be effective at the time 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 Guarantee regardless of any investigation made by
any Party or any other Person.
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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.
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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/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
General Counsel and Secretary
SCHEDULE I
TO GUARANTEE
[NW 1989 B]
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
BATCL-1991-II,Inc., as Owner Participant
