EXHIBIT 99(j)
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GUARANTEE
[NW ____ _]
DATED AS OF [______________]
FROM
NORTHWEST AIRLINES CORPORATION
ONE [AIRBUS A319-113/114] [BOEING 757-351] [BOEING 747-451] AIRCRAFT
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TABLE OF CONTENTS TO GUARANTEE
PAGE
1. Guarantee..............................................................1
2. No Implied Third Party Beneficiaries...................................3
3. Waiver; No Set-off; Reinstatement; Subrogation.........................3
4. Amendments, Etc........................................................4
5. Payments...............................................................4
6. Jurisdictional Matters.................................................4
7. Integration; Counterparts; Successors and Assigns; Headings............4
8. Notices................................................................5
9. No Waivers.............................................................5
10. Survival...............................................................5
11. Severability...........................................................5
12. GOVERNING LAW..........................................................5
13. Enforcement Expenses...................................................6
14. Termination............................................................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 (including any subsequent Certificate Holder), the "Parties", and,
individually, a "Party").
WHEREAS, Northwest Airlines, Inc., a Minnesota corporation
(the "OWNER"), an indirect wholly-owned subsidiary of the Guarantor, wishes to
enter into a Trust Indenture and Security Agreement [NW ____ _], dated as of the
date hereof (as amended, modified or supplemented from time to time, the "TRUST
INDENTURE"), between the Owner and State Street Bank and Trust Company, not in
its individual capacity, except as expressly stated therein, but solely as
Indenture Trustee, initially relating to one (1) [Airbus A319-113/114] [Boeing
757-351] [Boeing 747-451] aircraft, together with [two (2)] [four (4)] [CFM
International, Inc. Model CFM56-5A4/5A5] [Xxxxx & Xxxxxxx Model PW2040] [Xxxxx &
Whitney Model PW4056] engines (such aircraft and engines, and any substitute
Airframe and Engines under the Trust Indenture, 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 Owner, 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 capitalized terms used herein that are not
defined herein are used herein as defined in Annex A to the Trust Indenture;
NOW, THEREFORE, in order to induce the Parties 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:
1. GUARANTEE.
(a) The Guarantor does hereby acknowledge that it is fully
aware of the terms and conditions of the Trust Indenture, the Participation
Agreement, the Secured Certificates 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 Owner of all payment obligations when due under the Trust
Indenture, the Participation Agreement, the Secured Certificates and the other
Operative Documents to which the Owner is a party (such obligations of the Owner
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 Owner 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 Owner 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
Owner, or the disaffirmance with respect to the Owner of the Trust Indenture or
any other Operative Document to which the Owner 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 the Indenture Trustee (such notice to be sent to the Owner (to the extent
the Indenture Trustee 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
Owner 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 Owner, or the
disaffirmance with respect to the Owner of the Trust Indenture or any other
Operative Document to which the Owner 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 the
Indenture Trustee (such notice to be sent to the Owner (to the extent the
Indenture Trustee 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 Owner's obligations
under the Trust Indenture or any other Operative Document to which the Owner is
a party, any amendment, waiver or other modification of the Trust Indenture 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 Owner may be
entitled over the Owner's obligations under the Trust Indenture and the other
Operative Documents to which the Owner 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
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Guarantor, the Owner'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, lease or other arrangement by which the Owner 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 Owner,
(d) any merger or consolidation of the Owner 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 Owner.
(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 Owner any unpaid
amounts due or otherwise to enforce performance by the Owner. 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 Owner for the Obligations, or (ii) make any effort
at collection of the Obligations from the Owner, or (iii) foreclose against or
seek to realize upon any security now or hereafter existing for the Obligations,
including the Collateral, 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 Owner 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 Indenture Trustee shall be
prevented by applicable law from exercising its remedies (or any of them) under
Article IV of the Trust Indenture, 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 Owner under the Trust Indenture 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 Owner 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 Owner, demand for payment from the Owner or
any other Person, notice of nonpayment or failure to perform on the part of the
Owner, diligence, presentment, protest, dishonor and, to the
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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 Owner 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
Owner or any other Person relating thereto; PROVIDED, HOWEVER, that the
Guarantor shall not be entitled to receive payment from the Owner in respect of
any claim against the Owner arising from a payment by the Guarantor in the event
of any insolvency, bankruptcy, liquidation, reorganization or other similar
proceedings relating to the Owner, or in the event of any proceedings for
voluntary liquidation, dissolution or other winding-up of the Owner, 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 Owner.
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 Trust Indenture, the Participation Agreement or any other Operative Document
in which such Obligation is contained.
6. 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.
7. INTEGRATION; COUNTERPARTS; SUCCESSORS AND ASSIGNS;
HEADINGS. This Guarantee (a) constitutes the entire agreement, and supersedes
all prior agreements and
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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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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
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GUARANTEE SHALL BE DEEMED MADE WHEN DELIVERED IN NEW YORK, NEW YORK.
13. 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.
14. 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.
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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:
STATE STREET BANK AND
TRUST COMPANY
in its individual capacity
and as Indenture Trustee
By:
---------------------------------
Name:
Title:
STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
not in its individual
capacity but solely as Pass Through Trustee
By:
---------------------------------
Name:
Title:
STATE STREET BANK AND
TRUST COMPANY
as Subordination Agent
By:
---------------------------------
Name:
Title:
SCHEDULE I
TO GUARANTEE
[NW ____ _]
PARTIES
State Street Bank and Trust Company, as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
State Street Bank and Trust Company, as Subordination Agent
