Exhibit 4(b)(3)
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XXXXXXXXX
[XX 0000 G]
Dated as of September 25, 1997
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A 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..........................................................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
GUARANTEE
[NW 1997 G]
This GUARANTEE [NW 1997 G], dated as of September 25, 1997 (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, has entered
into a Participation Agreement [NW 1997 G], 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, pursuant to the transactions contemplated by the Participation
Agreement, the Lessee intends on the Delivery Date to enter into a Lease
Agreement [NW 1997 G], dated as of the Delivery Date (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) British Aerospace Avro
146-RJ85A aircraft, together with four (4) Allied Signal LF507 type engines
(such aircraft and engines, and any substitute Airframe and Engines under the
Lease, being collectively referred to herein as the "Aircraft"); 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 1997 G],
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 Appendix A to the Participation Agreement;
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:
1. Guarantee.
(a) The Guarantor does hereby acknowledge that it is fully aware of the
terms and conditions of the Participation Agreement and the other Operative
Documents entered into by the Lessee on or prior to the Certificate Closing
Date 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 (as Lessee and not as the
Initial Owner Participant) of all payment obligations when due under the
Participation Agreement and the other Operative Documents entered into by the
Lessee (as Lessee and not as the Initial Owner Participant) on or prior to
the Certificate Closing Date (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 such Operative Documents, and the timely performance of all other
obligations of the Lessee (as Lessee and not as the Initial Owner
Participant) 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 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 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 any Operative Document to which the Lessee is a party, any
amendment, waiver or other modification of such Operative Document (except
that any such amendment or other modification shall be given effect in
determining the
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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 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 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 (c) 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, 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 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.
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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 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
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 for indemnities provided in Section 7 of the
Participation 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
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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. 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
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.
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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: s/Xxxx X. Xxxxxx
--------------------------------
Name:
Title:
Accepted as of the above date:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
in its individual capacity
and as Owner Trustee
By: s/Xxxx X. Xxxxxx
-------------------------------
Name:
Title:
STATE STREET BANK AND
TRUST COMPANY
in its individual capacity
and as Indenture Trustee
By: s/Xxxxxx X. Xxxxx
-------------------------------
Name:
Title:
SCHEDULE I
TO GUARANTEE
[NW 1997 G]
PARTIES
First Security Bank, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
