Exhibit 99(g)
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GUARANTEE
[NW ____ __]
Dated as of [_____________]
from
NORTHWEST AIRLINES CORPORATION
One [Airbus A330-323] [Boeing 757-351] Aircraft
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TABLE OF CONTENTS TO GUARANTEE
Page
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1. Guarantee..............................................................1
2. No Implied Third Party Beneficiaries...................................3
3. Waiver; No Set-off; Reinstatement; Subrogation.........................4
4. Amendments, Etc........................................................4
5. Payments...............................................................4
6. Assignment of Guarantee................................................4
7. Jurisdictional Matters.................................................5
8. Integration; Counterparts; Successors and Assigns; Headings............5
9. Notices................................................................5
10. No Waivers.............................................................5
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 Xxxxx Fargo Bank Northwest, 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 A330-323] [Boeing 757-351] aircraft, together with two (2) [Xxxxx &
Whitney Model PW4168A] [Xxxxx & Xxxxxxx Model PW2040] 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:
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 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,
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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,
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.
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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
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
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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.
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
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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:
XXXXX FARGO BANK NORTHWEST,
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 ____ __]
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PARTIES
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Xxxxx Fargo Bank Northwest, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
[Owner Participant]
