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GUARANTEE
[NW 1999 _]
Dated as of [______________]
from
NORTHWEST AIRLINES CORPORATION
One Boeing 747-451 Aircraft
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TABLE OF CONTENTS TO GUARANTEE
Page
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1. Guarantee................................................................1
2. No Implied Third Party Beneficiaries.....................................4
3. Waiver; No Set-off; Reinstatement; Subrogation...........................4
4. Amendments, Etc..........................................................4
5. Payments.................................................................4
6. Jurisdictional Matters...................................................4
7. Integration; Counterparts; Successors and Assigns; Headings..............5
8. Notices..................................................................5
9. No Waivers...............................................................5
10. Survival.................................................................6
11. Severability.............................................................6
12. Governing Law............................................................6
13. Enforcement Expenses.....................................................6
14. Termination..............................................................6
GUARANTEE
[NW 1999 _]
This GUARANTEE [NW 1999 _], 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 1999 _], 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) Boeing 747-451 aircraft,
together with four (4) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 1999 _], 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
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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 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.
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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 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
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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, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 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.
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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
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
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:
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SCHEDULE I
TO GUARANTEE
[NW 1999 _]
PARTIES
State Street Bank and Trust Company, as Indenture Trustee
State Street Bank and Trust Company, as Pass Through Trustee
State Street Bank and Trust Company, as Subordination Agent