Exhibit 99(l)
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GUARANTEE
[NW ____ _]
Dated as of [______________]
from
NORTHWEST AIRLINES CORPORATION
One [Airbus A319-114] [Boeing 757-351] [Airbus A330-323] Aircraft
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TABLE OF CONTENTS TO GUARANTEE
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Page
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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 A319-114] [Boeing
757-351] [Airbus A330-323] aircraft, together with two (2) [CFM International,
Inc. Model CFM56-5A5] [▇▇▇▇▇ & ▇▇▇▇▇▇▇ Model PW2040] [▇▇▇▇▇ & Whitney Model
PW4168A] 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 Guarantor, the Owner's performance of or
compliance with any of its obligations under the
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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 fullest extent permitted
by law, all other demands or notices whatsoever, other than the request
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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, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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
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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
GUARANTEE SHALL BE DEEMED MADE WHEN DELIVERED IN NEW YORK, NEW YORK.
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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