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AMENDED AND RESTATED
GUARANTEE
[NW 1997 I]
Dated as of February 3, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
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TABLE OF CONTENTS TO GUARANTEE
Page
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1. Guarantee..............................................................2
2. No Implied Third Party Beneficiaries...................................4
3. Waiver; No Set-off; Reinstatement; Subrogation.........................4
4. Amendments, Etc........................................................5
5. Payments...............................................................5
6. Assignment of Guarantee................................................5
7. Jurisdictional Matters.................................................5
8. Integration; Counterparts; Successors and Assigns; Headings............6
9. Notices................................................................6
10. No Waivers.............................................................6
11. Survival...............................................................6
12. Severability...........................................................7
13. Governing Law..........................................................7
14. Enforcement Expenses...................................................7
15. Termination............................................................7
16. No Guarantee of Secured Certificates...................................7
GUARANTEE
[NW 1997 I]
This AMENDED AND RESTATED GUARANTEE [NW 1997 I], dated as of
February 3, 1998 (as amended, modified or supplemented from time to time, the or
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")
does hereby amend and restate in its entirety the Guarantee [NW 1997 I], dated
as of September 25, 1997 (the "Original Guarantee"), from the Guarantor to the
entities named therein.
WHEREAS, on September 25, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇., a
Minnesota corporation (the "Lessee"), an indirect wholly-owned subsidiary of the
Guarantor, the Guarantor, two of the Parties, and certain other entities entered
into a Participation Agreement [NW 1997 I], dated as of September 25, 1997 (the
"Original Participation Agreement");
WHEREAS, pursuant to the Assignment and Assumption Agreement, the
Initial Owner Participant has assigned the Beneficial Interest to the Owner
Participant;
WHEREAS, the Lessee, the Guarantor, the Owner Participant, the Owner
Trustee, the Indenture Trustee, the Pass Through Trustee and the Subordination
Agent have concurrently herewith amended and restated the Original Participation
Agreement in its entirety by entering into an Amended and Restated Participation
Agreement [NW 1997 I], dated as of the date hereof (as amended, modified or
supplemented from time to time, the "Participation Agreement"); and
WHEREAS, the Lessee wishes to enter into a Lease Agreement [NW 1997
I], dated as of the date hereof (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"), pursuant to the Participation Agreement; 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 has assigned 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
I], dated as of September 25, 1997, as amended by the First Amendment thereto
dated as of the date hereof, between the Lessor and the
Indenture Trustee (as so amended and 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 hereby amend and restate the
Original Guarantee in its entirety and 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 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 Lease or the Operative Documents to which the Lessee is a party in
any such
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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 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, 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
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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.
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
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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 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
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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.
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 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
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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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President Finance and
Treasurer
Accepted as of the above date:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
in its individual capacity
and as Owner Trustee
By: s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
STATE STREET BANK AND
TRUST COMPANY
in its individual capacity
and as Indenture Trustee
By: s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SCHEDULE I
TO GUARANTEE
[NW 1997 I]
PARTIES
First Security Bank, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
First American National Bank, Owner Participant