<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): January 19, 1999
NORTHWEST AIRLINES CORPORATION
(formerly Newbridge Parent Corporation)
(Exact Name of Registrant as Specified in Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation)
0-23642
(Commission File Number)
41-1905580
(I.R.S. Employer Identification No.)
2700 LONE OAK PARKWAY, EAGAN, MINNESOTA 55121
(Address of principal executive offices)(Zip Code)
(612) 726-2111
(Registrant's Telephone Number, Including Area Code)
<PAGE>
2
ITEM 5. OTHER EVENTS
Northwest Airlines Corporation today reported a net loss of $181 million
for the three months ended December 31, 1998. Results for the quarter were
severely affected by the recovery period following a 15-day strike in the
third quarter. The Company estimates that the fourth quarter cost of the
recovery was approximately $300 million on a pre-tax basis.
Included in the fourth quarter results is a $66 million one-time
pre-tax charge related to the retirement of seven Boeing 747 aircraft and
pre-tax provisions of $36 million for estimated retroactive payments related to
the Company's amendable collective bargaining agreements. Exclusive of these
one-time charges, the fourth quarter loss was $117 million or $1.49 per diluted
common share; inclusive of those one-time charges, loss per diluted common share
for the quarter was $2.31.
For the full year, the Company reported a net loss of $286 million.
Excluding the full year effects of the one-time charge for the retirement of
seven Boeing 747 aircraft and a pre-tax one-time charge of $151 million for
out-of-period charges related to both collective bargaining agreements that
were ratified in 1998 and estimated provisions for the Company's remaining
amendable collective bargaining agreements, the net loss was $149 million or
$1.81 per diluted common share for the full year 1998. Inclusive of those
one-time charges, loss per diluted common share for the year was $3.48.
The Company believes that year-over-year comparisons are not useful due
to the wide-ranging impact of the strike and related events on earnings;
nevertheless, comparisons are provided for purposes of consistency.
Inclusive of one-time charges detailed above, the Company reported a
fourth quarter operating loss of $192 million. Exclusive of these one-time
charges, the Company recorded a fourth quarter operating loss of $90 million.
Revenues for the fourth quarter decreased to $2.212 billion, a decrease of 11.2
percent versus revenues of $2.491 billion in the fourth
<PAGE>
3
quarter of 1997. Quarterly operating expenses were $2.404 billion, an increase
of 6.2 percent from expenses of $2.264 billion in the fourth quarter of 1997.
Passenger load factor (PLF) was 69.9 percent for the fourth quarter of
1998, down from 72.2 percent in the fourth quarter of 1997. The Company
decreased overall flying in the fourth quarter by 1.3 percent, from 23.902
billion available seat miles (ASM) in 1997 to 23.580 billion ASM in 1998.
Quarterly revenue passenger miles (RPM) decreased 4.5 percent, from 17.269
billion RPM in 1997 to 16.488 billion RPM in 1998. Cargo ton miles (CTM)
decreased 10.3 percent year-over-year, from 642.1 million CTM in the fourth
quarter of 1997 to 575.8 million CTM in the fourth quarter of 1998.
Year-over-year yield for the fourth quarter decreased 9.2 percent, from
12.03c per passenger mile in 1997 to 10.92c in 1998. Revenues per available seat
mile (RASM) declined 10.1 percent year-over-year, from 9.55 cents to 8.59 cents,
while costs per available seat mile (CASM) rose 4.5 percent to 9.11 cents versus
8.72 cents a year earlier.
Inclusive of one-time charges detailed above, the Company reported a
full year operating loss of $191 million. Exclusive of these one-time charges,
the Company recorded a full year operating profit of $26 million. Revenues for
the full year 1998 decreased 11.5 percent from $10.226 billion in 1997 to $9.045
billion in 1998. Operating expenses for 1998 increased 1.8 percent to $9.236
billion from $9.069 billion in 1997.
Passenger load factor for 1998 was 73.1 percent, down from 74.3 percent
in 1997. The Company decreased overall flying in 1998 by 5.8 percent, from
96.964 billion ASM in 1997 to 91.311 billion ASM in 1998. Revenue passenger
miles flown decreased 7.3 percent, from 72.031 billion RPM in 1997 to 66.738
billion RPM in 1998. Cargo ton miles decreased 14.4 percent year-over-year from
2.283 billion CTM in 1997 to 1.954 billion in 1998.
Yield for the year decreased 7.0 percent, from 12.11 cents per
passenger mile in 1997 to 11.26 cents in 1998. Revenues per available seat mile
decreased 6.6 percent year-over-year, from 9.76 cents to 9.12 cents while costs
per available seat mile rose 6.7 percent to 9.21 cents versus 8.63 cents a year
earlier.
<PAGE>
4
NORTHWEST AIRLINES CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED, IN MILLIONS EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
DECEMBER 31
---------------------------
1998 1997 PERCENT
---------- ---------- ----------
<S> <C> <C> <C>
OPERATING REVENUES
Passenger $ 1,823.8 $ 2,104.1 (13.3)
Cargo 186.9 222.3 (15.9)
Other 201.5 164.9 22.2
2,212.2 2,491.3 (11.2)
OPERATING EXPENSES
Salaries, wages and benefits 832.0 765.1 8.7
Aircraft fuel and taxes 267.5 338.1 (20.9)
Commissions 164.7 197.7 (16.7)
Aircraft maintenance materials and repairs 214.8 153.6 39.8
Depreciation and amortization 113.5 106.6 6.5
Aircraft rentals 85.4 89.6 (4.7)
Other rentals and landing fees 121.5 115.4 11.0
Other (a) 605.0 497.9 21.5
2,404.4 2,264.0 6.2
OPERATING INCOME (LOSS) (192.2) 227.3 (184.6)
OTHER INCOME (EXPENSE)
Interest expense, net (94.9) (58.9) (61.1)
Interest of preferred security holder (6.3) (6.0) (5.0)
Investment income 16.0 21.3 (24.9)
Foreign currency gain (loss) (21.2) 5.7
Other 24.8 (4.7)
(81.6) (42.6) (91.5)
INCOME (LOSS) BEFORE INCOME TAXES AND EXTRAORDINARY ITEM (273.8) 184.7 (248.2)
Income tax expense (benefit) (92.5) 70.0
INCOME (LOSS) BEFORE EXTRAORDINARY ITEM (181.3) 114.7 (258.1)
Loss on extinguishment of debt -- (9.3)
NET INCOME (LOSS) (181.3) 105.4 (272.0)
Preferred stock requirements (0.2) (0.3)
NET INCOME (LOSS) APPLICABLE TO COMMON STOCKHOLDERS $ (181.5) $ 105.1
</TABLE>
<PAGE>
5
<TABLE>
<CAPTION>
THREE MONTHS ENDED
DECEMBER 31
----------------------------------------------
1998 1997 PERCENT
---------- ---------- ----------
<S> <C> <C> <C>
Earnings (loss) per common share:
Basic
Before effects of extraordinary item $ (2.31) $ 1.18
Loss on extinguishment of debt -- (.09)
Earnings (loss) per common share $ (2.31) $ 1.09
Diluted
Before effects of extraordinary item $ (2.31) $ 1.06
Loss on extinguishment of debt -- (.09)
Earnings (loss) per common share $ (2.31) $ .97
Average shares used in computation:
Basic 78.5 96.7
Diluted 78.5 108.3
</TABLE>
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED, IN MILLIONS EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED
DECEMBER 31
---------------------------
1998 1997 PERCENT
---------- ---------- ----------
<S> <C> <C> <C>
OPERATING REVENUES
Passenger $ 7,606.5 $ 8,822.1 (13.8)
Cargo 633.5 789.4 (19.7)
Other 804.8 614.3 31.0
9,044.8 10,225.8 (11.5)
OPERATING EXPENSES
Salaries, wages and benefits 3,260.6 3,023.9 7.8
Aircraft fuel and taxes 1,097.1 1,393.8 (21.3)
Commissions 691.9 855.2 (19.1)
Aircraft maintenance materials and repairs 761.0 620.4 22.7
Depreciation and amortization 427.0 396.0 7.8
Aircraft rentals 345.1 358.9 (3.8)
Other rentals and landing fees 450.4 456.7 (2.8)
Other (a) 2,203.1 1,963.7 12.2
9,236.2 9,068.6 1.8
OPERATING INCOME (LOSS) (191.4) 1,157.2 (116.5)
OTHER INCOME (EXPENSE)
Interest expense, net (312.1) (234.1) (33.3)
Interest of preferred security holder (22.5) (24.3) 7.4
Investment income 79.3 68.0 16.6
Foreign currency gain (loss) (21.5) 1.8
Other 38.2 16.0
</TABLE>
<PAGE>
6
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED
DECEMBER 31
---------------------------
1998 1997 PERCENT
---------- ---------- ----------
<S> <C> <C> <C>
(238.6) (172.6) (38.2)
INCOME (LOSS) BEFORE INCOME TAXES AND EXTRAORDINARY ITEM (430.0) 984.6 (143.7)
Income tax expense (benefit) (144.5) 378.8
INCOME (LOSS) BEFORE EXTRAORDINARY ITEM (285.5) 605.8 (147.1)
Loss on extinguishment of debt -- (9.3)
NET INCOME (LOSS) (285.5) 596.5 (147.9)
Preferred stock requirements (0.8) (13.5)
NET INCOME (LOSS) APPLICABLE TO COMMON STOCKHOLDERS $ (286.3) $ 583.0
Earnings (loss) per common share:
Basic
Before effects of extraordinary item $ (3.48) $ 5.89
Loss on extinguishment of debt -- (.10)
Earnings (loss) per common share $ (3.48) $ 5.79
Diluted
Before effects of extraordinary item $ (3.48) $ 5.29
Loss on extinguishment of debt -- (.08)
Earnings (loss) per common share $ (3.48) $ 5.21)
Average shares used in computation:
Basic 82.3 100.6
Diluted 82.3 112.2
</TABLE>
<PAGE>
7
NORTHWEST AIRLINES CORPORATION
NOTES TO CONDENSED CONSOLIDATED STATEMENTS
(a) The Company recorded a fleet disposition charge of $65.9 million ($41.6
million after tax or $.53 per share) related to its seven oldest
Boeing 747 aircraft in the fourth quarter of 1998.
(b) On May 1, 1998 the Company purchased 18.2 million shares of common
stock from KLM Royal Dutch Airlines. The purchase price of $780.4
million was paid with a combination of $336.7 million of cash and
$443.7 million of 7.88% senior unsecured notes. Effective on the date
of the repurchase, these shares are excluded from earnings per share
calculations.
(c) On November 20, 1998, the Company purchased 8.7 million shares of Class
A Common Stock of Continental Airlines, Inc. for $465 million.
Consideration was $399.5 million in cash and 2.6 million shares of
newly issued common stock. The investment represents 14.5% of
Continental's common stock and, together with additional Continental
shares for which the Company holds a limited voting proxy, 50.6%
of its fully diluted voting power on the acquisition date.
<PAGE>
8
OPERATING STATISTICS (1)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
DECEMBER 31
------------------------- PERCENT
1998 1997 CHANGE
-------- -------- -------
<S> <C> <C> <C>
Scheduled Service:
Available seat miles (ASM) (millions) 23,579.8 23,901.6 (1.3)
Revenue passenger miles (millions) 16,488.1 17,268.9 (4.5)
Passenger load factor (percent) 69.9 72.2 (2.3) pts.
Revenue passengers (thousands) 12,961 13,383 (3.2)
Revenue yield per passenger mile (cents) 10.92 12.03 (9.2)
Passenger revenue per scheduled ASM (cents) 7.64 8.69 (12.1)
Operating revenue per total ASM (cents) (2) 8.59 9.55 (10.1)
Operating expense per total ASM (cents) (2) 9.11 8.72 4.5
Cargo ton miles (millions) 575.8 642.1 (10.3)
Cargo revenue per ton mile (cents) 32.43 34.57 (6.2)
Fuel gallons consumed (millions) 488.1 499.3 (2.2)
Average fuel cost per gallon (cents) 50.12 62.70 (20.1)
</TABLE>
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED
DECEMBER 31
------------------------- PERCENT
1998 1997 CHANGE
-------- -------- -------
<S> <C> <C> <C>
Scheduled Service:
Available seat miles (ASM) (millions) 91,310.7 96.963.6 (5.8)
Revenue passenger miles (millions) 66,738.3 72,031.3 (7.3)
Passenger load factor (percent) 73.1 74.3 (1.2) pts.
Revenue passengers (thousands) 50,489 54,650 (7.6)
Revenue yield per passenger mile (cents) 11.26 12.11 (7.0)
Passenger revenue per scheduled ASM (cents) 8.23 9.00 (8.6)
Operating revenue per total ASM (cents) (2) 9.12 9.76 (6.6)
Operating expense per total ASM (cents) (2) 9.21 8.63 6.7
Cargo ton miles (millions) 1,954.4 2,282.8 (14.4)
Cargo revenue per ton mile (cents) 32.39 34.54 (6.2)
Fuel gallons consumed (millions) 1,877.1 1,996.3 (6.0)
Average fuel cost per gallon (cents) 53.60 64.86 (17.4)
Number of operating aircraft at end of period 409 405 1.0
Full-time equivalent employees at end of period 50,565 48,984 3.2
</TABLE>
(1) All statistics exclude Express Airlines I, Inc.
(2) Excludes the estimated revenues and expenses associated with the
operation of Northwest's fleet of eight 747 freighter aircraft, MLT
Inc. and gain/loss on disposition of assets.
<PAGE>
9
SELECTED BALANCE SHEET DATA
<TABLE>
<CAPTION>
DECEMBER 31, 1998 DECEMBER 31, 1997
----------------- -----------------
<S> <C> <C>
Crash, cash equivalents and unrestricted $ 480.0 $ 1,039.9
short-term investments
Total assets 10,280.8 9,336.2
Long-term debt, including current maturities (b) 4,000.7 2,069.3
Long-term obligations under capital leases, including 654.9 705.3
current obligations
Redeemable stock
Preferred 260.7 306.2
Common (b) -- 848.5
Common stockholders' equity (deficit) (476.7) (311.0)
</TABLE>
Item 7. EXHIBITS
The following exhibits are filed as part of this Report.
4(a)(1) Guarantee [NW 1989B], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(2) Guarantee [NW 1990A], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(3) Guarantee [NW 1995A], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(4) Guarantee [NW 1995B], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(5) Guarantee [NW 1996A], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(6) Guarantee [NW 1996B], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(7) Guarantee [NW 1996C], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(8) Guarantee [NW 1996D], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(9) Guarantee [NW 1996E], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(10) Guarantee [NW 1996F], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(11) Guarantee [NW 1996G], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(12) Guarantee [NW 1997A], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(13) Guarantee [NW 1997B], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(14) Guarantee [NW 1997C], dated as of November 20, 1998, from Northwest
Airlines Corporation.
<PAGE>
10
4(a)(15) Guarantee [NW 1997D], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(16) Guarantee [NW 1997E], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(17) Guarantee [NW 1997F], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(18) Guarantee [NW 1997G], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(19) Guarantee [NW 1997H], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(20) Guarantee [NW 1997I], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(21) Guarantee [NW 1997J], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(22) Guarantee [NW 1997K], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(a)(23) Guarantee [NW 1997L], dated as of November 20, 1998, from Northwest
Airlines Corporation.
4(b)(1) Supplemental Indenture, dated as of November 20, 1998, among
Northwest Airlines Corporation, as Guarantor, Northwest Airlines
Holdings Corporation, as Original Guarantor, Northwest Airlines,
Inc., as Lessee, Wilmington Trust Company, as Owner Trustee, and
State Street Bank and Trust Company of Connecticut, National
Association, as Indenture Trustee.
4(b)(2) Supplemental Indenture, dated as of November 20, 1998, among
Northwest Airlines Corporation, as Guarantor, Northwest Airlines
Holdings Corporation, as Original Guarantor, Northwest Airlines,
Inc., as Lessee, Wilmington Trust Company, as Owner Trustee, and
State Street Bank and Trust Company of Connecticut, National
Association, as Indenture Trustee.
4(b)(3) Supplemental Indenture, dated as of November 20, 1998, among
Northwest Airlines Corporation, as Guarantor, Northwest Airlines
Holdings Corporation, as Original Guarantor, Northwest Airlines,
Inc., as Lessee, Wilmington Trust Company, as Owner Trustee, and
State Street Bank and Trust Company, as Indenture Trustee.
<PAGE>
11
4(b)(4) Supplemental Indenture, dated as of November 20, 1998, among
Northwest Airlines Corporation, as Guarantor, Northwest Airlines
Holdings Corporation, as Original Guarantor, Northwest Airlines,
Inc., as Lessee, Wilmington Trust Company, as Owner Trustee, and
State Street Bank and Trust Company, as Indenture Trustee.
4(b)(5) Supplemental Indenture, dated as of November 20, 1998, among
Northwest Airlines Corporation, as Guarantor, Northwest Airlines
Holdings Corporation, as Original Guarantor, Northwest Airlines,
Inc., as Lessee, Wilmington Trust Company, as Owner Trustee, and
State Street Bank and Trust Company, as Indenture Trustee.
4(b)(6) Supplemental Agreement, dated as of November 20, 1998, among
Northwest Airlines Corporation, as New Guarantor, Northwest Airlines
Holdings Corporation, as Original Guarantor, Northwest Airlines,
Inc. and State Street Bank and Trust Company, as Trustee.
<PAGE>
12
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
NORTHWEST AIRLINES CORPORATION
By: /s/ DOUGLAS M. STEENLAND
---------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and
Secretary
Dated: January 22, 1999
<PAGE>
Exhibit 4(a)(1)
================================================================================
GUARANTEE
[NW 1989 B]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 747-451 Aircraft
================================================================================
<PAGE>
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 ...................................................... 5
5. Payments ............................................................. 5
6. Assignment of Guarantee .............................................. 5
7. Representations and Warranties ....................................... 6
8. Jurisdictional Matters ............................................... 6
9. Integration; Counterparts; Successors and Assign; Headings ........... 7
10. Notices .............................................................. 7
11. No Waivers ........................................................... 7
12. Survival ............................................................. 7
13. Severability ......................................................... 8
14. GOVERNING LAW ........................................................ 8
15. Enforcement Expenses ................................................. 8
16. Termination .......................................................... 8
17. No Guarantee of Secured Certificates ................................. 8
<PAGE>
GUARANTEE
[NW 1989 B]
This GUARANTEE [NW 1989 B], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1989 B], dated as of March 15, 1989, between the
Lessee, as lessee, and The First National Bank of Boston, not in its individual
capacity but solely as Owner Trustee (as defined therein), except as expressly
provided therein (the "Original Owner Trustee"), as lessor, and a Lease
Supplement No. 1 [NW 1989 B], dated March 16, 1989 (such Lease Agreement, as so
supplemented, the "Original Lease"), relating to one (1) Boeing 747-451
aircraft, together with four (4) Pratt & Whitney Model PW4056 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 1989 B], dated as of March 15, 1989 (the "Original
Participation Agreement"), among the Lessee, ICA Financial Corporation, as owner
participant (the "Original Owner Participant"), and certain other parties; and
WHEREAS, pursuant to an Assignment and Assumption Agreement dated as
of December 19, 1991 by and among the Original Owner Participant, BATCL-1991-II,
Inc., as owner participant (the "Owner Participant"), and Bell Atlantic TriCon
Leasing Corporation, a Delaware corporation, as parent of the Owner Participant
(the "Assignment Agreement"), the Original Owner Participant transferred to the
Owner Participant all of its right, title and interest in the Trust Estate, the
Aircraft and the Operative Documents, including without limitation the Original
Lease; and
WHEREAS, pursuant to an Instrument of Transfer, Removal,
Appointment, Assumption and Acceptance dated May 16, 1996 among the Owner
Participant, the Original Owner Trustee and First Security Bank of Utah,
National Association (the "Owner Trustee"), the Owner Trustee succeeded to all
of the estates, properties, rights, powers, duties and trusts of the Original
Owner Trustee as trustee under the Original Trust Agreement and the other
Operative Documents to which the Original Owner Trustee was a party; and
WHEREAS, the Guarantor, the Lessee, the Owner Trustee, the Owner
Participant, State Street Bank and Trust Company, as indenture trustee (the
"Indenture Trustee"), and certain other parties have entered into a Refunding
Agreement [NW 1989 B], dated as of June 3, 1996 (the "Refunding Agreement"),
providing for a refinancing as contemplated by Section 17 of the Original
Participation Agreement; and execute and deliver this Guarantee; and
<PAGE>
WHEREAS, pursuant to the Refunding Agreement, (a) the Original
Participation Agreement was amended (as so amended, the "Participation
Agreement"), (b) the Original Lease was amended and restated on June 3, 1996 (as
so amended and restated, the "Lease"), (c) the Owner Trustee and the Indenture
Trustee entered into the Trust Indenture and Security Agreement [NW 1989 B],
together with a Trust Agreement and Indenture Supplement covering the Aircraft
(as so supplemented, the "Trust Indenture"), and new secured certificates in
four series substantially in the form set forth in Section 2.01 of the Trust
Indenture (the "Secured Certificates") were issued, and (d) the Owner Trustee as
lessor under the lease (the "Lessor") assigned by way of collateral security
certain of its right, title and interest in and to this Guarantee to the
Indenture Trustee pursuant the Trust Indenture, as security for the obligations
of the Lessor referred to therein; and
WHEREAS, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
NOW, THEREFORE, in consideration for the foregoing 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 hereinafter 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
solar
2
<PAGE>
proceedings affecting the status, 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 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, 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 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
3
<PAGE>
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 (as such
term is defined in the Trust Indenture), 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 many 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
4
<PAGE>
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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
(b) 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 (as such term is defined in the Trust Indenture).
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.
5
<PAGE>
7. Representations and Warranties. The Guarantor hereby represents
and warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in good
standing pursuant to the laws of the State of Delaware. It has all
requisite corporate power and authority to own and operate its properties,
to carry on its business as presently conducted and to enter into and
perform its obligations under this Guarantee.
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the
taking of any other action in respect of, any Federal, state, municipal or
other governmental department, bureau, agency or instrumentality, and no
filing, recording, publication or registration in any public office or any
other place, is now, or under existing law in the future will be, required
or necessary on its behalf to authorize the execution, delivery and
performance (other than as contemplated by the Operative Documents in the
case of the performance of the Non-Financial Obligations) by it of this
Guarantee, or for the legality, validity, binding effect or enforceability
hereof.
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under, or result in any creation or
imposition of any Lien upon any of its property or assets under, any
applicable laws or any indenture, mortgage, deed of trust or other
instrument or agreement to which it is a party or by which it may be bound
or to which any of its property or assets may be subject, or its Articles
of Incorporation or by-laws.
(d) The execution, delivery and performance by it of this Guarantee
have been duly authorized by all necessary corporate action. This
Guarantee has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable in accordance with its
terms except as enforceability thereof may he limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
8. 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 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, Wickershatn & Taft, 100 Maiden Lane, New York, New York 10038 4892,
Attention: Managing Attorney, or such office of the Guarantor in New York City
as from time to time may he designated by the Guarantor in writing to the
Parties.
6
<PAGE>
9. Integration; Counterparts; Successors and Assign; 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.
10. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance
and Treasurer
Telecopy No.: (612) 726-0665
If to a Party:
to the address or telecopy number set forth in or
pursuant to the Refunding Agreement.
All requests, notices or other communications shall be given in the manner, and
shall be effective at the time and under the terms, set forth in Section 13(b)
of the Participation Agreement.
11. 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.
12. 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.
7
<PAGE>
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
8
<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1989 B]
PARTIES
First Security Bank of Utah, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
BATCL-1991-II,Inc., as Owner Participant
<PAGE>
Exhibit 4(a)(2)
================================================================================
GUARANTEE
[NW 1990 A]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 747-451 Aircraft
================================================================================
<PAGE>
TABLE OF CONTENTS TO GUARANTEE
Page
----
1. Guarantee ............................................................ 3
2. No Implied Third Party Beneficiaries ................................. 5
3. Waiver; No Set-off; Reinstatement; Subrogation ....................... 5
4. Amendments, Etc ...................................................... 6
5. Payments ............................................................. 6
6. Assignment of Guarantee .............................................. 6
7. Representations and Warranties ....................................... 6
8. Jurisdictional Matters ............................................... 7
9. Integration; Counterparts; Successors and Assigns; Heading ........... 8
10. Notices .............................................................. 8
11. No Waivers ........................................................... 8
12. Survival ............................................................. 9
13. Severability ......................................................... 9
14. GOVERNING LAW ........................................................ 9
15. Enforcement Expenses ................................................. 9
16. Termination .......................................................... 9
17. No Guarantee of Secured Certificates ................................. 9
<PAGE>
GUARANTEE
[NW 1990 A]
This GUARANTEE [NW 1990 A], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1990 A], dated as of August 23, 1990, between the
Lessee, as lessee, and The First National Bank of Boston, not in its individual
capacity but solely as Owner Trustee (as defined therein), except as expressly
provided therein (the Original Owner Trustees), as lessor, and a Lease
Supplement No. 1 [NW 1990 A], dated August 23, 1990 (such Lease Agreement, as so
supplemented, the "Original Leases"), relating to one (1) Boeing 747-451
aircraft, together with four (4) Pratt & Whitney Model PW4056 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 1990 A], dated as of August 23, 1990 (the "Original
Participation Agreement"), among the Lessee, AT&T Credit Holdings, Inc.
(formerly known as AT&T Credit Corporation), as Owner Participant (the "Owner
Participant"), and certain other parties; and
WHEREAS, concurrently with the execution and delivery of the
Original Participation Agreement, the Original Owner Trustee and The Connecticut
Bank and Trust Company, National Association, as indenture trustee (the
"Original Indenture Trustee"), entered into the Trust Indenture and Security
Agreement [NW 1990 A], dated as of August 23, 1990, as supplemented by the Trust
Agreement and Indenture Supplement [NW 1990 A], dated August 23, 1990
(collectively, the "Original Indenture"), pursuant to which the Original Owner
Trustee issued secured certificates substantially in the form set forth in
Article II thereof (the "Original Secured Certificate"); and
WHEREAS, pursuant to an Instrument of Assignment and Acceptance of
Trust Indenture and Security Agreement [NW 1990 A] dated as of July 14, 1991,
State Street Bank and Trust Company (the "Indenture Trustee") succeeded to the
Original Indenture Trustee, as indenture trustee under the Original Indenture;
and
WHEREAS, pursuant to an Instrument of Transfer, Removal,
Appointment, Assumption and Acceptance among the Owner Participant, the Original
Owner Trustee and First Security Bank of Utah, National Association (the "Owner
Trustee"), dated May 28, 1996, the Owner Trustee succeeded to all of the
estates, properties, rights, powers, duties and
<PAGE>
trusts of the Original Owner Trustee as trustee under the Original Trust
Agreement and the other Operative Documents to which the Original Owner Trustee
was a party; and
WHEREAS, the Guarantor, the Lessee, the Owner Trustee, the Owner
Participant, the Indenture Trustee and certain other parties have entered into a
Refunding Agreement [NW 1990 A], dated as of June 3, 1996 (the "Refunding
Agreement"), providing for a refinancing as contemplated by Section 17 of the
Original Participation Agreement; and
WHEREAS, it was a condition precedent to the obligations of the
parties thereto to consummate the transactions contemplated by the Refunding
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
execute and deliver this Guarantee; and
WHEREAS, pursuant to the Refunding Agreement, (a) the Original
Participation Agreement was amended (as so amended, the "Participation
Agreement"), (b) the Original Lease was amended on June 3, 1996 (as so amended,
the "Lease"), (b) the Original Secured Certificates were redeemed, the Original
Indenture was amended and restated (as so amended and restated, the "Trust
Indenture"), and new secured certificates in four series substantially in the
form set forth in Section 2.01 of the Trust Indenture (the "Secured
Certificates") were issued, and (c) the Owner Trustee as lessor under the lease
(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
the Trust Indenture, as security for the obligations of the Lessor referred to
therein; and
WHEREAS, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Guarantee.
-2-
<PAGE>
(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 hereinafter 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 or, 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 suck 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 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
-3-
<PAGE>
Lease or such other Operative Document (except that any such amendment or other
modification in writing 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 it 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
entitles 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 it' obligations
under the Operative Documents (except that such extension or waiver in writing
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 (as such
term is defined in the Trust Indenture), 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.
-4-
<PAGE>
(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 and
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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
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<PAGE>
(b) 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 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
Denture 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, otherwise not constituting part of the Trust Indenture Estate
(as such term is defined the Trust Indenture).
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. Representations and Warranties. The Guarantor hereby represents
and warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in good
standing pursuant to the laws of the State of Delaware. It has all
requisite corporate power and authority to own and operate its properties,
to carry on its business as presently conducted and to enter into and
perform its obligations under this Guarantee.
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<PAGE>
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the
taking of any other action in respect of, any Federal, state, municipal or
other governmental department, bureau, agency or instrumentality, and no
filing, recording, publication or registration in any public office or any
other place, is now, or under existing law in the future will be, required
or necessary on its behalf to authorize the execution, delivery and
performance (other than as contemplated by the Operative Documents in the
case of the performance of the Non-Financial Obligations) by it of this
Guarantee, or for the legality, validity, binding effect or enforceability
hereof.
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under, of result in any creation or
imposition of any Lien upon any of its property or assets under, any
applicable laws or any indenture, mortgage, deed of trust or other
instrument or agreement to which it is a party or by which it may be bound
or to which any of fits property or assets may be subject, or its Articles
of Incorporation or by-laws.
(d) The execution, delivery and performance by it of this Guarantee
have been duly authorized by all necessary corporate action. This
Guarantee has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at
law).
8. 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, Wickershasn & Taft, 100 Maiden Lane, New York, New York
10038-4892, 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.
9. Integration; Counterparts; Successors and Assigns; Heading. 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
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<PAGE>
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.
10. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (612) 726-0665
If to a Party:
to the address or telecopy number set forth in or
pursuant to the Refunding 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.
11. 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.
12. 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.
13. 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
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<PAGE>
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.
14. 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.
15. 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.
16. 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.
17. 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 and inference that the Lessee or the
Guarantor has so guaranteed such payment.
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<PAGE>
IN WITNESS WHEREOF, the parties hereunto have caused this Guarantee
to be duly executed as of the date first hereinabove set forth.
NORTHWEST AIRLINES CORPORATION
By: /s/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
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<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1990 A]
[PARTIES]
First Security Bank of Utah, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
AT&T Credit Holdings, Inc., as Owner Participant
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<PAGE>
Exhibit 4(a)(3)
================================================================================
GUARANTEE
[NW 1995 A]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 757-251 Aircraft
================================================================================
<PAGE>
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 ............................................................. 5
6. Assignment of Guarantee .............................................. 5
7. Representations and Warranties ....................................... 5
8. Jurisdictional Matters ............................................... 6
9. Integration; Counterparts; Successors and Assigns; Headings .......... 6
10. Notices .............................................................. 7
11. No Waivers ........................................................... 7
13. Severability ......................................................... 7
14. GOVERNING LAW ........................................................ 7
15. Enforcement Expenses ................................................. 8
16. Termination .......................................................... 8
17. No Guarantee of Secured Certificates ................................. 8
<PAGE>
GUARANTEE
[NW 1995 A]
This GUARANTEE [NW 1995 A], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1995 A], dated as of November 15, 1995 (as amended,
modified or supplemented from time to time, the "Lease"), between the Lessee and
First Security Bank of Utah, 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) Boeing 757251
aircraft, together with two (2) Pratt & Whitney Model PW2037 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 1995 A], dated November 15, 1995 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among the Lessee and the Parties; and
WHEREAS, it was a condition precedent to the obligations of the Parties to
consummate the transactions contemplated by the Participation Agreement that
Northwest Airlines Holding Corporation (formerly known as Northwest Airlines
Corporation), a Delaware corporation ("Old Northwest"), 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
(as defined in the Lease), pursuant to a Trust Indenture and Security Agreement
[NW 1995 A], dated as of November 15, 1995, 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, as of the date of this Guarantee, Newbridge Merger Corporation, a
wholly-owned subsidiary of the Guarantor, will merge with and into Old
Northwest, with Old Northwest as surviving corporation, in accordance with
Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined herein are
used herein as defined in the Lease;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
<PAGE>
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 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
in writing 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
said Obligations)
2
<PAGE>
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 in writing 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 (as such
term is defined in the Trust Indenture), 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
3
<PAGE>
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 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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
(b) 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.
4
<PAGE>
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 (as such term is defined in the Trust Indenture).
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. Representations and Warranties. The Guarantor hereby represents
and warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in good
standing pursuant to the laws of the State of Delaware. It has all
requisite corporate power and authority to own and operate its properties,
to carry on its business as presently conducted and to enter into and
perform its obligations under this Guarantee.
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the
taking of any other action in respect of, any Federal, state, municipal or
other governmental department, bureau, agency or instrumentality, and no
filing, recording, publication or registration in any public office or any
other place, is now, or under existing law in the future will be, required
or necessary on its behalf to authorize the execution, delivery and
performance (other than as contemplated by the Operative Documents in the
case of the performance of the Non-Financial Obligations) by it of this
Guarantee, or for the legality, validity, binding effect or enforceability
hereof.
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under, or result in any creation or
imposition of any Lien upon any of its property or assets under, any
applicable laws or any indenture, mortgage, deed of trust or other
instrument or agreement to which it is a party or
5
<PAGE>
by which it may be bound or to which any of its property or assets may be
subject, or its Articles of Incorporation or by-laws.
(d) The execution, delivery and performance by it of this Guarantee
have been duly authorized by all necessary corporate action. This
Guarantee has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable in accordance with its
terms except as enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
8. 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, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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.
9. 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, 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.
6
<PAGE>
10. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (612) 726-0665
If to a Party:
to the address or telecopy number set forth in or
pursuant to the Refunding 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.
11. 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.
12. 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.
13. 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.
14. 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.
7
<PAGE>
15. 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.
16. 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.
17. 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.
8
<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1995 A]
PARTIES
First Security Bank of Utah, National Association, in its individual capacity
and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
FINOVA Capital Corporation
ABN AMRO Bank N.V.
Bankers Trust Company
Chemical Bank
The Chase Manhattan Bank (National Association)
Rabobank Nederland (Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.)
The Bank of Nova Scotia
The Bank of Tokyo Trust Company
Banque Francaise du Commerce Exterieur
Banque Nationale de Paris
Banque Paribas
Compagnie Financiere de CAC et de l' Union Europeenne
Credit Suisse
De Nationale Investeringsbank N.V.
Hamburgische Landesbank-Girozentrale
Internationale Nederlanden Lease Ireland B.V., Dublin
KB Financial Services (Ireland)
Landesbank Hessen-Thuringen Girozentrale
<PAGE>
The Nippon Credit Bank, Ltd., Los Angeles Agency
Norddeutsche Landesbank Girozentrale
PNC Bank, National Association
Royal Bank of Canada
Westland/Utrecht Hypotheekbank N.V.
The Yasuda Trust and Banking Company, Ltd.
Berliner Bank AG, London Branch
<PAGE>
Exhibit 4(a)(4)
================================================================================
GUARANTEE
[NW 1995 B]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 757-251 Aircraft
================================================================================
<PAGE>
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. Representations and Warranties ....................................... 5
8. Jurisdictional Matters ............................................... 6
9. Integration; Counterparts; Successors and Assigns; Headings .......... 6
10. Notices .............................................................. 6
11. No Waivers ........................................................... 6
12. Survival ............................................................. 7
13. Severability ......................................................... 7
14. GOVERNING LAW ........................................................ 7
15. Enforcement Expenses ................................................. 7
16. Termination .......................................................... 7
17. No Guarantee of Secured Certificates ................................. 7
<PAGE>
GUARANTEE
[NW 1995 B]
This GUARANTEE [NW 1995 B], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1995 B], dated as of December 13, 1995 (as amended,
modified or supplemented from time to time, the "Lease"), between the Lessee and
First Security Bank of Utah, 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) Boeing 757-251
aircraft, together with two (2) Pratt & Whitney Model PW2037 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 1995 B], dated December 13, 1995 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among the Lessee and the Parties; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1995 B], dated as of December 13, 1995, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
<PAGE>
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 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,
together with all other Financial Obligations of the Lessee which are then due
and unpaid. 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 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 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
in writing
2
<PAGE>
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 said
Obligations have been satisfied by such substitution, release or exchange in
accordance with the terms of the other 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 in writing 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 (as such
term is defined in the Trust Indenture), 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
3
<PAGE>
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. Following the termination of the Trust Indenture in accordance
with its terms, none of the Persons listed on Schedule I hereto under the
caption "Lender Parties" shall be, or be deemed to be, Parties for purposes of
this Guarantee.
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 while an Event of Default shall have occurred and be
continuing.
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
4
<PAGE>
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 (as
such term is defined in the Trust Indenture).
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 other than in respect of Excluded Payments (as such term is defined
in the Trust Indenture), 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. Representations and Warranties. The Guarantor hereby represents
and warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in good
standing pursuant to the laws of the State of Delaware. It has all
requisite corporate power and authority to own and operate its properties,
to carry on its business as presently conducted and to enter into and
perform its obligations under this Guarantee.
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the
taking of any other action in respect of, any Federal, state, municipal or
other governmental department, bureau, agency or instrumentality, and no
filing, recording, publication or registration in any public office or any
other place, is now, or under existing law in the future will be, required
or necessary on its behalf to authorize the execution, delivery and
performance (other than as contemplated by the Operative Documents in the
case of the performance of the Non-Financial Obligations) by it of this
Guarantee, or for the legality, validity, binding effect or enforceability
hereof.
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under, or result in any creation or
imposition of any Lien upon any of its property or assets under, any
applicable laws or any indenture, mortgage, deed of trust or other
instrument or agreement to which it is a party or by which it may be bound
or to which any of its property or assets may be subject, or its Articles
of Incorporation or by-laws.
5
<PAGE>
(d) The execution, delivery and performance by it of this Guarantee
have been duly authorized by all necessary corporate action. This
Guarantee has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable in accordance with its
terms except as enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
8. 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 nonexclusive 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,
Wickersham & Taft, 100 Maiden Lane, New York, New York 10038, 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.
9. 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 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.
10. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
6
<PAGE>
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance
and Treasurer
Telecopy No.: (612) 726-0665
If to a Party:
to the address or telecopy number set forth in or
pursuant to 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.
11. 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.
12. 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.
13. 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.
14. GOVERNING LAW. THIS GUARANTY 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.
15. 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.
16. 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.
7
<PAGE>
17. 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.
8
<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW1995 B]
PARTIES
Equity Parties
First Security Bank of Utah, National Association,
in its individual capacity and as Owner Trustee
USL Capital Corporation
Lender Parties
State Street Bank and Trust Company, as Indenture Trustee
ABN AMRO Bank N. V.
Bankers Trust Company
Rabobank Nederland (Cooperatieve Centrale Raiffeisen-Boerenleenbank B. A.)
The Chase Manhattan Bank (National Association)
Landesbank Hessen-Thuringen Girozentrale
Chemical Bank
The Bank of Tokyo Trust Company
The Bank of Nova Scotia
Banque Francaise du Commerce Exterieur
Banque Nationale de Paris
Banque Paribas
Compagnie Financiare de CIC et de I'Union Europeene
Credit Suisse
De Nationale Investeringsbank N. V.
Hamburgische Landesbank-Girozentrale
Internationale Nederlanden Lease Ireland B. V., Dublin
KB Financial Services (Ireland)
The Nippon Credit Bank, Ltd., Los Angeles Agency
Norddeutsche Landesbank Girozentrale
PNC Bank, National Association
Royal Bank of Canada
Westland/Utrecht Hypotheekbank N. V.
The Yasuda Trust and Banking Company, Ltd.
Berliner Bank AG, London Branch
<PAGE>
Exhibit 4(a)(5)
================================================================================
GUARANTEE
[NW 1996 A]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 757-251 Aircraft
================================================================================
<PAGE>
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 ...................................................... 5
5. Payments ............................................................. 5
6. Assignment of Guarantee .............................................. 5
7. Representations and Warranties ....................................... 5
8. Jurisdictional Matters ............................................... 6
9. Integration; Counterparts; Successors and Assigns; Headings .......... 7
10. Notices .............................................................. 7
11. No Waivers ........................................................... 7
12. Survival ............................................................. 7
13. Severability ......................................................... 8
14. GOVERNING LAW ........................................................ 8
15. Enforcement Expenses ................................................. 8
16. Termination .......................................................... 8
17. No Guarantee of Secured Certificates ................................. 8
<PAGE>
GUARANTEE
[NW 1996 A]
This GUARANTEE [NW 1996 A], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1996 A], dated as of February 27, 1996 (as amended,
modified or supplemented from time to time, the "Lease"), between the Lessee and
First Security Bank of Utah, 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) Boeing 757-251
aircraft, together with two (2) Pratt & Whitney Model PW2037 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 1996 A], dated February 27, 1996 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among the Lessee and the Parties; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1996 A], dated February 27, 1996, 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;
WHEREAS, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
<PAGE>
NOW, THEREFORE, in consideration of the foregoing 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 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 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.
2
<PAGE>
(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
in writing 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 in writing
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 (as such
term is defined in the Trust Indenture), 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
3
<PAGE>
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 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:
(a) while an Event of Default shall have occurred and be continuing,
in which
4
<PAGE>
case no such payment in respect of such a claim by the Guarantor may be
made by the Lessee; or
(b) 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 (as such term is defined in the Trust Indenture).
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. Representations and Warranties. The Guarantor hereby represents and
warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in good
standing
5
<PAGE>
pursuant to the laws of the State of Delaware. It has all requisite
corporate power and authority to own and operate its properties, to carry
on its business as presently conducted and to enter into and perform its
obligations under this Guarantee.
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the
taking of any other action in respect of, any Federal, state, municipal or
other governmental department, bureau, agency or instrumentality, and no
filing, recording, publication or registration in any public office or any
other place, is now, or under existing law in the future will be, required
or necessary on its behalf to authorize the execution, delivery and
performance (other than as contemplated by the Operative Documents in the
case of the performance of the Non-Financial Obligations) by it of this
Guarantee, or for the legality, validity, binding effect or enforceability
hereof.
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under, or result in any creation or
imposition of any Lien upon any of its property or assets under, any
applicable laws or any indenture, mortgage, deed of trust or other
instrument or agreement to which it is a party or by which it may be bound
or to which any of its property or assets may be subject, or its Articles
of Incorporation or by-laws.
(d) The execution, delivery and performance by it of this Guarantee
have been duly authorized by all necessary corporate action. This
Guarantee has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable in accordance with its
terms except as enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
8. 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,
Wickersham & Taft, 100 Maiden Lane, New York, New York 10038, 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.
6
<PAGE>
9. 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.
10. Notices. All requests, notices or other communications hereunder shall be
in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (612) 726-0665
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.
11. 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.
12. 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
7
<PAGE>
Guarantee regardless of any investigation made by any Party or any other
Person.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
8
<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1996 A]
PARTIES
First Security Bank of Utah, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
FINOVA Capital Corporation
ABN AMRO Bank N.V.
Bankers Trust Company
Chemical Bank
The Chase Manhattan Bank (National Association)
Rabobank Nederland (Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.)
The Bank of Nova Scotia
The Bank of Tokyo Trust Company
Banque Francaise du Commerce Exterieur
Banque Nationale de Paris
Banque Paribas
Compagnie Financiere de CIC et de l'Union Europeenne
Credit Suisse
De Nationale Investeringsbank N.V.
Hamburgische Landesbank-Girozentrale
Internationale Nederlanden Lease Ireland B.V., Dublin
KB Financial Services Ireland)
<PAGE>
Landesbank Hessen-Thuringen Girozentrale
The Nippon Credit Bank, Ltd., Los Angeles Agency
Norddeutsche Landesbank Girozentrale
PNC Bank, National Association
Royal Bank of Canada
Westland/Utrecht Hypotheekbank N.V.
The Yasuda Trust and Banking Company, Ltd.
Berliner Bank AG, London Branch
<PAGE>
Exhibit 4(a)(6)
================================================================================
GUARANTEE
[NW 1996 B]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 757-251 Aircraft
================================================================================
<PAGE>
TABLE OF CONTENTS TO GUARANTEE
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. Representations and Warranties .......................................... 5
8. Jurisdictional Matters .................................................. 6
9. Integration; Counterparts; Successors and Assigns; Headings ............. 6
10. Notices ................................................................ 7
11. No Waivers ............................................................. 7
12. Survival ............................................................... 7
13. Severability ........................................................... 7
14. GOVERNING LAW .......................................................... 7
15. Enforcement Expenses ................................................... 8
16. Termination ............................................................ 8
17. No Guarantee of Secured Certificates ................................... 8
<PAGE>
GUARANTEE
[NW 1996 B]
This GUARANTEE [NW 1996 B], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1996 B], dated as April 24, 1996 (as amended,
modified or supplemented from time to time, the "Lease"), between the Lessee and
First Security Bank of Utah, 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) Boeing 757-251
aircraft, together with two (2) Pratt & Whitney Model PW2037 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 1996 B], April 24, 1996 (as amended, modified or
supplemented from time to time , the "Participation Agreement"), among the
Lessee and the Parties; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1996 B], dated April 24, 1996, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
<PAGE>
NOW, THEREFORE, in consideration for the foregoing 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 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 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
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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
in writing 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 in writing 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 (as such term is defined in the
Trust Indenture), 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
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<PAGE>
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 there;
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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such claim by the Guarantor
may be made by the Lessee; or
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<PAGE>
(b) 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 (as such term is defined in the Trust Indenture).
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 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. Representations and Warranties. The Guarantor hereby represents
and warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in good
standing pursuant to the laws of the State of Delaware. It has all
requisite corporate power and authority to own and operate its properties,
to carry on its business as presently conducted and to enter into and
perform its obligations under this Guarantee.
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the
taking of any other action in
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<PAGE>
respect of, any Federal, state, municipal or other governmental
department, bureau, agency or instrumentality, and no filing, recording,
publication or registration in any public office or any other place, is
now, or under existing law in the future will be, required or necessary on
its behalf to authorize the execution, delivery and performance (other
than as contemplated by the Operative Documents in the case of the
performance of the Non-Financial Obligations) by it of this Guarantee, or
for the legality, validity, binding effect or enforceability hereof.
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under, or result in any creation or
imposition of any Lien upon any of its property or assets under, any
applicable laws or any indenture, mortgage, deed of trust or other
instrument or agreement to which it is a party or by which it may be bound
or to which any of its property or assets may be subject, or its Articles
of Incorporation or by-laws.
(d) The execution, delivery and performance by it of this Guarantee
have been duly authorized by all necessary corporate action. This
Guarantee has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable in accordance with its
terms except as enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
8. 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 othewise, 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, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
Attention: Managing Attorney, or such office of the Guarantor in New York City
as from time to time may be designated in writing to the Parties.
9. 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.
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<PAGE>
10. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U. S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President % Finance and Treasurer
Telecopy No. : (612) 726-0665
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.
11. 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 execise of any other right or remedy.
12. 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.
13. 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.
14. 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
7
<PAGE>
GUARANTEE SHALL BE DEEMED MADE WHEN DELIVERED IN NEW YORK, NEW YORK.
15. 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.
16. 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.
17. 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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<PAGE>
IN WITNESS WHEREOF, the parties heeto have caused this Guarantee to
be duly executed as of the date first hereinabove set forth.
NORTHWEST AIRLINES CORPORATION
By: /s/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1996 B]
PARTIES
First Security Bank of Utah, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
BNY Capital Funding Corp.
ABN AMRO Bank N. V.
Bankers Trust Company
Chemical Bank
The Chase Manhattan Bank (National Association)
Rabobank Nederland (Cooperative Centrale Raiffeisen-Boerenleenbank B. A.)
The Bank of Nova Scotia
Bank of Tokyo-Mitsubishi Trust Company
Banque Francaise du Commerce Exterieur
Banque Nationale de Paris
Banque Paribas
Compagnie Financiere de CIC et de l'Union Europeenne
Credit Suisse
De Nationale Investeringsbank N. V.
Hamburgische Landesbank-Girozentrale
Internationale Nederlanden Lease Ireland B. V., Dublin
KB Financial Services (Ireland)
<PAGE>
Landesbank Hessen-Thuringen Girozentrale
The Nippon Credit Bank, Ltd., Los Angeles Agency
Norddeutsche Landesbank Girozentrale
PNC Bank, National Association
Royal Bank of Canada
Westland/Utrecht Hypotheekbank N. V.
The Yasuda Trust and Banking Company, Ltd.
Berliner Bank AG, London Branch
<PAGE>
Exhibit 4(a)(7)
================================================================================
GUARANTEE
[NW 1996 C]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 757-251 Aircraft
================================================================================
<PAGE>
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 ...................................................... 5
5. Payments ............................................................. 5
6. Assignment of Guarantee .............................................. 5
7. Representations and Warranties ....................................... 5
8. Jurisdictional Matters ............................................... 6
9. Integration; Counterparts; Successors and Assigns; Headings .......... 6
10. Notices .............................................................. 6
11. No Waivers ........................................................... 7
12. Survival ............................................................. 7
13. Severability ......................................................... 7
14. Governing Law ........................................................ 7
15. Enforcement Expenses ................................................. 8
16. Termination .......................................................... 8
17. No Guarantee of Secured Certificates ................................. 8
<PAGE>
GUARANTEE
[NW 1996 C]
This GUARANTEE [NW 1996 C], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1996 C], dated as of April 26, 1996 (as amended,
modified or supplemented from time to time, the "Lease"), between the Lessee and
First Security Bank of Utah, 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) Boeing 757-251
aircraft, together with two (2) Pratt & Whitney Model PW2037 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 1996 C], dated as of April 26, 1996 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among the Lessee and the Parties; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1996 C], dated as April 26, 1996, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
<PAGE>
NOW, THEREFORE, in consideration of the foregoing 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 IndemnityAgreement 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 disaffirrnance with respect to the
Lessee of the Lease or 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
2
<PAGE>
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 in writing 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 in writing 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 (as such
term is defined in the Trust Indenture), 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
3
<PAGE>
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 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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
(b) 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
<PAGE>
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 (as such term is defined in the Trust Indenture).
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. Representations and Warranties. The Guarantor hereby represents
and warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in good
standing pursuant to the laws of the State of Delaware. It has all
requisite corporate power and authority to own and operate its properties,
to carry on its business as presently conducted and to enter into and
perform its obligations under this Guarantee.
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the
taking of any other action in respect of, any Federal, state, municipal or
other governmental department, bureau, agency or instrumentality, and no
filing, recording, publication or registration in any public office or any
other place, is now, or under existing law in the future will be, required
or necessary on its behalf to authorize the execution, delivery and
performance (other than as contemplated by the Operative Documents in the
case of the performance of the Non-Financial Obligations) by it of this
Guarantee, or for the legality, validity, binding effect or enforceability
hereof.
5
<PAGE>
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under, or result in any creation or
imposition of any Lien upon any of its property or assets under, any
applicable laws or any indenture, mortgage, deed of trust or other
instrument or agreement to which it is a party or by which it may be bound
or to which any of its property or assets may be subject, or its Articles
of Incorporation or by-laws
(d) The execution, delivery and performance by it of this Guarantee
have been duly authorized by all necessary corporate action. This
Guarantee has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable in accordance with its
terms except as enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
8. 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, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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.
9. 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.
10. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
6
<PAGE>
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President-Finance and Treasurer
Telecopy No.: (612) 726-0665
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.
11. 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 or under the Lease, the Participation Agreement or the other
Operative Documents, and any other agreement or instrument relating thereto 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 or under the Lease, the
Participation Agreement or the other Operative Documents, and any other
agreement or instrument relating thereto.
12. 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.
13. 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.
14. 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
7
<PAGE>
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS GUARANTEE SHALL BE
DEEMED MADE WHEN DELIVERED IN NEW YORK, NEW YORK.
15. 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.
16. 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.
17. 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.
8
<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1996 C]
PARTIES
First Security Bank of Utah, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
NCC Key Company
ABN AMRO Bank N.V.
Bankers Trust Company
Chemical Bank
The Chase Manhattan Bank (National Association)
Rabobank Nederland (Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.)
The Bank of Nova Scotia
Bank of Tokyo-Mitsubishi Trust Company
Banque Francaise du Commerce Exterieur
Banque Nationale de Paris
Banque Paribas
Compagnie Financiere de CIC et de l'Union Europeenne
Credit Suisse
De Nationale Investeringsbank N.V.
Hamburgische Landesbank-Girozentrale
Internationale Nederlanden Lease Ireland B.V.
KB Financial Services (Ireland)
<PAGE>
Landesbank Hessen-Thuringen Girozentrale
The Nippon Credit Bank, Ltd., Los Angeles Agency
Norddeutsche Landesbank Girozentrale
PNC Bank, National Association
Royal Bank of Canada
Westland/Utrecht Hypotheekbank N.V.
The Yasuda Trust and Banking Company, Limited
Berliner Bank AG, London Branch
<PAGE>
Exhibit 4(a)(8)
================================================================================
GUARANTEE
[NW 1996 D]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 757-251 Aircraft
================================================================================
<PAGE>
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 ...................................................... 5
5. Payments ............................................................. 5
6. Assignment of Guarantee .............................................. 5
7. Representations and Warranties ....................................... 5
8. Jurisdictional Matters ............................................... 6
9. Integration; Counterparts; Successors and Assigns; Headings .......... 6
10. Notices .............................................................. 7
11. No Waivers ........................................................... 7
12. Survival ............................................................. 7
13. Severability ......................................................... 7
14. GOVERNING LAW ........................................................ 8
15. Enforcement Expenses ................................................. 8
16. Termination .......................................................... 8
17. No Guarantee of Secured Certificates ................................. 8
<PAGE>
GUARANTEE
[NW 1996 D]
This GUARANTEE [NW 1996 D], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1996 D], dated as of April 29, 1996 (as amended,
modified or supplemented from time to time, the "Lease"), between the Lessee and
First Security Bank of Utah, 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) Boeing 757-251
aircraft, together with two (2) Pratt & Whitney Model PW2037 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 1996 D], April 29, 1996 (as amended, modified or
supplemented from time to time, the "Participation Agreement"), among the Lessee
and the Parties; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1996 D], dated as of April 29, 1996, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
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<PAGE>
NOW, THEREFORE, in consideration of the foregoing 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 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 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)
-2-
<PAGE>
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 in writing 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 in writing 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 (as such
term is defined in the Trust Indenture), 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.
-3-
<PAGE>
(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 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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
(b) 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
-4-
<PAGE>
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 (as such term is defined in the Trust Indenture).
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. Representations and Warranties. The Guarantor hereby represents
and warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in
good standing pursuant to the laws of the State of Delaware. It has all
requisite corporate power and authority to own and operate its properties,
to carry on its business as presently conducted and to enter into and
perform its obligations under this Guarantee.
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the
taking of any other action in respect of,
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<PAGE>
any Federal, state, municipal or other governmental department, bureau,
agency or instrumentality, and no filing, recording, publication or
registration in any public office or any other place, is now, or under
existing law in the future will be, required or necessary on its behalf to
authorize the execution, delivery and performance (other than as
contemplated by the Operative Documents in the case of the performance of
the Non-Financial Obligations) by it of this Guarantee, or for the
legality, validity, binding effect or enforceability hereof.
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under, or result in any creation or
imposition of any Lien upon any of its property or assets under, any
applicable laws or any indenture, mortgage, deed of trust or other
instrument or agreement to which it is a party or by which it may be bound
or to which any of its property or assets may be subject, or its Articles
of Incorporation or by-laws.
(d) The execution, delivery and performance by it of this
Guarantee have been duly authorized by all necessary corporate action.
This Guarantee has been duly executed and delivered by it and constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms except as enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
8. 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, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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.
9. 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
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<PAGE>
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.
10. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President-Finance and Treasurer
Telecopy No.: (612) 726-0665
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.
11. 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 or under the Lease, the Participation Agreement or the other
Operative Documents, and any other agreement or instrument relating thereto 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 or under the Lease, the
Participation Agreement or the other Operative Documents, and any other
agreement or instrument relating thereto.
12. 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.
13. 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
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<PAGE>
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.
14. 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.
15. 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.
16. 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.
17. 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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<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1996 D]
PARTIES
First Security Bank of Utah, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
NCC Key Company
ABN AMRO Bank N.V.
Bankers Trust Company
Chemical Bank
The Chase Manhattan Bank (National Association)
Rabobank Nederland (Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.)
The Bank of Nova Scotia
Bank of Tokyo-Mitsubishi Trust Company
Banque Francaise du Commerce Exterieur
Banque Nationale de Paris
Banque Paribas
Compagnie Financiere de CIC et de l'Union Europeenne
Credit Suisse
De Nationale Investeringsbank N.V.
Hamburgische Landesbank-Girozentrale
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<PAGE>
Internationale Nederlanden Lease Ireland B.V.
KB Financial Services (Ireland)
Landesbank Hessen-Thuringen Girozentrale
The Nippon Credit Bank, Ltd., Los Angeles Agency
Norddeutsche Landesbank Girozentrale
PNC Bank, National Association
Royal Bank of Canada
Westland/Utrecht Hypotheekbank N.V.
The Yasuda Trust and Banking Company, Limited
Berliner Bank AG, London Branch
<PAGE>
Exhibit 4(a)(9)
================================================================================
GUARANTEE
[NW 1996 E]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 757-251 Aircraft
================================================================================
<PAGE>
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. .......................................................... 5
5. Payments .................................................................. 5
6. Assignment of Guarantee ................................................... 5
7. Representations and Warranties ............................................ 6
8. Jurisdictional Matters .................................................... 6
9. Integration; Counterparts; Successors and Assigns; Headings ............... 7
10. Notices .................................................................. 7
11. No Waivers ............................................................... 7
12. Survival ................................................................. 8
13. Severability ............................................................. 8
14. GOVERNING LAW ............................................................ 8
15. Enforcement Expenses ..................................................... 8
16. Termination .............................................................. 8
17. No Guarantee of Secured Certificates ..................................... 8
<PAGE>
GUARANTEE
[NW 1996 E]
This GUARANTEE [NW 1996 E], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1996 E], dated as of April 29, 1996 (as amended,
modified or supplemented from time to time, the "Lease"), between the Lessee and
First Security Bank of Utah, 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) Boeing 757-251
aircraft, together with two (2) Pratt & Whitney Model PW2037 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 1996 E], dated April 29, 1996 (as amended, modified
or supplemented from time to time, the "Participation Agreement"), among the
Lessee and the Parties; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1996 E], dated as of April 29, 1996, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
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WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
NOW, THEREFORE, in consideration of the foregoing 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 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 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
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<PAGE>
(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
in writing 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 in writing
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 (as such
term is defined in the Trust Indenture), 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
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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 thereto;
provided, however, that the Guarantor shall not
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<PAGE>
be entitled to receive payment from the Lessee in respect of any claim against
the Lessee arising from a payment by the Guarantor:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
(b) 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 (as such term is defined in the Trust Indenture).
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.
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<PAGE>
7. Representations and Warranties. The Guarantor hereby represents
and warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in good
standing pursuant to the laws of the State of Delaware. It has all requisite
corporate power and authority to own and operate its properties, to carry on its
business as presently conducted and to enter into and perform its obligations
under this Guarantee.
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the taking
of any other action in respect of, any Federal, state, municipal or other
governmental department, bureau, agency or instrumentality, and no filing,
recording, publication or registration in any public office or any other place,
is now, or under existing law in the future will be, required or necessary on
its behalf to authorize the execution, delivery and performance (other than as
contemplated by the Operative Documents in the case of the performance of the
Non-Financial Obligations) by it of this Guarantee, or for the legality,
validity, binding effect or enforceability hereof.
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any breach of,
or constitute a default under, or result in any creation or imposition of any
Lien upon any of its property or assets under, any applicable laws or any
indenture, mortgage, deed of trust or other instrument or agreement to which it
is a party or by which it may be bound or to which any of its property or assets
may be subject, or its Articles of Incorporation or by-laws.
(d) The execution, delivery and performance by it of this Guarantee
have been duly authorized by all necessary corporate action. This Guarantee has
been duly executed and delivered by it and constitutes its legal, valid and
binding obligation enforceable in accordance with its terms except as
enforceability thereof may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
8. 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, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
Attention: Managing
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<PAGE>
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.
9. 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.
10. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
or overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and
Treasurer
Telecopy No.: (612) 726-0665
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.
11. 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 or under the Lease, the Participation Agreement or the other
Operative Documents, and any other agreement or instrument relating thereto 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 or under the Lease, the
Participation
-7-
<PAGE>
Agreement or the other Operative Documents, and any other agreement or
instrument relating thereto.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
-8-
<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1996 E]
PARTIES
First Security Bank of Utah, National Association, in its individual capacity
and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
NCC Key Company
ABN AMRO Bank N.V.
Bankers Trust Company
Chemical Bank
The Chase Manhattan Bank (National Association)
Rabobank Nederland (Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.)
The Bank of Nova Scotia
Bank of Tokyo-Mitsubishi Trust Company
Banque Francaise du Commerce Exterieur
Banque Nationale de Paris
Banque Paribas
Compagnie Financiere de CIC et de l'Union Europeenne
Credit Suisse
De Nationale Investeringsbank N.V.
Hamburgische Landesbank-Girozentrale
Internationale Nederlanden Lease Ireland B.V.
<PAGE>
KB Financial Services (Ireland)
Landesbank Hessen-Thuringen Girozentrale
The Nippon Credit Bank, Ltd., Los Angeles Agency
Norddeutsche Landesbank Girozentrale
PNC Bank, National Association
Royal Bank of Canada
Westland/Utrecht Hypotheekbank N.V.
The Yasuda Trust and Banking Company, Limited
Berliner Bank AG, London Branch
<PAGE>
Exhibit 4(a)(10)
================================================================================
GUARANTEE
[NW 1996 F]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 757-251 Aircraft
================================================================================
<PAGE>
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. .......................................................... 5
5. Payments .................................................................. 5
6. Assignment of Guarantee ................................................... 5
7. Representations and Warranties ............................................ 5
8. Jurisdictional Matters .................................................... 6
9. Integration; Counterparts; Successors and Assigns; Headings ............... 6
10. Notices .................................................................. 7
11. No Waivers ............................................................... 7
12. Survival ................................................................. 7
13. Severability ............................................................. 7
14. GOVERNING LAW ............................................................ 8
15. Enforcement Expenses ..................................................... 8
16. Termination .............................................................. 8
17. No Guarantee of Secured Certificates ..................................... 8
Schedule I - Parties
<PAGE>
GUARANTEE
[NW 1996 F]
This GUARANTEE [NW 1996 F], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1996 F], dated as of May 14, 1996 (as amended,
modified or supplemented from time to time, the "Lease"), between the Lessee and
First Security Bank of Utah, 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) Boeing 757-251
aircraft, together with two (2) Pratt & Whitney Model PW2037 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 1996 F], dated May 14, 1996 (as amended, modified or
supplemented from time to time, the "Participation Agreement"), among the Lessee
and the Parties; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest")
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1996 F], dated May 14, 1996, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
-1-
<PAGE>
NOW, THEREFORE, in consideration of the foregoing 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 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 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
-2-
<PAGE>
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 in writing 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 in writing 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 (as such
term is defined in the Trust Indenture), 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.
-3-
<PAGE>
(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 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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
(b) 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
-4-
<PAGE>
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 (as such term is defined in the Trust Indenture).
6. Assignment of Guarantee. As and to the extent provided in the
TrustIndenture, 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. Representations and Warranties. The Guarantor hereby represents
and warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in good
standing pursuant to the laws of the State of Delaware. It has all
requisite corporate power and authority to own and operate its properties,
to carry on its business as presently conducted and to enter into and
perform its obligations under this Guarantee.
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the
taking of any other action in respect of, any Federal, state, municipal or
other governmental department, bureau, agency or instrumentality, and no
filing, recording, publication or registration in any public office or any
other place, is now, or under existing law in the future will be,
-5-
<PAGE>
required or necessary on its behalf to authorize the execution, delivery
and performance (other than as contemplated by the Operative Documents in
the case of the performance of the Non-Financial Obligations) by it of
this Guarantee, or for the legality, validity, binding effect or
enforceability hereof.
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under, or result in any creation or
imposition of any Lien upon any of its property or assets under, any
applicable laws or any indenture, mortgage, deed of trust or other
instrument or agreement to which it is a party or by which it may be bound
or to which any of its property or assets may be subject, or its Articles
of Incorporation or by-laws.
(d) The execution, delivery and performance by it of this Guarantee
have been duly authorized by all necessary corporate action. This
Guarantee has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable in accordance with its
terms except as enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
8. 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, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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.
9. 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.
-6-
<PAGE>
10. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St.Paul, Minnesota 55111-3034
or overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (612) 726-0665
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.
11. 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 or under the Lease, the Participation Agreement or the other
Operative Documents, and any other agreement or instrument relating thereto 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 or under the Lease, the
Participation Agreement or the other Operative Documents, and any other
agreement or instrument relating thereto.
12. 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.
13. 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.
-7-
<PAGE>
14. 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.
15. 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.
16. 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.
17. 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.
-8-
<PAGE>
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/ Douglas M. Steenland
-----------------------------------------
Name: Douglas M. Steenland
Title:Executive Vice President, General
Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1996 F]
PARTIES
First Security Bank of Utah, National Association, in its individual capacity
and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
NCC Key Company
ABN AMRO Bank N.V.
Bankers Trust Company
Chemical Bank
The Chase Manhattan Bank (National Association)
Rabobank Nederland (Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.)
The Bank of Nova Scotia
Bank of Tokyo-Mitsubishi Trust Company
Banque Francaise du Commerce Exterieur
Banque Nationale de Paris
Banque Paribas
Compagnie Financiere de CIC et de l'Union Europeenne
Credit Suisse
De Nationale Investeringsbank N.V.
Hamburgische Landesbank-Girozentrale
Internationale Nederlanden Lease Ireland B.V.
KB Financial Services (Ireland)
<PAGE>
Landesbank Hessen-Thuringen Girozentrale
The Nippon Credit Bank, Ltd., Los Angeles Agency
Norddeutsche Landesbank Girozentrale
PNC Bank, National Association
Royal Bank of Canada
Westland/Utrecht Hypotheekbank N.V.
The Yasuda Trust and Banking Company, Limited
Berliner Bank AG, London Branch
<PAGE>
Exhibit 4(a)(11)
================================================================================
GUARANTEE
[NW 1996 G]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One Boeing 757-251 Aircraft
================================================================================
<PAGE>
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. ...................................................... 5
5. Payments .............................................................. 5
6. Assignment of Guarantee ............................................... 5
7. Representations and Warranties ........................................ 5
8. Jurisdictional Matters ................................................ 6
9. Integration; Counterparts; Successors and Assigns; Headings ........... 6
10. Notices ............................................................... 7
11. No Waivers ............................................................ 7
12. Survival .............................................................. 7
13. Severability .......................................................... 8
14. GOVERNING LAW ......................................................... 8
15. Enforcement Expenses .................................................. 8
16. Termination ........................................................... 8
17. No Guarantee of Secured Certificates .................................. 8
<PAGE>
GUARANTEE
[NW 1996 G]
This GUARANTEE [NW 1996 G], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1996 G], dated as of May 29, 1996 (as amended,
modified or supplemented from time to time, the "Lease"), between the Lessee and
First Security Bank of Utah, 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) Boeing 757-251
aircraft, together with two (2) Pratt & Whitney Model PW2037 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 1996 G], dated May 29, 1996(as amended, modified or
supplemented from time to time, the "Participation Agreement"), among the Lessee
and the Parties; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1996 G], dated May 29, 1996, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used
<PAGE>
herein as defined in the Lease;
NOW, THEREFORE, in consideration of the foregoing 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 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 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
-2-
<PAGE>
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
in writing 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 in writing
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 (as such
term is defined in the Trust Indenture), 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
-3-
<PAGE>
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 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:
(a) while an Event of Default shall have occurred and be continuing,
in which
-4-
<PAGE>
case no such payment in respect of such a claim by the Guarantor may be
made by the Lessee; or
(b) 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 (as such term is defined in the Trust Indenture).
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. Representations and Warranties. The Guarantor hereby represents
and warrants to the Parties as follows:
(a) It is a corporation duly organized and validly existing in good
standing pursuant to the laws of the State of Delaware. It has all
requisite corporate power and
-5-
<PAGE>
authority to own and operate its properties, to carry on its business as
presently conducted and to enter into and perform its obligations under
this Guarantee.
(b) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with or the
taking of any other action in respect of, any Federal, state, municipal or
other governmental department, bureau, agency or instrumentality, and no
filing, recording, publication or registration in any public office or any
other place, is now, or under existing law in the future will be, required
or necessary on its behalf to authorize the execution, delivery and
performance (other than as contemplated by the Operative Documents in the
case of the performance of the Non-Financial Obligations) by it of this
Guarantee, or for the legality, validity, binding effect or enforceability
hereof.
(c) Neither the execution and delivery of this Guarantee, the
performance of its obligations hereunder, nor its consummation of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under, or result in any creation or
imposition of any Lien upon any of its property or assets under, any
applicable laws or any indenture, mortgage, deed of trust or other
instrument or agreement to which it is a party or by which it may be bound
or to which any of its property or assets may be subject, or its Articles
of Incorporation or by-laws.
(d) The execution, delivery and performance by it of this Guarantee
have been duly authorized by all necessary corporate action. This
Guarantee has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable in accordance with its
terms except as enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
8. 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, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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.
9. Integration; Counterparts; Successors and Assigns; Headings. This
-6-
<PAGE>
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.
10. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President - Finance and Treasurer
Telecopy No.: (612) 726-0665
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.
11. 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 or under the Lease, the Participation Agreement or the other
Operative Documents, and any other agreement or instrument relating thereto 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 or under the Lease, the
Participation Agreement or the other Operative Documents, and any other
agreement or instrument relating thereto.
12. Survival. All representations and warranties contained herein or
made in
-7-
<PAGE>
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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
-8-
<PAGE>
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/ Douglas M. Steenland
-------------------------------------
Name: Douglas M. Steenland
Title:Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1996 G]
PARTIES
First Security Bank of Utah, National Association, in its individual capacity
and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
NCC Key Company
ABN AMRO Bank N.V.
<PAGE>
Exhibit 4(a)(12)
================================================================================
GUARANTEE
[NW 1997 A]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
================================================================================
<PAGE>
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. ..................................................... -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 ............................................................. -7-
12. Severability ......................................................... -7-
13. GOVERNING LAW ........................................................ -7-
14. Enforcement Expenses ................................................. -7-
15. Termination .......................................................... -7-
16. No Guarantee of Secured Certificates ................................. -7-
-9-
<PAGE>
GUARANTEE
[NW 1997 A]
This GUARANTEE [NW 1997 A], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1997 A], dated as of September 25, 1997 (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, begin collectively referred to herein as the "Aircraft"), pursuant to a
Participation Agreement [NW 1997 A], dated September 25, 1997 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among the Lessee, the Parties and certain other entities; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest")
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1997 A], dated September 25, 1997, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
<PAGE>
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Guarantee.
(a) The Guarantor 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
Obligations 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 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
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<PAGE>
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 in writing 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 in writing 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 (as such
term is defined in the Trust Indenture), 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
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<PAGE>
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 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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
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<PAGE>
(b) 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 (as such term is defined in the Trust Indenture).
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 not be enforced in
or by such courts. The Guarantor hereby generally consents to service of process
at Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
Attention: Managing
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<PAGE>
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:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (612) 726-0665
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.
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<PAGE>
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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<PAGE>
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/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title:Executive Vice President, General
Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1997 A]
PARTIES
First Security Bank, National Association, in its individual capacity and as
Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
FINOVA Capital Corporation
<PAGE>
Exhibit 4(a)(13)
GUARANTEE
[NW 1997 B]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
<PAGE>
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 .......................................................... 7
16. No Guarantee of Secured Certificates ................................. 7
<PAGE>
GUARANTEE
[NW 1997 B]
This GUARANTEE [NW 1997 B], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1997 B], dated as of September 25, 1997 (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 a
Participation Agreement [NW 1997 B], dated as of September 25, 1997 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among the Lessee, the Parties and certain other entities; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1997 B], dated as of September 25, 1997, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
<PAGE>
NOW, THEREFORE, in consideration of the foregoing 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 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 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
in writing
2
<PAGE>
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 in writing
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 (as such
term is defined in the Trust Indenture), 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
3
<PAGE>
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 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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
(b) 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
4
<PAGE>
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 (as
such term is defined in the Trust Indenture).
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 not be enforced in
or by such courts. The Guarantor hereby generally consents to service of process
at Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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:
5
<PAGE>
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President-Finance and Treasurer
Telecopy No.: (612) 726-0665
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 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.
6
<PAGE>
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.
7
<PAGE>
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/ Douglas M. Steenland
-----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1997 B]
PARTIES
First Security Bank, National Association, in its individual capacity and as
Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
FINOVA Capital Corporation
<PAGE>
Exhibit 4(a)(14)
================================================================================
GUARANTEE
[NW 1997 C]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
================================================================================
<PAGE>
TABLE OF CONTENTS TO GUARANTEE
1. Guarantee .............................................................. 2
2. No Implied Third Partner 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
(i)
<PAGE>
GUARANTEE
[NW 1997 C]
This GUARANTEE [NW 1997 C], dated as of November 20, 1998 (as amended,
modified or supplemented from time to time, this "Guarantee"), from NORTHWEST
AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease
Agreement [NW 1997 C], dated as of September 25, 1997 (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 a Participation
Agreement [NW 1997 C], dated as of September 25, 1997 (as amended, modified or
supplemented from time to time, the "Participation Agreement"), among the
Lessee, the Parties and certain other entities; and
WHEREAS, it was a condition precedent to the obligations of the Parties to
consummate the transactions contemplated by the Participation Agreement that
Northwest Airlines Holding Corporation (formerly known as Northwest Airlines
Corporation), a Delaware corporation ("Old Northwest"), 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
(as defined in the Lease), pursuant to a Trust Indenture and Security Agreement
[NW 1997 C], dated as of September 25, 1997, 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, as of the date of this Guarantee, Newbridge Merger Corporation, a
wholly-owned subsidiary of the Guarantor, will merge with and into Old
Northwest, with Old Northwest as surviving corporation, in accordance with
Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined herein are
used herein as defined in the Lease;
<PAGE>
NOW, THEREFORE, in consideration of the foregoing 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 obliger 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 disaffirm with respect to the
Lessee of the Lease or 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 enforce ability (or lack thereof)
2
<PAGE>
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 in writing 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 in writing 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 collect ability 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 (as such
term is defined in the Trust Indenture), 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
3
<PAGE>
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 Partner 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 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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor may be
made by the Lessee; or
(b) 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
4
<PAGE>
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 (as such term is defined in the Trust Indenture).
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 not be enforced in
or by such courts. The Guarantor hereby generally consents to service of process
at Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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.
5
<PAGE>
8. Integration; Counterparts; Successors and Assigns: Headings. This
Guarantee (a) constitutes the entire agreement, and supercedes 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:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (612) 726-0665
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.
6
<PAGE>
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.
7
<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1997 C]
PARTIES
First Security Bank, National Association, in its individual capacity and as
Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
FINOVA Capital Corporation
<PAGE>
Exhibit 4(a)(15)
================================================================================
GUARANTEE
[NW 1997 D]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
================================================================================
<PAGE>
TABLE OF CONTENTS TO GUARANTEE
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 ............................................................ -7-
12. Severability ........................................................ -7-
13. GOVERNING LAW ....................................................... -7-
14. Enforcement Expenses ................................................ -7-
15. Termination ......................................................... -7-
16. No Guarantee of Secured Certificates ................................ -7-
<PAGE>
GUARANTEE
[NW 1997 D]
This GUARANTEE [NW 1997 D], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "GUARANTEE"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1997 D], dated as of September 25, 1997 (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 a
Participation Agreement [NW 1997 D], dated as of September 25, 1997 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among the Lessee, the Parties and certain other entities; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1997 D], dated as of September 25, 1997, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
<PAGE>
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
NOW THEREFORE, in consideration of the foregoing 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 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 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
-2-
<PAGE>
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
in writing 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 in writing
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 (as such
term is defined in the Trust Indenture), 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
-3-
<PAGE>
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 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:
-4-
<PAGE>
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
(b) 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 (as such term is defined in the Trust Indenture).
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
-5-
<PAGE>
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, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (612) 726-0665
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
-6-
<PAGE>
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 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 (included 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.
-7-
<PAGE>
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/ Douglas M. Steenland
--------------------------------------
Name: Douglas M. Steenland
Title:Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1997 D]
PARTIES
First Security Bank, National Association, in its individual capacity and as
Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
FINOVA Capital Corporation
<PAGE>
Exhibit 4(a)(16)
================================================================================
GUARANTEE
[NW 1997 E]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
================================================================================
<PAGE>
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. ...................................................... -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-
<PAGE>
GUARANTEE
[NW 1997 E]
This GUARANTEE [NW 1997 E], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1997 E], dated as of September 25, 1997 (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-RJ8SA 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 a
Participation Agreement [NW 1997 E], dated as of September 25, 1997 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among the Lessee, the Parties and certain other entities; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1997 E], dated as of September 25, 1997, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
<PAGE>
NOW, THEREFORE, in consideration of the foregoing 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 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 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.
-2-
<PAGE>
(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
in writing 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 in writing
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 (as such
term is defined in the Trust Indenture), 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.
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<PAGE>
(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 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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
(b) 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
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<PAGE>
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 (as such term is defined in the Trust Indenture).
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 not be enforced in
or by such courts. The Guarantor hereby generally consents to service of process
at Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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.
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<PAGE>
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:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President-Finance and Treasurer
Telecopy No.: (612) 726-0665
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.
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<PAGE>
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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<PAGE>
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/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1997 E]
PARTIES
First Security Bank, National Association, in its individual capacity and as
Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
FINOVA Capital Corporation
<PAGE>
Exhibit 4(a)(17)
================================================================================
GUARANTEE
[NW 1997 F]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
================================================================================
<PAGE>
TABLE OF CONTENTS TO GUARANTEE
Page
1. Guarantee .............................................................. 2
2. No Implied Third Party Beneficiaries ................................... 4
3. Waiver; No Setoff; 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 ................................................................ 6
10. No Waivers ............................................................. 6
11. Survival ............................................................... 6
12. Severability ........................................................... 6
13. GOVERNING LAW .......................................................... 6
14. Enforcement Expenses ................................................... 7
15. Termination ............................................................ 7
16. No Guarantee of Secured Certificates ................................... 7
<PAGE>
GUARANTEE
[NW 1997 F]
This GUARANTEE [NW 1997 F], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1997 F], dated as of September 25, 1997 (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 a
Participation Agreement [NW 1997 F], dated as of September 25, 1997 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among the Lessee, the Parties and certain other entities; and
WHEREAS, it was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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 (as defined in the Lease), pursuant to a Trust Indenture and
Security Agreement [NW 1997 F], dated as of September 25, 1997, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in the Lease;
<PAGE>
NOW, THEREFORE, in consideration for the foregoing 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 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 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
in writing 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
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<PAGE>
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 in writing
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 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 (as such term is
defined in the Trust Indenture), 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.
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<PAGE>
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 Setoff; 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, setoff, 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:
(a) while an Event of Default shall have occurred and be continuing,
in which case no such payment in respect of such a claim by the Guarantor
may be made by the Lessee; or
(b) 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
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<PAGE>
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 (as such term is defined in the
Trust Indenture).
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 not be enforced in
or by such courts. The Guarantor hereby generally consents to service of process
at Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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.
-5-
<PAGE>
9. Notices. All requests, notices or other communications hereunder
shall be in writing, addressed as follows:
If to the Guarantor:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President-Finance and Treasurer
Telecopy No.: (612) 726-0665
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 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.
-6-
<PAGE>
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.
-7-
<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1997 F]
PARTIES
First Security Bank, National Association, in its individual capacity and as
Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
FINOVA Capital Corporation
<PAGE>
Exhibit 4(a)(18)
================================================================================
GUARANTEE
[NW 1997 G]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
================================================================================
<PAGE>
TABLE OF CONTENTS TO GUARANTEE
Page
1. Guarantee ............................................................ -2-
2. No Implied Third Party Beneficiaries ................................. -4-
3. Waiver; No Setoff; 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 .......... -5-
9. Notices .............................................................. -6-
10. No Waivers ........................................................... -6-
11. Survival ............................................................. -6-
12. Severability ......................................................... -6-
13. GOVERNING LAW ........................................................ -7-
14. Enforcement Expenses ................................................. -7-
15. Termination .......................................................... -7-
16. No Guarantee of Secured Certificates ................................. -7-
i
<PAGE>
GUARANTEE
[NW 1997 G]
This GUARANTEE [NW 1997 G], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 Lease Agreement [NW 1997 G], dated as of September 25, 1997 (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 was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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
G], dated as of September 25, 1997, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger
<PAGE>
Agreement") among Old Northwest, the Guarantor and Newbridge Merger Corporation,
and thereafter Old Northwest shall be a wholly-owned subsidiary of the
Guarantor; 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 consideration for the foregoing 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 at 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
-2-
<PAGE>
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 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 in writing 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 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 in writing 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 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,
-3-
<PAGE>
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.
3. Waiver: No Setoff, 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 I 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-
<PAGE>
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 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, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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
-5-
<PAGE>
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:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President-Finance and Treasurer
Telecopy No.: (612) 726-0665
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
-6-
<PAGE>
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.
-7-
<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
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
<PAGE>
Exhibit 4(a)(19)
================================================================================
GUARANTEE
[NW 1997 H]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
================================================================================
<PAGE>
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. ..........................................................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 ..................................................................7
12. Severability ..............................................................7
13. GOVERNING LAW .............................................................7
14. Enforcement Expenses ......................................................7
15. Termination ...............................................................7
16. No Guarantee of Secured Certificates ......................................7
<PAGE>
GUARANTEE
[NW 1997 H]
This GUARANTEE [NW 1997 B], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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, on September 25, 1997, Northwest Airlines, Inc., 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 H], 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 amended and restated the Original Participation
Agreement in its entirety by entering into an Amended and Restated Participation
Agreement [NW 1997 H], dated as of December 29, 1997 (as amended, modified or
supplemented from time to time, the "Participation Agreement"); and
WHEREAS, the Lessee has entered into a Lease Agreement [NW 1997 H],
dated as of December 29, 1997 (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 was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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
H], dated as of September 25, 1997, as amended by the First Amendment thereto
dated as of December 29, 1997, 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
<PAGE>
WHEREAS, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; 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 consideration of the foregoing 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 1Participation 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
2
<PAGE>
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 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 in
writing 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 in writing
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
3
<PAGE>
(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.
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
4
<PAGE>
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 not be enforced in
or by such courts. The Guarantor hereby generally consents to service of process
at Cadwalader,
5
<PAGE>
Wickersham & Taft, 100 Maiden Lane, New York, New York 10038, 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:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (612) 726-0665
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.
6
<PAGE>
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.
7
<PAGE>
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/ Douglas M. Steenland
--------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1997 H]
PARTIES
First Security Bank, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
National City Leasing Corporation, Owner Participant
<PAGE>
Exhibit 4(a)(20)
================================================================================
GUARANTEE
[NW 1997 I]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
================================================================================
<PAGE>
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. ........................................................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
<PAGE>
GUARANTEE
[NW 1997 I]
This GUARANTEE [NW 1997 I], dated as of November 20, 1998 (as amended,
modified or supplemented from time to time, the or this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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, on September 25, 1997, Northwest Airlines, Inc., 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 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 February 3, 1998 (as amended, modified or
supplemented from time to time, the "Participation Agreement"); and
WHEREAS, the Lessee has entered into a Lease Agreement [NW 1997 I], dated
as of February 3, 1998 (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 was a condition precedent to the obligations of the Parties to
consummate the transactions contemplated by the Participation Agreement that
Northwest Airlines Holding Corporation (formerly known as Northwest Airlines
Corporation), a Delaware corporation ("Old Northwest"), 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
<PAGE>
Agreement [NW 1997 I], dated as of September 25, 1997, as amended by the First
Amendment thereto dated as of February 3, 1998, 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, as of the date of this Guarantee, Newbridge Merger Corporation, a
wholly-owned subsidiary of the Guarantor, will merge with and into Old
Northwest, with Old Northwest as surviving corporation, in accordance with
Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; 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 consideration of the foregoing 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 of 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 that Lessee fails to perform any
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<PAGE>
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 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 genuiness, 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 in
writing 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 in writing
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, operating 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 suite or proceed to obtain or assert a claim
for personal judgment against the Lessee for the
-3-
<PAGE>
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.
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
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<PAGE>
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 hereby irrevocably submits
itself to the non-exclusive jurisdiction of the United States District Court of
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 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,
Wickersham & Taft, 100 Maiden Lane, New York, New York 10038, Attention:
Managing Attorney, or such office of
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<PAGE>
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 constitutes the entire agreement, and supercedes all prior agreements
and understandings, both written and oral, among the Guarantor and the Parties,
with respect to the subject matter hereof, 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 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:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President)Finance and Treasurer
Telecopy No.: (612) 726-0665
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.
-6-
<PAGE>
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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<PAGE>
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/ Douglas S. Steenland
--------------------------------
Name: Douglas S. Steeland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
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
<PAGE>
Exhibit 4(a)(21)
================================================================================
GUARANTEE
[NW 1997 J]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
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 ................................................................7
12. Severability ............................................................7
13. GOVERNING LAW ...........................................................7
14. Enforcement Expenses ....................................................7
15. Termination .............................................................7
16. No Guarantee of Secured Certificates ....................................7
<PAGE>
GUARANTEE
[NW 1997 J]
This GUARANTEE [NW 1997 J], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, the or this "Guarantee"),
from NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent
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, on September 25, 1997, Northwest Airlines, Inc., 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 J], 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 amended and restated the Original Participation
Agreement in its entirety by entering into an Amended and Restated Participation
Agreement [NW 1997 J], dated as of March 18, 1998 (as amended, modified or
supplemented from time to time, the "Participation Agreement"); and
WHEREAS, the Lessee has entered into a Lease Agreement [NW 1997 J],
dated as of March 18, 1998 (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 was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
execute and deliver this Guarantee; and 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
J], dated as of September 25, 1997, as amended by the First Amendment thereto
dated as of March 18, 1998, between the Lessor and the Indenture
<PAGE>
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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; 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 consideration for the foregoing 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 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
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<PAGE>
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 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 in
writing 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 in writing
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
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<PAGE>
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.
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
-4-
<PAGE>
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 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
-5-
<PAGE>
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,
Wickersham & Taft, 100 Maiden Lane, New York, New York 10038, 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:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (612) 726-0665
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
-6-
<PAGE>
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.
-7-
<PAGE>
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/ Douglas M. Steenland
----------------------------------
Name: Douglas M. Steeland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1997 J]
PARTIES
First Security Bank, National Association,
in its individual capacity and as
Owner Trustee
State Street Bank and Trust Company, as Indenture
Trustee
National City Leasing Corporation, Owner Participant
<PAGE>
Exhibit 4(a)(22)
================================================================================
GUARANTEE
[NW 1997 K]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 146-RJ85A Aircraft
================================================================================
<PAGE>
TABLE OF CONTENTS TO GUARANTEE
Page
1. Guarantee ...............................................................2
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 ..............................................................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
<PAGE>
GUARANTEE
[NW 1997 K]
This GUARANTEE [NW 1997 K], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent 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 K], dated as of September 25, 1997 (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 has entered into a Lease Agreement [NW 1997
K], dated as of September 25, 1997 (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 was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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
K], dated as of September 25, 1997, 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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in Appendix A to the Participation Agreement;
-1-
<PAGE>
NOW, THEREFORE, in consideration of the foregoing 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
-2-
<PAGE>
(except that any such amendment or other modification in writing 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 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 in writing 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.
-3-
<PAGE>
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 I 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 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
-4-
<PAGE>
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, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
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:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (612) 726-0665
If to a Party:
to the address or telecopy number set forth in the
Participation Agreement
-5-
<PAGE>
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 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.
-6-
<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1997 K]
PARTIES
First Security Bank, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
<PAGE>
Exhibit 4(a)(23)
================================================================================
GUARANTEE
[NW 1997 L]
Dated as of November 20, 1998
from
NORTHWEST AIRLINES CORPORATION
One British Aerospace Avro 14-RJ85A Aircraft
================================================================================
<PAGE>
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 .........................................................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 ..............................................................7
11. Survival ................................................................7
12. Severability ............................................................7
13. GOVERNING LAW ...........................................................7
14. Enforcement Expenses ....................................................7
15. Termination .............................................................7
16. No Guarantee of Secured Certificates ....................................7
<PAGE>
GUARANTEE
[NW 1997 L]
This GUARANTEE [NW 1997 L], dated as of November 20, 1998 (as
amended, modified or supplemented from time to time, the or this "Guarantee"),
from NORTHWEST AIRLINES CORPORATION (formerly known as Newbridge Parent
Company), 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, on September 25, 1997, Northwest Airlines, Inc., a
Minnesota corporation (the "Lessees"), 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 L], 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 amended and restated the Original Participation
Agreement in its entirety by entering into an Amended and Restated Participation
Agreement [NW 1997 A], dated as of May 1, 1998 (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
L], dated as of May 1, 1998 (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 was a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that Northwest Airlines Holding Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation ("Old Northwest"),
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
A], dated as of September 25, 1997, as amended by the First Amendment thereto
dated as of May 1, 1998, between the Lessor and the Indenture Trustee (as so
-1-
<PAGE>
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, as of the date of this Guarantee, Newbridge Merger
Corporation, a wholly-owned subsidiary of the Guarantor, will merge with and
into Old Northwest, with Old Northwest as surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware and
pursuant to the Agreement and Plan of Merger, dated as of January 25, 1998 (as
amended and restated as of October 30, 1998, the "Merger Agreement") among Old
Northwest, the Guarantor and Newbridge Merger Corporation, and thereafter Old
Northwest shall be a wholly-owned subsidiary of the Guarantor; 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 consideration of the foregoing 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 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
-2-
<PAGE>
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 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 in
writing 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 in writing
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
-3-
<PAGE>
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.
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,
-4-
<PAGE>
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 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
-5-
<PAGE>
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, Wickersham& Taft, 100 Maiden Lane, New York, New York 10038,
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:
Northwest Airlines Corporation
for U.S. Mail: 5101 Northwest Drive (A4010)
St. Paul, Minnesota 55111-3034
for overnight courier:
2700 Lone Oak Parkway (A4010)
Eagan, Minnesota 55121
Attention: Senior Vice President--Finance and Treasurer
Telecopy No.: (612) 726-0665
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.
-6-
<PAGE>
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.
-7-
<PAGE>
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/ Douglas M. Steenland
------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
<PAGE>
SCHEDULE I
TO GUARANTEE
[NW 1997 L]
PARTIES
First Security Bank, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
Sumitomo Bank Capital Markets, Inc., Owner Participant
<PAGE>
Exhibit 4(b)(1)
SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of November 20, 1998 (this
"Supplemental Indenture" or "Guarantee"), among Northwest Airlines Corporation
(formerly known as Newbridge Parent Corporation), a Delaware corporation (the
"Guarantor"), Northwest Airlines Holdings Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation (the "Original
Guarantor"), Northwest Airlines, Inc., a Delaware corporation (together with its
successors and assigns, the "Company"), as Lessee, Wilmington Trust Company, not
in its individual capacity except as expressly provided therein but solely as
Owner Trustee (the "Owner Trustee") and State Street Bank and Trust Company of
Connecticut, National Association, as Indenture Trustee under the Indenture
referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Original Guarantor, the Owner Trustee and
the Indenture Trustee have heretofore executed and delivered the Class A Trust
Indenture, dated as of March 10, 1994 (as amended, supplemented, waived or
otherwise modified, the "Indenture");
WHEREAS, pursuant to the Indenture the Owner Trustee has issued its
Class A Notes (the "Securities");
WHEREAS, the Original Guarantor has guaranteed the Securities;
WHEREAS, as of the date of this Supplemental Indenture, Newbridge
Merger Corporation, a wholly owned subsidiary of the Guarantor, will merge with
and into the Original Guarantor, with the Original Guarantor as the surviving
corporation, in accordance with Section 251(g) of the General Corporation Law of
the State of Delaware and pursuant to the Agreement and Plan of Merger, dated as
of January 25, 1998 (as amended and restated as of October 30, 1998, the "Merger
Agreement") among the Original Guarantor, the Guarantor and Newbridge Merger
Corporation, and thereafter the Original Guarantor shall be a wholly owned
subsidiary of the Guarantor; and
WHEREAS, pursuant to Section 11.4 of the Indenture, the Indenture
Trustee and the Owner Trustee are authorized to execute and deliver this
Supplemental Indenture to amend the Indenture, without the consent of any Holder
of Securities; and
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Owner Trustee and the Indenture Trustee mutually covenant and
agree for the equal and ratable benefit of the holders of the Securities as
follows:
<PAGE>
2
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Guarantee, terms defined
in the Indenture or in the preamble or recitals hereto are used herein as
therein defined, except that the term "Holders" in this Guarantee shall refer to
the term "Holders" as defined in the Indenture and the Indenture Trustee acting
on behalf or for the benefit of such holders. The words "herein," "hereof" and
"hereby" and other words of similar import used in this Supplemental Indenture
refer to this Supplemental Indenture as a whole and not to any particular
section hereof.
ARTICLE II
Guarantee
SECTION 2.1 Guarantee. The Guarantor, as primary obligor and not as
surety, hereby unconditionally and irrevocably guarantees to Lessor, the due,
punctual and full payment by Lessee of all amounts of Interim Rent, Basic Rent,
Supplemental Rent, Stipulated Loss Value, Fair Market Sales Value and all other
amounts (including, without limitation, amounts payable as damages in case of
default) to be paid by Lessee pursuant to the Lease, whether such obligations
now exist or arise hereafter, as and when the same shall become due and payable
in accordance with the terms thereof (such obligations being hereinafter called
the "Obligations"). The Guarantor further agrees to pay Lessor on demand any and
all costs and expenses (including reasonable fees and disbursements of counsel)
that may be paid or incurred by Lessor in collecting any Obligations or in
preserving or enforcing any rights under this Guarantee or under the
Obligations.
This Guarantee is a guarantee of payment, performance and compliance
and not of collectibility, is in no way conditioned or contingent upon any
attempt to collect from or enforce performance or compliance by Lessee or the
Original Guarantor, or upon any other event, contingency or circumstance
whatsoever, and shall be binding upon and against the Guarantor without regard
to the validity or enforceability of the Lease.
If for any reason whatsoever Lessee shall fail or be unable duly,
punctually and fully to pay any of the Obligations as and when the same shall
become due and payable or to perform or comply with any of the Obligations, the
Guarantor will immediately pay or cause to be paid such Obligations to the
Person or Persons entitled to receive the same (according to their respective
interests) under the terms of the Lease, or perform or comply with any such
Obligation or cause the same to be performed or complied with, together with
interest on any amount due and owing from Lessee at the rate provided for by the
Lease from the date the same shall have become due and payable to the date of
payment.
SECTION 2.2 Guarantor's Obligations Unconditional. The covenants and
agreements of the Guarantor set forth herein shall be primary obligations of the
Guarantor, and such obligations shall be continuing, absolute and unconditional,
shall not be subject to any
<PAGE>
3
counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension,
deferment, reduction or defense (other than full and strict compliance by the
Guarantor with its obligations hereunder), whether based upon any claim that
Lessee or the Guarantor or any other Person may have against Lessor or any other
Person or otherwise, and shall remain in full force and effect without regard
to, and shall not, to the fullest extent permitted by applicable laws, be
released, discharged or in any way affected by, any circumstance or condition
whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or
notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or
renewal to or other change in the Obligations, the Lease or any other
Operative Document or any of the agreements referred to in any thereof, or
any other instrument or agreement applicable to any Operative Document or
any of the parties to such agreements, or to the Aircraft, or any
assignment, mortgage or transfer thereof or of any interest therein, or
any furnishing or acceptance of additional security for, guarantee of, or
right of offset with respect to, any of the Obligations; or the failure or
release of any security or the failure of Lessor to perfect or insure any
interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor
to conform or comply with any term of any instrument or agreement referred
to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release
or other action or inaction under or in respect of any instrument,
agreement, guarantee, right of offset or security referred to in clause
(a) above or any obligation or liability of Lessee or Lessor, or any
exercise or nonexercise by Lessor of any right, remedy, power or privilege
under or in respect of any such instrument, agreement, guarantee, right of
offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect
to Lessee, Lessor or any other Person or any of their respective
properties or creditors, or any action taken by any trustee, receiver,
other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person
under the Lease or any other Operative Document, the Obligations, any
collateral security for the Obligations or any other guarantee of the
Obligations or any reductions, limitation, impairment, discharge,
termination, cancellation, frustration, irregularity, invalidity or
unenforceability, in whole or in part, of any of the foregoing, the
obligations under the Lease or any other agreement, instrument, guarantee
or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications,
condition, design, operation or fitness for use of or any damage to or
loss or destruction of, or any interruption or cessation in the use of the
Aircraft or any part thereof by Lessee or any other Person for any reason
whatsoever (including, without limitation, any governmental prohibition or
restriction, condemnation, requisition, seizure or any other act on the
part
<PAGE>
4
of any governmental or military authority, or any act of God or of the
public enemy) regardless of the duration thereof (even though such
duration would otherwise constitute a frustration of a lease), whether or
not resulting from accident and whether or not without fault on the part
of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or
consolidation of the Guarantor into or with any other corporation or
partnership or any sale, lease or transfer of any of the assets of Lessee
or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar
or dissimilar to the foregoing and any other circumstance that might
otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or that might otherwise limit
recourse against the Guarantor.
The obligations of the Guarantor, set forth herein constitute the
full recourse obligations of the Guarantor enforceable against it to the full
extent of all its assets and properties, notwithstanding any provision in the
Lease or any other agreement limiting the liability of Lessor or any other
Person.
Nothing herein shall prohibit Lessor from exercising its rights
against the Guarantor or any other Person simultaneously, jointly or severally.
The Guarantor shall be bound by each and every ruling, order and judgment
obtained by Lessor in respect of any of the obligations guaranteed hereunder
whether or not the Guarantor is a party to the action or proceeding in which
such ruling, order or judgment is issued or rendered.
SECTION 2.3 Limitation on Liability. Any term or provision of this
Guarantee to the contrary notwithstanding, the maximum aggregate amount
guarantied hereunder by the Guarantor shall not exceed the maximum amount that
can be hereby guarantied without rendering this Guarantee, as it relates to such
Guarantor, voidable under applicable law, including without limitation
applicable law relating to fraudulent conveyance or fraudulent transfer or
affecting the rights or remedies of creditors generally.
ARTICLE III
Miscellaneous
SECTION 3.1 Governing Law. This Agreement shall be governed by the
laws of the State of New York.
SECTION 3.2 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
<PAGE>
5
SECTION 3.3 Entire Agreement. This Supplemental Indenture is
intended by the parties to be a final expression of their agreement in respect
of the subject matter contained herein and, together with the Indenture,
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
SECTION 3.4 Ratification of Indenture; Supplemental Indentures Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Indenture Trustee makes no representation or warranty as to the validity or
sufficiency of this Supplemental Indenture.
SECTION 3.5 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.6 Headings. The headings of the Articles and the Sections
in this Supplemental Indenture are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
<PAGE>
6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
NORTHWEST AIRLINES CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
Address: 2700 Lone Oak Parkway
Eagan, MN 55121
NORTHWEST AIRLINES, INC., as Lessee
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
NORTHWEST AIRLINES HOLDINGS CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executve Vice President, General
Counsel and Secretary
WILMINGTON TRUST COMPANY, as Owner
Trustee
By:
/s/ Charisse L. Rodgers
----------------------------------------
Name: Charisse L. Rodgers
Title: Senior Financial Services Officer
<PAGE>
7
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Indenture Trustee
By:
/s/ Donald E. Smith
----------------------------------------
Name: Donald E. Smith
Title: Vice President
<PAGE>
Exhibit 4(b)(2)
SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of November 20, 1998 (this
"Supplemental Indenture" or "Guarantee"), among Northwest Airlines Corporation
(formerly known as Newbridge Parent Corporation), a Delaware corporation (the
"Guarantor"), Northwest Airlines Holdings Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation (the "Original
Guarantor"), Northwest Airlines, Inc., a Delaware corporation (together with its
successors and assigns, the "Company"), as Lessee, Wilmington Trust Company, not
in its individual capacity except as expressly provided therein but solely as
Owner Trustee (the "Owner Trustee") and State Street Bank and Trust Company of
Connecticut, National Association, as Indenture Trustee under the Indenture
referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Original Guarantor, the Owner Trustee and
the Indenture Trustee have heretofore executed and delivered the Class B Trust
Indenture, dated as of March 10, 1994 (as amended, supplemented, waived or
otherwise modified, the "Indenture");
WHEREAS, pursuant to the Indenture the Owner Trustee has issued its
Class B Notes (the "Securities");
WHEREAS, the Original Guarantor has guaranteed the Securities;
WHEREAS, as of the date of this Supplemental Indenture, Newbridge
Merger Corporation, a wholly owned subsidiary of the Guarantor, will merge with
and into the Original Guarantor, with the Original Guarantor as the surviving
corporation, in accordance with Section 251(g) of the General Corporation Law of
the State of Delaware and pursuant to the Agreement and Plan of Merger, dated as
of January 25, 1998 (as amended and restated as of October 30, 1998, the "Merger
Agreement") among the Original Guarantor, the Guarantor and Newbridge Merger
Corporation, and thereafter the Original Guarantor shall be a wholly owned
subsidiary of the Guarantor; and
WHEREAS, pursuant to Section 11.4 of the Indenture, the Indenture
Trustee and the Owner Trustee are authorized to execute and deliver this
Supplemental Indenture to amend the Indenture, without the consent of any Holder
of Securities; and
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Owner Trustee and the Indenture Trustee mutually covenant and
agree for the equal and ratable benefit of the holders of the Securities as
follows:
<PAGE>
2
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Guarantee, terms defined
in the Indenture or in the preamble or recitals hereto are used herein as
therein defined, except that the term "Holders" in this Guarantee shall refer to
the term "Holders" as defined in the Indenture and the Indenture Trustee acting
on behalf or for the benefit of such holders. The words "herein," "hereof" and
"hereby" and other words of similar import used in this Supplemental Indenture
refer to this Supplemental Indenture as a whole and not to any particular
section hereof.
ARTICLE II
Guarantee
SECTION 2.1 Guarantee. The Guarantor, as primary obligor and not as
surety, hereby unconditionally and irrevocably guarantees to Lessor, the due,
punctual and full payment by Lessee of all amounts of Interim Rent, Basic Rent,
Supplemental Rent, Stipulated Loss Value, Fair Market Sales Value and all other
amounts (including, without limitation, amounts payable as damages in case of
default) to be paid by Lessee pursuant to the Lease, whether such obligations
now exist or arise hereafter, as and when the same shall become due and payable
in accordance with the terms thereof (such obligations being hereinafter called
the "Obligations"). The Guarantor further agrees to pay Lessor on demand any and
all costs and expenses (including reasonable fees and disbursements of counsel)
that may be paid or incurred by Lessor in collecting any Obligations or in
preserving or enforcing any rights under this Guarantee or under the
Obligations.
This Guarantee is a guarantee of payment, performance and compliance
and not of collectibility, is in no way conditioned or contingent upon any
attempt to collect from or enforce performance or compliance by Lessee or the
Original Guarantor, or upon any other event, contingency or circumstance
whatsoever, and shall be binding upon and against the Guarantor without regard
to the validity or enforceability of the Lease.
If for any reason whatsoever Lessee shall fail or be unable duly,
punctually and fully to pay any of the Obligations as and when the same shall
become due and payable or to perform or comply with any of the Obligations, the
Guarantor will immediately pay or cause to be paid such Obligations to the
Person or Persons entitled to receive the same (according to their respective
interests) under the terms of the Lease, or perform or comply with any such
Obligation or cause the same to be performed or complied with, together with
interest on any amount due and owing from Lessee at the rate provided for by the
Lease from the date the same shall have become due and payable to the date of
payment.
SECTION 2.2 Guarantor's Obligations Unconditional. The covenants and
agreements of the Guarantor set forth herein shall be primary obligations of the
Guarantor, and such obligations shall be continuing, absolute and unconditional,
shall not be subject to any
<PAGE>
3
counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension,
deferment, reduction or defense (other than full and strict compliance by the
Guarantor with its obligations hereunder), whether based upon any claim that
Lessee or the Guarantor or any other Person may have against Lessor or any other
Person or otherwise, and shall remain in full force and effect without regard
to, and shall not, to the fullest extent permitted by applicable laws, be
released, discharged or in any way affected by, any circumstance or condition
whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or
notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or
renewal to or other change in the Obligations, the Lease or any other
Operative Document or any of the agreements referred to in any thereof, or
any other instrument or agreement applicable to any Operative Document or
any of the parties to such agreements, or to the Aircraft, or any
assignment, mortgage or transfer thereof or of any interest therein, or
any furnishing or acceptance of additional security for, guarantee of, or
right of offset with respect to, any of the Obligations; or the failure or
release of any security or the failure of Lessor to perfect or insure any
interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor
to conform or comply with any term of any instrument or agreement referred
to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release
or other action or inaction under or in respect of any instrument,
agreement, guarantee, right of offset or security referred to in clause
(a) above or any obligation or liability of Lessee or Lessor, or any
exercise or nonexercise by Lessor of any right, remedy, power or privilege
under or in respect of any such instrument, agreement, guarantee, right of
offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect
to Lessee, Lessor or any other Person or any of their respective
properties or creditors, or any action taken by any trustee, receiver,
other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person
under the Lease or any other Operative Document, the Obligations, any
collateral security for the Obligations or any other guarantee of the
Obligations or any reductions, limitation, impairment, discharge,
termination, cancellation, frustration, irregularity, invalidity or
unenforceability, in whole or in part, of any of the foregoing, the
obligations under the Lease or any other agreement, instrument, guarantee
or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications,
condition, design, operation or fitness for use of or any damage to or
loss or destruction of, or any interruption or cessation in the use of the
Aircraft or any part thereof by Lessee or any other Person for any reason
whatsoever (including, without limitation, any governmental prohibition or
restriction, condemnation, requisition, seizure or any other act on the
part
<PAGE>
4
of any governmental or military authority, or any act of God or of the
public enemy) regardless of the duration thereof (even though such
duration would otherwise constitute a frustration of a lease), whether or
not resulting from accident and whether or not without fault on the part
of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or
consolidation of the Guarantor into or with any other corporation or
partnership or any sale, lease or transfer of any of the assets of Lessee
or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar
or dissimilar to the foregoing and any other circumstance that might
otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or that might otherwise limit
recourse against the Guarantor.
The obligations of the Guarantor, set forth herein constitute the
full recourse obligations of the Guarantor enforceable against it to the full
extent of all its assets and properties, notwithstanding any provision in the
Lease or any other agreement limiting the liability of Lessor or any other
Person.
Nothing herein shall prohibit Lessor from exercising its rights
against the Guarantor or any other Person simultaneously, jointly or severally.
The Guarantor shall be bound by each and every ruling, order and judgment
obtained by Lessor in respect of any of the obligations guaranteed hereunder
whether or not the Guarantor is a party to the action or proceeding in which
such ruling, order or judgment is issued or rendered.
SECTION 2.3 Limitation on Liability. Any term or provision of this
Guarantee to the contrary notwithstanding, the maximum aggregate amount
guarantied hereunder by the Guarantor shall not exceed the maximum amount that
can be hereby guarantied without rendering this Guarantee, as it relates to such
Guarantor, voidable under applicable law, including without limitation
applicable law relating to fraudulent conveyance or fraudulent transfer or
affecting the rights or remedies of creditors generally.
ARTICLE III
Miscellaneous
SECTION 3.1 Governing Law. This Agreement shall be governed by the
laws of the State of New York.
SECTION 3.2 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
<PAGE>
5
SECTION 3.3 Entire Agreement. This Supplemental Indenture is
intended by the parties to be a final expression of their agreement in respect
of the subject matter contained herein and, together with the Indenture,
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
SECTION 3.4 Ratification of Indenture; Supplemental Indentures Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Indenture Trustee makes no representation or warranty as to the validity or
sufficiency of this Supplemental Indenture.
SECTION 3.5 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.6 Headings. The headings of the Articles and the Sections
in this Supplemental Indenture are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
<PAGE>
6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
NORTHWEST AIRLINES CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
Address: 2700 Lone Oak Parkway
Eagan, MN 55121
NORTHWEST AIRLINES, INC., as Lessee
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
NORTHWEST AIRLINES HOLDINGS CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executve Vice President, General
Counsel and Secretary
WILMINGTON TRUST COMPANY, as Owner
Trustee
By:
/s/ Charisse L. Rodgers
----------------------------------------
Name: Charisse L. Rodgers
Title: Senior Financial Services Officer
<PAGE>
7
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Indenture Trustee
By:
/s/ Donald E. Smith
----------------------------------------
Name: Donald E. Smith
Title: Vice President
<PAGE>
Exhibit 4(b)(3)
SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of November 20, 1998 (this
"Supplemental Indenture" or "Guarantee"), among Northwest Airlines Corporation
(formerly known as Newbridge Parent Corporation), a Delaware corporation (the
"Guarantor"), Northwest Airlines Holdings Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation (the "Original
Guarantor"), Northwest Airlines, Inc., a Delaware corporation (together with its
successors and assigns, the "Company"), as Lessee, Wilmington Trust Company, not
in its individual capacity except as expressly provided therein but solely as
Owner Trustee (the "Owner Trustee") and State Street Bank and Trust Company, as
Indenture Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Original Guarantor, the Owner Trustee and
the Indenture Trustee have heretofore executed and delivered the Class A Trust
Indenture, dated as of December 21, 1994 (as amended, supplemented, waived or
otherwise modified, the "Indenture");
WHEREAS, pursuant to the Indenture the Owner Trustee has issued its
Class A Notes (the "Securities");
WHEREAS, the Original Guarantor has guaranteed the Securities;
WHEREAS, as of the date of this Supplemental Indenture, Newbridge
Merger Corporation, a wholly owned subsidiary of the Guarantor, will merge with
and into the Original Guarantor, with the Original Guarantor as the surviving
corporation, in accordance with Section 251(g) of the General Corporation Law of
the State of Delaware and pursuant to the Agreement and Plan of Merger, dated as
of January 25, 1998 (as amended and restated as of October 30, 1998, the "Merger
Agreement") among the Original Guarantor, the Guarantor and Newbridge Merger
Corporation, and thereafter the Original Guarantor shall be a wholly owned
subsidiary of the Guarantor; and
WHEREAS, pursuant to Section 11.4 of the Indenture, the Indenture
Trustee and the Owner Trustee are authorized to execute and deliver this
Supplemental Indenture to amend the Indenture, without the consent of any Holder
of Securities; and
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Owner Trustee and the Indenture Trustee mutually covenant and
agree for the equal and ratable benefit of the holders of the Securities as
follows:
<PAGE>
2
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Guarantee, terms defined
in the Indenture or in the preamble or recitals hereto are used herein as
therein defined, except that the term "Holders" in this Guarantee shall refer to
the term "Holders" as defined in the Indenture and the Indenture Trustee acting
on behalf or for the benefit of such holders. The words "herein," "hereof" and
"hereby" and other words of similar import used in this Supplemental Indenture
refer to this Supplemental Indenture as a whole and not to any particular
section hereof.
ARTICLE II
Guarantee
SECTION 2.1 Guarantee. The Guarantor, as primary obligor and not as
surety, hereby unconditionally and irrevocably guarantees to Lessor, the due,
punctual and full payment by Lessee of all amounts of Basic Rent, Supplemental
Rent, Stipulated Loss Value, Fair Market Sales Value and all other amounts
(including, without limitation, amounts payable as damages in case of default)
to be paid by Lessee pursuant to the Lease, whether such obligations now exist
or arise hereafter, as and when the same shall become due and payable in
accordance with the terms thereof (such obligations being hereinafter called the
"Obligations"). The Guarantor further agrees to pay Lessor on demand any and all
costs and expenses (including reasonable fees and disbursements of counsel) that
may be paid or incurred by Lessor in collecting any Obligations or in preserving
or enforcing any rights under this Guarantee or under the Obligations.
This Guarantee is a guarantee of payment, performance and compliance
and not of collectibility, is in no way conditioned or contingent upon any
attempt to collect from or enforce performance or compliance by Lessee or the
Original Guarantor, or upon any other event, contingency or circumstance
whatsoever, and shall be binding upon and against the Guarantor without regard
to the validity or enforceability of the Lease.
If for any reason whatsoever Lessee shall fail or be unable duly,
punctually and fully to pay any of the Obligations as and when the same shall
become due and payable or to perform or comply with any of the Obligations, the
Guarantor will immediately pay or cause to be paid such Obligations to the
Person or Persons entitled to receive the same (according to their respective
interests) under the terms of the Lease, or perform or comply with any such
Obligation or cause the same to be performed or complied with, together with
interest on any amount due and owing from Lessee at the rate provided for by the
Lease from the date the same shall have become due and payable to the date of
payment.
SECTION 2.2 Guarantor's Obligations Unconditional. The covenants and
agreements of the Guarantor set forth herein shall be primary obligations of the
Guarantor, and such obligations shall be continuing, absolute and unconditional,
shall not be subject to any counterclaim, setoff, deduction, diminution,
abatement, recoupment, suspension, deferment,
<PAGE>
3
reduction or defense (other than full and strict compliance by the Guarantor
with its obligations hereunder), whether based upon any claim that Lessee or the
Guarantor or any other Person may have against Lessor or any other Person or
otherwise, and shall remain in full force and effect without regard to, and
shall not, to the fullest extent permitted by applicable laws, be released,
discharged or in any way affected by, any circumstance or condition whatsoever
(whether or not the Guarantor or Lessee shall have any knowledge or notice
thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or
renewal to or other change in the Obligations, the Lease or any other
Operative Document or any of the agreements referred to in any thereof, or
any other instrument or agreement applicable to any Operative Document or
any of the parties to such agreements, or to the Aircraft, or any
assignment, mortgage or transfer thereof or of any interest therein, or
any furnishing or acceptance of additional security for, guarantee of, or
right of offset with respect to, any of the Obligations; or the failure or
release of any security or the failure of Lessor to perfect or insure any
interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor
to conform or comply with any term of any instrument or agreement referred
to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release
or other action or inaction under or in respect of any instrument,
agreement, guarantee, right of offset or security referred to in clause
(a) above or any obligation or liability of Lessee or Lessor, or any
exercise or nonexercise by Lessor of any right, remedy, power or privilege
under or in respect of any such instrument, agreement, guarantee, right of
offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect
to Lessee, Lessor or any other Person or any of their respective
properties or creditors, or any action taken by any trustee, receiver,
other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person
under the Lease or any other Operative Document, the Obligations, any
collateral security for the Obligations or any other guarantee of the
Obligations or any reductions, limitation, impairment, discharge,
termination, cancellation, frustration, irregularity, invalidity or
unenforceability, in whole or in part, of any of the foregoing, the
obligations under the Lease or any other agreement, instrument, guarantee
or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications,
condition, design, operation or fitness for use of or any damage to or
loss or destruction of, or any interruption or cessation in the use of the
Aircraft or any part thereof by Lessee or any other Person for any reason
whatsoever (including, without limitation, any governmental prohibition or
restriction, condemnation, requisition, seizure or any other act on the
part of any governmental or military authority, or any act of God or of
the public enemy)
<PAGE>
4
regardless of the duration thereof (even though such duration would
otherwise constitute a frustration of a lease), whether or not resulting
from accident and whether or not without fault on the part of Lessee or
any other Person;
(g) any merger or liquidation of Lessee or any merger or
consolidation of the Guarantor into or with any other corporation or
partnership or any sale, lease or transfer of any of the assets of Lessee
or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar
or dissimilar to the foregoing and any other circumstance that might
otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or that might otherwise limit
recourse against the Guarantor.
The obligations of the Guarantor, set forth herein constitute the
full recourse obligations of the Guarantor enforceable against it to the full
extent of all its assets and properties, notwithstanding any provision in the
Lease or any other agreement limiting the liability of Lessor or any other
Person.
Nothing herein shall prohibit Lessor from exercising its rights
against the Guarantor or any other Person simultaneously, jointly or severally.
The Guarantor shall be bound by each and every ruling, order and judgment
obtained by Lessor in respect of any of the obligations guaranteed hereunder
whether or not the Guarantor is a party to the action or proceeding in which
such ruling, order or judgment is issued or rendered.
SECTION 2.3 Limitation on Liability. Any term or provision of this
Guarantee to the contrary notwithstanding, the maximum aggregate amount
guarantied hereunder by the Guarantor shall not exceed the maximum amount that
can be hereby guarantied without rendering this Guarantee, as it relates to such
Guarantor, voidable under applicable law, including without limitation
applicable law relating to fraudulent conveyance or fraudulent transfer or
affecting the rights or remedies of creditors generally.
ARTICLE III
Miscellaneous
SECTION 3.1 Governing Law. This Agreement shall be governed by the
laws of the State of New York.
SECTION 3.2 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
<PAGE>
5
SECTION 3.3 Entire Agreement. This Supplemental Indenture is
intended by the parties to be a final expression of their agreement in respect
of the subject matter contained herein and, together with the Indenture,
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
SECTION 3.4 Ratification of Indenture; Supplemental Indentures Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Indenture Trustee makes no representation or warranty as to the validity or
sufficiency of this Supplemental Indenture.
SECTION 3.5 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.6 Headings. The headings of the Articles and the Sections
in this Supplemental Indenture are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
<PAGE>
6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
NORTHWEST AIRLINES CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
Address: 2700 Lone Oak Parkway
Eagan, MN 55121
NORTHWEST AIRLINES, INC., as Lessee
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
NORTHWEST AIRLINES HOLDINGS CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executve Vice President, General
Counsel and Secretary
WILMINGTON TRUST COMPANY, as Owner
Trustee
By:
/s/ Charisse L. Rodgers
----------------------------------------
Name: Charisse L. Rodgers
Title: Senior Financial Services Officer
<PAGE>
7
STATE STREET BANK AND TRUST
COMPANY, as Indenture Trustee
By:
/s/ Donald E. Smith
----------------------------------------
Name: Donald E. Smith
Title: Vice President
<PAGE>
Exhibit 4(b)(4)
SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of November 20, 1998 (this
"Supplemental Indenture" or "Guarantee"), among Northwest Airlines Corporation
(formerly known as Newbridge Parent Corporation), a Delaware corporation (the
"Guarantor"), Northwest Airlines Holdings Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation (the "Original
Guarantor"), Northwest Airlines, Inc., a Delaware corporation (together with its
successors and assigns, the "Company"), as Lessee, Wilmington Trust Company, not
in its individual capacity except as expressly provided therein but solely as
Owner Trustee (the "Owner Trustee") and State Street Bank and Trust Company, as
Indenture Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Original Guarantor, the Owner Trustee and
the Indenture Trustee have heretofore executed and delivered the Class B Trust
Indenture, dated as of December 21, 1994 (as amended, supplemented, waived or
otherwise modified, the "Indenture");
WHEREAS, pursuant to the Indenture the Owner Trustee has issued its
Class B Notes (the "Securities");
WHEREAS, the Original Guarantor has guaranteed the Securities;
WHEREAS, as of the date of this Supplemental Indenture, Newbridge
Merger Corporation, a wholly owned subsidiary of the Guarantor, will merge with
and into the Original Guarantor, with the Original Guarantor as the surviving
corporation, in accordance with Section 251(g) of the General Corporation Law of
the State of Delaware and pursuant to the Agreement and Plan of Merger, dated as
of January 25, 1998 (as amended and restated as of October 30, 1998, the "Merger
Agreement") among the Original Guarantor, the Guarantor and Newbridge Merger
Corporation, and thereafter the Original Guarantor shall be a wholly owned
subsidiary of the Guarantor; and
WHEREAS, pursuant to Section 11.4 of the Indenture, the Indenture
Trustee and the Owner Trustee are authorized to execute and deliver this
Supplemental Indenture to amend the Indenture, without the consent of any Holder
of Securities; and
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Owner Trustee and the Indenture Trustee mutually covenant and
agree for the equal and ratable benefit of the holders of the Securities as
follows:
<PAGE>
2
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Guarantee, terms defined
in the Indenture or in the preamble or recitals hereto are used herein as
therein defined, except that the term "Holders" in this Guarantee shall refer to
the term "Holders" as defined in the Indenture and the Indenture Trustee acting
on behalf or for the benefit of such holders. The words "herein," "hereof" and
"hereby" and other words of similar import used in this Supplemental Indenture
refer to this Supplemental Indenture as a whole and not to any particular
section hereof.
ARTICLE II
Guarantee
SECTION 2.1 Guarantee. The Guarantor, as primary obligor and not as
surety, hereby unconditionally and irrevocably guarantees to Lessor, the due,
punctual and full payment by Lessee of all amounts of Basic Rent, Supplemental
Rent, Stipulated Loss Value, Fair Market Sales Value and all other amounts
(including, without limitation, amounts payable as damages in case of default)
to be paid by Lessee pursuant to the Lease, whether such obligations now exist
or arise hereafter, as and when the same shall become due and payable in
accordance with the terms thereof (such obligations being hereinafter called the
"Obligations"). The Guarantor further agrees to pay Lessor on demand any and all
costs and expenses (including reasonable fees and disbursements of counsel) that
may be paid or incurred by Lessor in collecting any Obligations or in preserving
or enforcing any rights under this Guarantee or under the Obligations.
This Guarantee is a guarantee of payment, performance and compliance
and not of collectibility, is in no way conditioned or contingent upon any
attempt to collect from or enforce performance or compliance by Lessee or the
Original Guarantor, or upon any other event, contingency or circumstance
whatsoever, and shall be binding upon and against the Guarantor without regard
to the validity or enforceability of the Lease.
If for any reason whatsoever Lessee shall fail or be unable duly,
punctually and fully to pay any of the Obligations as and when the same shall
become due and payable or to perform or comply with any of the Obligations, the
Guarantor will immediately pay or cause to be paid such Obligations to the
Person or Persons entitled to receive the same (according to their respective
interests) under the terms of the Lease, or perform or comply with any such
Obligation or cause the same to be performed or complied with, together with
interest on any amount due and owing from Lessee at the rate provided for by the
Lease from the date the same shall have become due and payable to the date of
payment.
SECTION 2.2 Guarantor's Obligations Unconditional. The covenants and
agreements of the Guarantor set forth herein shall be primary obligations of the
Guarantor, and such obligations shall be continuing, absolute and unconditional,
shall not be subject to any counterclaim, setoff, deduction, diminution,
abatement, recoupment, suspension, deferment,
<PAGE>
3
reduction or defense (other than full and strict compliance by the Guarantor
with its obligations hereunder), whether based upon any claim that Lessee or the
Guarantor or any other Person may have against Lessor or any other Person or
otherwise, and shall remain in full force and effect without regard to, and
shall not, to the fullest extent permitted by applicable laws, be released,
discharged or in any way affected by, any circumstance or condition whatsoever
(whether or not the Guarantor or Lessee shall have any knowledge or notice
thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or
renewal to or other change in the Obligations, the Lease or any other
Operative Document or any of the agreements referred to in any thereof, or
any other instrument or agreement applicable to any Operative Document or
any of the parties to such agreements, or to the Aircraft, or any
assignment, mortgage or transfer thereof or of any interest therein, or
any furnishing or acceptance of additional security for, guarantee of, or
right of offset with respect to, any of the Obligations; or the failure or
release of any security or the failure of Lessor to perfect or insure any
interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor
to conform or comply with any term of any instrument or agreement referred
to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release
or other action or inaction under or in respect of any instrument,
agreement, guarantee, right of offset or security referred to in clause
(a) above or any obligation or liability of Lessee or Lessor, or any
exercise or nonexercise by Lessor of any right, remedy, power or privilege
under or in respect of any such instrument, agreement, guarantee, right of
offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect
to Lessee, Lessor or any other Person or any of their respective
properties or creditors, or any action taken by any trustee, receiver,
other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person
under the Lease or any other Operative Document, the Obligations, any
collateral security for the Obligations or any other guarantee of the
Obligations or any reductions, limitation, impairment, discharge,
termination, cancellation, frustration, irregularity, invalidity or
unenforceability, in whole or in part, of any of the foregoing, the
obligations under the Lease or any other agreement, instrument, guarantee
or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications,
condition, design, operation or fitness for use of or any damage to or
loss or destruction of, or any interruption or cessation in the use of the
Aircraft or any part thereof by Lessee or any other Person for any reason
whatsoever (including, without limitation, any governmental prohibition or
restriction, condemnation, requisition, seizure or any other act on the
part of any governmental or military authority, or any act of God or of
the public enemy)
<PAGE>
4
regardless of the duration thereof (even though such duration would
otherwise constitute a frustration of a lease), whether or not resulting
from accident and whether or not without fault on the part of Lessee or
any other Person;
(g) any merger or liquidation of Lessee or any merger or
consolidation of the Guarantor into or with any other corporation or
partnership or any sale, lease or transfer of any of the assets of Lessee
or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar
or dissimilar to the foregoing and any other circumstance that might
otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or that might otherwise limit
recourse against the Guarantor.
The obligations of the Guarantor, set forth herein constitute the
full recourse obligations of the Guarantor enforceable against it to the full
extent of all its assets and properties, notwithstanding any provision in the
Lease or any other agreement limiting the liability of Lessor or any other
Person.
Nothing herein shall prohibit Lessor from exercising its rights
against the Guarantor or any other Person simultaneously, jointly or severally.
The Guarantor shall be bound by each and every ruling, order and judgment
obtained by Lessor in respect of any of the obligations guaranteed hereunder
whether or not the Guarantor is a party to the action or proceeding in which
such ruling, order or judgment is issued or rendered.
SECTION 2.3 Limitation on Liability. Any term or provision of this
Guarantee to the contrary notwithstanding, the maximum aggregate amount
guarantied hereunder by the Guarantor shall not exceed the maximum amount that
can be hereby guarantied without rendering this Guarantee, as it relates to such
Guarantor, voidable under applicable law, including without limitation
applicable law relating to fraudulent conveyance or fraudulent transfer or
affecting the rights or remedies of creditors generally.
ARTICLE III
Miscellaneous
SECTION 3.1 Governing Law. This Agreement shall be governed by the
laws of the State of New York.
SECTION 3.2 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
<PAGE>
5
SECTION 3.3 Entire Agreement. This Supplemental Indenture is
intended by the parties to be a final expression of their agreement in respect
of the subject matter contained herein and, together with the Indenture,
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
SECTION 3.4 Ratification of Indenture; Supplemental Indentures Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Indenture Trustee makes no representation or warranty as to the validity or
sufficiency of this Supplemental Indenture.
SECTION 3.5 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.6 Headings. The headings of the Articles and the Sections
in this Supplemental Indenture are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
<PAGE>
6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
NORTHWEST AIRLINES CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
Address: 2700 Lone Oak Parkway
Eagan, MN 55121
NORTHWEST AIRLINES, INC., as Lessee
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
NORTHWEST AIRLINES HOLDINGS CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executve Vice President, General
Counsel and Secretary
WILMINGTON TRUST COMPANY, as Owner
Trustee
By:
/s/ Charisse L. Rodgers
----------------------------------------
Name: Charisse L. Rodgers
Title: Senior Financial Services Officer
<PAGE>
7
STATE STREET BANK AND TRUST
COMPANY, as Indenture Trustee
By:
/s/ Donald E. Smith
----------------------------------------
Name: Donald E. Smith
Title: Vice President
<PAGE>
Exhibit 4(b)(5)
SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of November 20, 1998 (this
"Supplemental Indenture" or "Guarantee"), among Northwest Airlines Corporation
(formerly known as Newbridge Parent Corporation), a Delaware corporation (the
"Guarantor"), Northwest Airlines Holdings Corporation (formerly known as
Northwest Airlines Corporation), a Delaware corporation (the "Original
Guarantor"), Northwest Airlines, Inc., a Delaware corporation (together with its
successors and assigns, the "Company"), as Lessee, Wilmington Trust Company, not
in its individual capacity except as expressly provided therein but solely as
Owner Trustee (the "Owner Trustee") and State Street Bank and Trust Company, as
Indenture Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Original Guarantor, the Owner Trustee and
the Indenture Trustee have heretofore executed and delivered the Class C Trust
Indenture, dated as of December 21, 1994 (as amended, supplemented, waived or
otherwise modified, the "Indenture");
WHEREAS, pursuant to the Indenture the Owner Trustee has issued its
Class C Notes (the "Securities");
WHEREAS, the Original Guarantor has guaranteed the Securities;
WHEREAS, as of the date of this Supplemental Indenture, Newbridge
Merger Corporation, a wholly owned subsidiary of the Guarantor, will merge with
and into the Original Guarantor, with the Original Guarantor as the surviving
corporation, in accordance with Section 251(g) of the General Corporation Law of
the State of Delaware and pursuant to the Agreement and Plan of Merger, dated as
of January 25, 1998 (as amended and restated as of October 30, 1998, the "Merger
Agreement") among the Original Guarantor, the Guarantor and Newbridge Merger
Corporation, and thereafter the Original Guarantor shall be a wholly owned
subsidiary of the Guarantor; and
WHEREAS, pursuant to Section 11.4 of the Indenture, the Indenture
Trustee and the Owner Trustee are authorized to execute and deliver this
Supplemental Indenture to amend the Indenture, without the consent of any Holder
of Securities; and
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Owner Trustee and the Indenture Trustee mutually covenant and
agree for the equal and ratable benefit of the holders of the Securities as
follows:
<PAGE>
2
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Guarantee, terms defined
in the Indenture or in the preamble or recitals hereto are used herein as
therein defined, except that the term "Holders" in this Guarantee shall refer to
the term "Holders" as defined in the Indenture and the Indenture Trustee acting
on behalf or for the benefit of such holders. The words "herein," "hereof" and
"hereby" and other words of similar import used in this Supplemental Indenture
refer to this Supplemental Indenture as a whole and not to any particular
section hereof.
ARTICLE II
Guarantee
SECTION 2.1 Guarantee. The Guarantor, as primary obligor and not as
surety, hereby unconditionally and irrevocably guarantees to Lessor, the due,
punctual and full payment by Lessee of all amounts of Basic Rent, Supplemental
Rent, Stipulated Loss Value, Fair Market Sales Value and all other amounts
(including, without limitation, amounts payable as damages in case of default)
to be paid by Lessee pursuant to the Lease, whether such obligations now exist
or arise hereafter, as and when the same shall become due and payable in
accordance with the terms thereof (such obligations being hereinafter called the
"Obligations"). The Guarantor further agrees to pay Lessor on demand any and all
costs and expenses (including reasonable fees and disbursements of counsel) that
may be paid or incurred by Lessor in collecting any Obligations or in preserving
or enforcing any rights under this Guarantee or under the Obligations.
This Guarantee is a guarantee of payment, performance and compliance
and not of collectibility, is in no way conditioned or contingent upon any
attempt to collect from or enforce performance or compliance by Lessee or the
Original Guarantor, or upon any other event, contingency or circumstance
whatsoever, and shall be binding upon and against the Guarantor without regard
to the validity or enforceability of the Lease.
If for any reason whatsoever Lessee shall fail or be unable duly,
punctually and fully to pay any of the Obligations as and when the same shall
become due and payable or to perform or comply with any of the Obligations, the
Guarantor will immediately pay or cause to be paid such Obligations to the
Person or Persons entitled to receive the same (according to their respective
interests) under the terms of the Lease, or perform or comply with any such
Obligation or cause the same to be performed or complied with, together with
interest on any amount due and owing from Lessee at the rate provided for by the
Lease from the date the same shall have become due and payable to the date of
payment.
SECTION 2.2 Guarantor's Obligations Unconditional. The covenants and
agreements of the Guarantor set forth herein shall be primary obligations of the
Guarantor, and such obligations shall be continuing, absolute and unconditional,
shall not be subject to any counterclaim, setoff, deduction, diminution,
abatement, recoupment, suspension, deferment,
<PAGE>
3
reduction or defense (other than full and strict compliance by the Guarantor
with its obligations hereunder), whether based upon any claim that Lessee or the
Guarantor or any other Person may have against Lessor or any other Person or
otherwise, and shall remain in full force and effect without regard to, and
shall not, to the fullest extent permitted by applicable laws, be released,
discharged or in any way affected by, any circumstance or condition whatsoever
(whether or not the Guarantor or Lessee shall have any knowledge or notice
thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or
renewal to or other change in the Obligations, the Lease or any other
Operative Document or any of the agreements referred to in any thereof, or
any other instrument or agreement applicable to any Operative Document or
any of the parties to such agreements, or to the Aircraft, or any
assignment, mortgage or transfer thereof or of any interest therein, or
any furnishing or acceptance of additional security for, guarantee of, or
right of offset with respect to, any of the Obligations; or the failure or
release of any security or the failure of Lessor to perfect or insure any
interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor
to conform or comply with any term of any instrument or agreement referred
to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release
or other action or inaction under or in respect of any instrument,
agreement, guarantee, right of offset or security referred to in clause
(a) above or any obligation or liability of Lessee or Lessor, or any
exercise or nonexercise by Lessor of any right, remedy, power or privilege
under or in respect of any such instrument, agreement, guarantee, right of
offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect
to Lessee, Lessor or any other Person or any of their respective
properties or creditors, or any action taken by any trustee, receiver,
other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person
under the Lease or any other Operative Document, the Obligations, any
collateral security for the Obligations or any other guarantee of the
Obligations or any reductions, limitation, impairment, discharge,
termination, cancellation, frustration, irregularity, invalidity or
unenforceability, in whole or in part, of any of the foregoing, the
obligations under the Lease or any other agreement, instrument, guarantee
or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications,
condition, design, operation or fitness for use of or any damage to or
loss or destruction of, or any interruption or cessation in the use of the
Aircraft or any part thereof by Lessee or any other Person for any reason
whatsoever (including, without limitation, any governmental prohibition or
restriction, condemnation, requisition, seizure or any other act on the
part of any governmental or military authority, or any act of God or of
the public enemy)
<PAGE>
4
regardless of the duration thereof (even though such duration would
otherwise constitute a frustration of a lease), whether or not resulting
from accident and whether or not without fault on the part of Lessee or
any other Person;
(g) any merger or liquidation of Lessee or any merger or
consolidation of the Guarantor into or with any other corporation or
partnership or any sale, lease or transfer of any of the assets of Lessee
or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar
or dissimilar to the foregoing and any other circumstance that might
otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or that might otherwise limit
recourse against the Guarantor.
The obligations of the Guarantor, set forth herein constitute the
full recourse obligations of the Guarantor enforceable against it to the full
extent of all its assets and properties, notwithstanding any provision in the
Lease or any other agreement limiting the liability of Lessor or any other
Person.
Nothing herein shall prohibit Lessor from exercising its rights against
the Guarantor or any other Person simultaneously, jointly or severally. The
Guarantor shall be bound by each and every ruling, order and judgment obtained
by Lessor in respect of any of the obligations guaranteed hereunder whether or
not the Guarantor is a party to the action or proceeding in which such ruling,
order or judgment is issued or rendered.
SECTION 2.3 Limitation on Liability. Any term or provision of this
Guarantee to the contrary notwithstanding, the maximum aggregate amount
guarantied hereunder by the Guarantor shall not exceed the maximum amount that
can be hereby guarantied without rendering this Guarantee, as it relates to such
Guarantor, voidable under applicable law, including without limitation
applicable law relating to fraudulent conveyance or fraudulent transfer or
affecting the rights or remedies of creditors generally.
ARTICLE III
Miscellaneous
SECTION 3.1 Governing Law. This Agreement shall be governed by the
laws of the State of New York.
SECTION 3.2 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
<PAGE>
5
SECTION 3.3 Entire Agreement. This Supplemental Indenture is
intended by the parties to be a final expression of their agreement in respect
of the subject matter contained herein and, together with the Indenture,
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
SECTION 3.4 Ratification of Indenture; Supplemental Indentures Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Indenture Trustee makes no representation or warranty as to the validity or
sufficiency of this Supplemental Indenture.
SECTION 3.5 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.6 Headings. The headings of the Articles and the Sections
in this Supplemental Indenture are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
<PAGE>
6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
NORTHWEST AIRLINES CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
Address: 2700 Lone Oak Parkway
Eagan, MN 55121
NORTHWEST AIRLINES, INC., as Lessee
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
NORTHWEST AIRLINES HOLDINGS CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executve Vice President, General
Counsel and Secretary
WILMINGTON TRUST COMPANY, as Owner
Trustee
By:
/s/ Charisse L. Rodgers
----------------------------------------
Name: Charisse L. Rodgers
Title: Senior Financial Services Officer
<PAGE>
7
STATE STREET BANK AND TRUST
COMPANY, as Indenture Trustee
By:
/s/ Donald E. Smith
----------------------------------------
Name: Donald E. Smith
Title: Vice President
<PAGE>
Exhibit 4(b)(6)
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement, dated as of November 20, 1998 (this
"Supplemental Agreement"), among Northwest Airlines Corporation (formerly known
as Newbridge Parent Corporation), a Delaware corporation (the "New Guarantor"),
Northwest Airlines Holdings Corporation (formerly known as Northwest Airlines
Corporation), a Delaware corporation (the "Original Guarantor"), Northwest
Airlines, Inc., a Delaware corporation (together with its successors and
assigns, the "Company"), and State Street Bank and Trust Company, a
Massachusetts trust company, as Trustee under the Basic Agreement referred to
below.
W I T N E S S E T H:
WHEREAS, the Company, the Original Guarantor, and the Trustee have
heretofore executed and delivered the Pass Through Trust Agreement, dated as of
June 3, 1996 (as amended, supplemented, waived or otherwise modified, the "Basic
Agreement");
WHEREAS, pursuant to the Basic Agreement from time to time the
Original Guarantor, the Company and the Trustee may enter into Trust Supplements
pursuant to which the Trustee shall declare the creation of a separate Trust for
the benefit of the Holders of the series of certificates to be issued in respect
of each such Trust;
WHEREAS, the Original Guarantor has undertaken certain obligations
pursuant to the Basic Agreement;
WHEREAS, as of the date of this Supplemental Agreement, Newbridge
Merger Corporation, a wholly owned subsidiary of the New Guarantor, will merge
with and into the Original Guarantor, with the Original Guarantor as the
surviving corporation, in accordance with Section 251(g) of the General
Corporation Law of the State of Delaware and pursuant to the Agreement and Plan
of Merger, dated as of January 25, 1998 (as amended and restated as of October
30, 1998, the "Merger Agreement") among the Original Guarantor, the New
Guarantor and Newbridge Merger Corporation, and thereafter the Original
Guarantor shall be a wholly owned subsidiary of the New Guarantor; and
WHEREAS, pursuant to Section 9.01 of the Basic Agreement, the
Original Guarantor, the Company and the Trustee are authorized to execute and
deliver this Supplemental Agreement to amend the Basic Agreement, without the
consent of any Certificateholders; and
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Original Guarantor, the Company and the Trustee mutually covenant
and agree for the equal and ratable benefit of the Certificateholders as
follows:
<PAGE>
2
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Supplemental Agreement,
terms defined in the Basic Agreement or in the preamble or recitals hereto are
used herein as therein defined. The words "herein," "hereof" and "hereby" and
other words of similar import used in this Basic Agreement refer to this Basic
Agreement as a whole and not to any particular section hereof.
ARTICLE II
Modifications
SECTION 2.1 Definitions. Section 1.01 of the Basic Agreement is
hereby amended by adding thereto, in its proper alphabetical order, the
following definition:
"New Guarantor: Northwest Airlines Corporation (formerly known as
Newbridge Parent Corporation) for so long as it shall guarantee the
obligations of the Company under any Lease.
SECTION 2.2 Section 8.04. Section 8.04 of the Basic Agreement is
hereby amended by deleting such Section in its entirety and by substituting, in
lieu thereof, the following:
"Section 8.04. Reports by the Guarantor, New Guarantor and Company.
The Guarantor, the New Guarantor and the Company each shall:
(a) file with the Trustee, within 30 days after the Guarantor, the
New Guarantor or the Company is required to file the same with the SEC,
copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may
from time to time by rules and regulations prescribe) which the Guarantor,
the New Guarantor or the Company is required to file with the SEC pursuant
to section 13 or section 15(d) of the Securities Exchange Act of 1934, as
amended; or, if the Guarantor, the New Guarantor or the Company is not
required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the SEC, in accordance
with rules and regulations prescribed by the SEC, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the rules
and regulations prescribed by the SEC, such additional information,
documents and reports
<PAGE>
3
with respect to compliance by the Guarantor, the New Guarantor and the
Company with the conditions and covenants of the Guarantor, the New
Guarantor and the Company provided for in this Agreement, as may be
required by such rules and regulations, including, in the case of annual
reports, if required by such rules and regulations, certificates or
opinions of independent public accountants, conforming to the requirements
of Section 1.02;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act such
summaries of any information, documents and reports required to be filed
by the Guarantor, the New Guarantor and the Company pursuant to
subsections (a) and (b) of this Section 8.04 as may be required by rules
and regulations prescribed by the SEC;
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Guarantor's, the New Guarantor's and the Company's compliance with all
conditions and covenants under this Agreement (it being understood that
for purposes of this paragraph (d), such compliance shall be determined
without regard to any period of grace or requirement of notice provided
under this Agreement); and
(e) make available to any Certificateholder upon request, the annual
audited and quarterly unaudited financial statements of the New Guarantor
which are provided to the Trustee."
SECTION 2.3 Section 11.01. Section 11.01 of the Basic Agreement is
hereby amended by adding in the first paragraph thereof, after the word
"Guarantor" the words and punctuation ", the New Guarantor".
ARTICLE III
Miscellaneous
SECTION 3.1 Governing Law; Successors. This Agreement shall be
governed by the laws of the State of New York. This Supplemental Agreement shall
be binding upon the Guarantor, the New Guarantor, the Company and their
respective successors and assigns and shall inure to the benefit of each of the
parties to the Basic Agreement
SECTION 3.2 Severability Clause. In case any provision in this
Supplemental Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
SECTION 3.3 Entire Agreement. This Supplemental Agreement is
intended by the parties to be a final expression of their agreement in respect
of the subject matter contained
<PAGE>
4
herein and, together with the Basic Agreement, supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
SECTION 3.4 Ratification of Basic Agreement; Supplemental Agreement
Part of Basic Agreement. Except as expressly amended hereby, the Basic Agreement
is in all respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect. This Supplemental
Agreement shall form a part of the Basic Agreement for all purposes, and every
Certificateholder heretofore or hereafter authenticated and delivered shall be
bound hereby. The Trustee makes no representation or warranty as to the validity
or sufficiency of this Supplemental Agreement.
SECTION 3.5 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Agreement in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.6 Headings. The headings of the Articles and the Sections
in this Supplemental Agreement are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
<PAGE>
5
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Agreement to be duly executed as of the date first above written.
NORTHWEST AIRLINES CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
Address: 2700 Lone Oak Parkway
Eagan, MN 55121
NORTHWEST AIRLINES, INC.
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
NORTHWEST AIRLINES HOLDINGS CORPORATION
By:
/s/ Douglas M. Steenland
----------------------------------------
Name: Douglas M. Steenland
Title: Executve Vice President, General
Counsel and Secretary
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
/s/ Donald E. Smith
----------------------------------------
Name: Donald E. Smith
Title: Vice President
