EX-99(I)
EXHIBIT 99(I)
GUARANTEE
[NW ____ _]
Dated as of [______________]
from
NORTHWEST AIRLINES CORPORATION
One [Airbus A319-114] [Boeing 757-251] Aircraft
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TABLE OF CONTENTS TO GUARANTEE
Page
1. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. No Implied Third Party Beneficiaries . . . . . . . . . . . . . . . . 3
3. Waiver; No Set-off; Reinstatement; Subrogation . . . . . . . . . . . 4
4. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Jurisdictional Matters . . . . . . . . . . . . . . . . . . . . . . . 4
7. Integration; Counterparts; Successors and Assigns; Headings . . . . . 5
8. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9. No Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
10. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
11. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
12. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
13. Enforcement Expenses . . . . . . . . . . . . . . . . . . . . . . . . 6
14. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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GUARANTEE
[NW ____ _]
This GUARANTEE [NW ____ _], dated as of [______________] (as
amended, modified or supplemented from time to time, this "Guarantee"), from
NORTHWEST AIRLINES CORPORATION, a Delaware corporation (together with its
permitted successors and assigns, the "Guarantor"), to the parties listed in
Schedule I hereto (collectively, together with their successors and permitted
assigns (including any subsequent Certificate Holder), the "Parties", and,
individually, a "Party").
WHEREAS, Northwest Airlines, Inc., a Minnesota corporation (the
"Owner"), an indirect wholly-owned subsidiary of the Guarantor, wishes to
enter into a Trust Indenture and Security Agreement [NW ____ _], dated as of
the date hereof (as amended, modified or supplemented from time to time, the
"Trust Indenture"), between the Owner and State Street Bank and Trust
Company, not in its individual capacity, except as expressly stated therein,
but solely as Indenture Trustee, initially relating to one (1) [Airbus A319-
114] [Boeing 757-251] aircraft, together with two (2) [CFM International,
Inc. Model CFM56-5A[5]] [Pratt & Whitney Model PW2037] engines (such aircraft
and engines, and any substitute Airframe and Engines under the Trust
Indenture, being collectively referred to herein as the "Aircraft"), pursuant
to a Participation Agreement [NW ____ _], dated as of the date hereof (as
amended, modified or supplemented from time to time, the "Participation
Agreement"), among the Owner, the Parties and certain other entities; and
WHEREAS, it is a condition precedent to the obligations of the
Parties to consummate the transactions contemplated by the Participation
Agreement that the Guarantor execute and deliver this Guarantee; and
WHEREAS, the capitalized terms used herein that are not defined
herein are used herein as defined in Annex A to the Trust Indenture;
NOW, THEREFORE, in order to induce the Parties to enter into the
Participation Agreement and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Guarantee.
(a) The Guarantor does hereby acknowledge that it is fully aware
of the terms and conditions of the Trust Indenture, the Participation
Agreement, the Secured Certificates and the other Operative Documents and the
transactions and the other documents contemplated thereby, and does hereby
irrevocably and fully and unconditionally guarantee, as primary obligor and
not as surety merely, to the Parties, as their respective interests may
appear, the payment by the Owner of all payment obligations when due under
the Trust Indenture, the Participation Agreement, the Secured Certificates
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and the other Operative Documents to which the Owner is a party (such
obligations of the Owner guaranteed hereby being hereafter referred to,
individually, as a "Financial Obligation" and, collectively, as the
"Financial Obligations") in accordance with the terms of the Operative
Documents, and the timely performance of all other obligations of the Owner
thereunder (individually, a "Nonfinancial Obligation" and, collectively, the
"Nonfinancial Obligations" or, collectively with the Financial Obligations,
the "Obligations"). The Guarantor does hereby agree that in the event that
the Owner fails to pay any Financial Obligation when due for any reason
(including, without limitation, the liquidation, dissolution, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of, or other similar
proceedings affecting the status, existence, assets or obligations of, the
Owner, or the disaffirmance with respect to the Owner of the Trust Indenture
or any other Operative Document to which the Owner is a party in any such
proceeding) within five days after the date on which such Financial
Obligation became due and payable and the applicable grace period has
expired, the Guarantor shall pay or cause to be paid forthwith, upon the
receipt of notice from the Indenture Trustee (such notice to be sent to the
Owner (to the extent the Indenture Trustee is not stayed or prevented from
doing so by operation of law) and the Guarantor) stating that such Financial
Obligation was not paid when due and for five days after the applicable grace
period has expired, the amount of such Financial Obligation. The Guarantor
hereby agrees that in the event the Owner fails to perform any Nonfinancial
Obligation for any reason (including, without limitation, the liquidation,
dissolution, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of, or
other similar proceedings affecting the status, existence, assets or
obligations of, the Owner, or the disaffirmance with respect to the Owner of
the Trust Indenture or any other Operative Document to which the Owner is a
party in any such proceeding) within 10 Business Days after the date on which
such Nonfinancial Obligation is required to be performed (for avoidance of
doubt, to include any applicable grace period), the Guarantor shall cause
such Nonfinancial Obligation to be performed within 10 Business Days
following the receipt of notice from the Indenture Trustee (such notice to be
sent to the Owner (to the extent the Indenture Trustee is not stayed or
prevented from doing so by operation of law) and the Guarantor) stating that
such Nonfinancial Obligation was not performed when so required and that any
applicable grace period has expired.
(b) The obligations of the Guarantor hereunder shall not be, to
the fullest extent permitted by law, affected by: the genuineness, validity,
regularity or enforceability (or lack thereof) of any of the Owner's
obligations under the Trust Indenture or any other Operative Document to
which the Owner is a party, any amendment, waiver or other modification of
the Trust Indenture or such other Operative Document (except that any such
amendment or other modification shall be given effect in determining the
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obligations of the Guarantor hereunder), or by any substitution, release or
exchange of collateral for or other guaranty of any of the Obligations
(except to the extent that such substitution, release or exchange is
undertaken in accordance with the terms of the Operative Documents) without
the consent of the Guarantor, or by any priority or preference to which any
other obligations of the Owner may be entitled over the Owner's obligations
under the Trust Indenture and the other Operative Documents to which the
Owner is a party, or by any other circumstance that might otherwise
constitute a legal or equitable defense to or discharge of the obligations of
a surety or guarantor including, without limitation, any defense arising out
of any laws of the United States of America or any State thereof which would
excuse, discharge, exempt, modify or delay the due or punctual payment and
performance of the obligations of the Guarantor hereunder. Without limiting
the generality of the foregoing, it is agreed that the occurrence of any one
or more of the following shall not, to the fullest extent permitted by law,
affect the liability of the Guarantor hereunder: (a) the extension of the
time for or waiver of, at any time or from time to time, without notice to
the Guarantor, the Owner's performance of or compliance with any of its
obligations under the Operative Documents (except that such extension or
waiver shall be given effect in determining the obligations of the Guarantor
hereunder), (b) any assignment, transfer, lease or other arrangement by which
the Owner transfers possession or loses control of the use of the Aircraft,
(c) any defect in the title, condition, design, operation or fitness for use
of, or damage to or loss or destruction of, the Aircraft, whether or not due
to the fault of the Owner, (d) any merger or consolidation of the Owner or
the Guarantor into or with any other Person, or any sale, transfer, lease or
disposal of any of its assets or (e) any change in the ownership of any
shares of capital stock of the Owner.
(c) This Guarantee is an absolute, present and continuing guaranty
of payment and performance and not of collectability and is in no way
conditional or contingent upon any attempt to collect from the Owner any
unpaid amounts due or otherwise to enforce performance by the Owner. The
Guarantor specifically agrees, to the fullest extent permitted by law, that
it shall not be necessary or required, and that the Guarantor shall not be
entitled to require, that any Party (i) file suit or proceed to obtain or
assert a claim for personal judgment against the Owner for the Obligations,
or (ii) make any effort at collection of the Obligations from the Owner, or
(iii) foreclose against or seek to realize upon any security now or hereafter
existing for the Obligations, including the Collateral, or (iv) file suit or
proceed to obtain or assert a claim for personal judgment against any other
Person liable for the Obligations, or make any effort at collection of the
Obligations from any such other Person, or exercise or assert any other right
or remedy to which any Party is or may be entitled in connection with the
Obligations or any security or other guaranty therefor, or (v) assert or file
any claim against the assets of the Owner or any other guarantor or other
Person liable for the Obligations, or any part thereof, before or as a
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condition of enforcing the liability of the Guarantor under this Guarantee or
requiring payment of said Obligations by the Guarantor hereunder, or at any
time thereafter.
(d) The Guarantor agrees, to the fullest extent permitted by law,
that, without limiting the generality of this Guarantee, if an Event of
Default shall have occurred and be continuing and the Indenture Trustee shall
be prevented by applicable law from exercising its remedies (or any of them)
under Article IV of the Trust Indenture, the Indenture Trustee shall be,
nevertheless, entitled to receive hereunder from the Guarantor, upon demand
therefor the sums that would otherwise have been due from the Owner under the
Trust Indenture had such remedies been able to be exercised. The Guarantor
hereby unconditionally waives, to the fullest extent permitted by law, any
requirement that, as a condition precedent to the enforcement of the
obligations of the Guarantor hereunder, the Owner or all or any one or more
of any other guarantors of any of the Obligations be joined as parties to any
proceedings for the enforcement of any provision of this Guarantee.
2. No Implied Third Party Beneficiaries. This Guarantee shall
not be deemed to create any right in any Person except a Party and shall not
be construed in any respect to be a contract in whole or in part for the
benefit of any other Person.
3. Waiver; No Set-off; Reinstatement; Subrogation. The Guarantor
waives notice of the acceptance of this Guarantee and of the performance or
nonperformance by the Owner, demand for payment from the Owner or any other
Person, notice of nonpayment or failure to perform on the part of the Owner,
diligence, presentment, protest, dishonor and, to the fullest extent
permitted by law, all other demands or notices whatsoever, other than the
request for payment hereunder and notice provided for in Section 1 hereof.
The obligations of the Guarantor shall be absolute and unconditional and
shall remain in full force and effect until satisfaction of all Obligations
hereunder and, without limiting the generality of the foregoing, to the
extent not prohibited by applicable law, shall not be released, discharged or
otherwise affected by the existence of any claims, set-off, defense or other
rights that the Guarantor may have at any time and from time to time against
any Party, whether in connection herewith or any unrelated transactions.
This Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any Financial Obligation is rescinded
or must otherwise be returned by any Party upon the insolvency, bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution, liquidation
or similar proceeding with respect to the Owner or otherwise, all as though
such payment had not been made. The Guarantor, by virtue of any payment or
performance hereunder to a Party, shall be subrogated to such Party's claim
against the Owner or any other Person relating thereto; provided, however,
that the Guarantor shall not be entitled to receive payment from the Owner in
respect of any claim against the Owner arising from a payment by the
Guarantor in the event of any insolvency, bankruptcy, liquidation,
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reorganization or other similar proceedings relating to the Owner, or in the
event of any proceedings for voluntary liquidation, dissolution or other
winding-up of the Owner, whether or not involving insolvency or bankruptcy
proceedings, in which case the Obligations shall be paid and performed in
full before any payment in respect of a claim by the Guarantor shall be made
by or on behalf of the Owner.
4. Amendments, Etc. No amendment of or supplement to this
Guarantee, or waiver or modification of, or consent under, the terms hereof,
shall be effective unless evidenced by an instrument in writing signed by the
Guarantor and each Party against whom such amendment, supplement, waiver,
modification or consent is to be enforced.
5. Payments. All payments by the Guarantor hereunder in respect
of any Obligation shall be made in Dollars and otherwise as provided in the
Trust Indenture, the Participation Agreement or any other Operative Document
in which such Obligation is contained.
6. Jurisdictional Matters. The Guarantor (a) hereby irrevocably
submits itself to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York and to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, New York County,
for the purposes of any suit, action or other proceeding arising out of this
Guarantee brought by any party, and (b) hereby waives, and agrees not to
assert, by way of motion, as a defense, or otherwise, in any such suit,
action or proceeding, to the extent permitted by applicable law, that the
suit, action or proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper, or that this Guarantee
may not be enforced in or by such courts. The Guarantor hereby generally
consents to service of process at Cadwalader, 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.
7. Integration; Counterparts; Successors and Assigns; Headings.
This Guarantee (a) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the Guarantor and
the Parties, with respect to the subject matter hereof, (b) may be executed
in several counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument, and (c) shall
be binding upon the successors and assigns of the Guarantor and shall inure
to the benefit of, and shall be enforceable by, each of the Parties to the
fullest extent permitted by applicable laws. The headings in this Guarantee
are for purposes of reference only, and shall not limit or otherwise affect
the meanings hereof.
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8. Notices. All requests, notices or other communications
hereunder shall be in writing, addressed as follows:
If to the Guarantor:
to the address or telecopy number set forth in the
Participation Agreement
If to a Party:
to the address or telecopy number set forth in the
Participation Agreement
All requests, notices or other communications shall be given in the
manner, and shall be effective at the times and under the terms, set forth in
Section 13(b) of the Participation Agreement.
9. No Waivers. No failure on the part of any Party to exercise,
no delay in exercising, and no course of dealing with respect to, any right
or remedy hereunder will operate as a waiver thereof; nor will any single or
partial exercise of any right or remedy hereunder preclude any other or
further exercise of such right or remedy or the exercise of any other right
or remedy.
10. Survival. All representations and warranties contained herein
or made in writing by the Guarantor in connection herewith shall survive the
execution and delivery of this Guarantee regardless of any investigation made
by any Party or any other Person.
11. Severability. To the fullest extent permitted by applicable
law, any provision of this Guarantee that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or any provision in any other Operative Document, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
12. GOVERNING LAW. THIS GUARANTEE IS DELIVERED IN, AND SHALL (AND
THE RIGHTS AND DUTIES OF THE GUARANTOR AND THE PARTIES SHALL) IN ALL RESPECTS
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
THIS GUARANTEE SHALL BE DEEMED MADE WHEN DELIVERED IN NEW YORK, NEW YORK.
13. Enforcement Expenses. The Guarantor agrees to pay to any
Party any and all reasonable costs and expenses (including reasonable legal
fees and expenses) incurred by such Party in enforcing, or collecting under,
this Guarantee.
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14. Termination. Subject to the provisions of Section 3 hereof,
this Guarantee shall terminate upon the indefeasible payment and performance
in full of all of the Obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Guarantee
to be duly executed as of the date first hereinabove set forth.
NORTHWEST AIRLINES CORPORATION
By:____________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
in its individual capacity and as
Indenture Trustee
By:__________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION
not in its individual capacity but
solely as Pass Through Trustee
By:__________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
as Subordination Agent
By:___________________________________
Name:
Title:
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SCHEDULE I
TO GUARANTEE
[NW ____ _]
PARTIES
State Street Bank and Trust Company, as Indenture Trustee
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee
State Street Bank and Trust Company, as Subordination Agent
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