EXHIBIT 99(g)
================================================================================
GUARANTEE
[NW ____ __]
DATED AS OF [_____________]
FROM
NORTHWEST AIRLINES CORPORATION
ONE [AIRBUS A319-113/114] [BOEING 757-351] [BOEING 747-451] AIRCRAFT
================================================================================
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. Assignment of Guarantee..............................................4
7. Jurisdictional Matters...............................................5
8. Integration; Counterparts; Successors and Assigns; Headings..........5
9. Notices..............................................................5
10. No Waivers...........................................................5
11. Survival.............................................................6
12. Severability.........................................................6
13. GOVERNING LAW........................................................6
14. Enforcement Expenses.................................................6
15. Termination..........................................................6
16. No Guarantee of Secured Certificates.................................6
-i-
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, the "PARTIES", and, individually, a "PARTY").
WHEREAS, Northwest Airlines, Inc., a Minnesota corporation
(the "LESSEE"), an indirect wholly-owned subsidiary of the Guarantor, wishes to
enter into a Lease Agreement [NW ____ __], dated as of the date hereof (as
amended, modified or supplemented from time to time, the "LEASE"), between the
Lessee and Xxxxx Fargo Bank Northwest, 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) [Airbus
A319-113/114] [Boeing 757-351] [Boeing 747-451] aircraft, together with [two
(2)] [four (4)] [CFM International, Inc. Model CFM56-5A4/5A5] [Xxxxx & Whitney
Model PW2040] [Xxxxx & Xxxxxxx 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
____ __], dated as of the date hereof (as amended, modified or supplemented from
time to time, the "PARTICIPATION AGREEMENT"), among the Lessee, 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 Lessor will assign 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 ____
__], dated as of the date hereof, 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, the capitalized terms used herein that are not
defined herein are used herein as defined in the Lease;
NOW, THEREFORE, in order to induce the Lessor to enter into
the Lease and to induce the other Parties referred to above to enter into the
Participation Agreement and for other good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto 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 any other Operative
Document 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 any
other Operative Document 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
-2-
arising out of any laws of the United States of America or any State thereof
which would excuse, discharge, exempt, modify or delay the due or punctual
payment and performance of the obligations of the Guarantor hereunder. Without
limiting the generality of the foregoing, it is agreed that the occurrence of
any one or more of the following shall not, to the fullest extent permitted by
law, affect the liability of the Guarantor hereunder: (a) the extension of the
time for or waiver of, at any time or from time to time, without notice to the
Guarantor, the Lessee's performance of or compliance with any of its obligations
under the Operative Documents (except that such extension or waiver shall be
given effect in determining the obligations of the Guarantor hereunder), (b) any
assignment, transfer, sublease or other arrangement by which the Lessee
transfers possession or loses control of the use of the Aircraft, (c) any defect
in the title, condition, design, operation or fitness for use of, or damage to
or loss or destruction of, the Aircraft, whether or not due to the fault of the
Lessee, (d) any merger or consolidation of the Lessee or the Guarantor into or
with any other Person, or any sale, transfer, lease or disposal of any of its
assets or (e) any change in the ownership of any shares of capital stock of the
Lessee.
(c) This Guarantee is an absolute, present and continuing
guaranty of payment and performance and not of collectability and is in no way
conditional or contingent upon any attempt to collect from the Lessee any unpaid
amounts due or otherwise to enforce performance by the Lessee. The Guarantor
specifically agrees, to the fullest extent permitted by law, that it shall not
be necessary or required, and that the Guarantor shall not be entitled to
require, that any Party (i) file suit or proceed to obtain or assert a claim for
personal judgment against the Lessee for the Obligations, or (ii) make any
effort at collection of the Obligations from the Lessee, or (iii) foreclose
against or seek to realize upon any security now or hereafter 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.
-3-
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 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.
-4-
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, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Managing Attorney, or such office of the Guarantor in
New York City as from time to time may be designated by the Guarantor in writing
to the Parties.
8. INTEGRATION; COUNTERPARTS; SUCCESSORS AND ASSIGNS;
HEADINGS. This Guarantee (a) constitutes the entire agreement, and supersedes
all prior agreements and understandings, both written and oral, among the
Guarantor and the Parties, with respect to the subject matter hereof, (b) may be
executed in several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument, and (c)
shall be binding upon the successors and assigns of the Guarantor and shall
inure to the benefit of, and shall be enforceable by, each of the Parties to the
fullest extent permitted by applicable laws. The headings in this Guarantee are
for purposes of reference only, and shall not limit or otherwise affect the
meanings hereof.
9. NOTICES. All requests, notices or other communications
hereunder shall be in writing, addressed as follows:
If to the Guarantor:
to the address or telecopy number set forth
in the Participation Agreement
If to a Party:
to the address or telecopy number set forth
in the Participation Agreement
-5-
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-
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:
Accepted as of the above date:
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION
in its individual capacity
and as Owner Trustee
By: __________________________________
Name:
Title:
STATE STREET BANK AND
TRUST COMPANY
in its individual capacity
and as Indenture Trustee
By: __________________________________
Name:
Title:
-7-
SCHEDULE I
TO GUARANTEE
[NW ____ __]
PARTIES
Xxxxx Fargo Bank Northwest, National Association,
in its individual capacity and as Owner Trustee
State Street Bank and Trust Company, as Indenture Trustee
[Owner Participant]