Exhibit 99(a)
TRUSTEE PARENT GUARANTEE
GUARANTEE, dated as of June 3, 1999 by State Street Bank and Trust
Company, a Massachusetts trust company (the "GUARANTOR") to and for the benefit
of each person listed on SCHEDULE I hereto (collectively, together with their
permitted successors and assigns, the "BENEFICIARIES" and, individually, a
"BENEFICIARY").
WITNESSETH:
WHEREAS, State Street Bank and Trust Company of Connecticut, National
Association, a wholly-owned subsidiary of the Guarantor (the "SUBSIDIARY")
wishes to act pursuant to the agreements listed on SCHEDULE II hereto (as
amended, modified or supplemented from time to time, the "AGREEMENTS").
WHEREAS, the Beneficiaries are willing to have the Subsidiary act under
the Agreements provided that the Guarantor executes and delivers this Guarantee;
WHEREAS, the Guarantor has determined that the execution and delivery by
it of this Guarantee is necessary in order to conduct, promote and attain the
business of the Subsidiary and the Guarantor; and
WHEREAS, the Guarantor has determined that it has a substantial interest
in the Subsidiary's performance of the Agreements.
NOW, THEREFORE, the Guarantor hereby agrees with and for the benefit of
the Beneficiaries as follows:
1. GUARANTEE.
(a) The Guarantor hereby guarantees to the Beneficiaries the
prompt and complete payment by the Subsidiary when due of, and the
faithful performance of, and compliance with, all payment obligations of
the Subsidiary under the Agreements and any other document relating
thereto to which the Subsidiary is or may hereafter become a party or by
which the Subsidiary is or may hereafter become bound (collectively, the
"RELEVANT DOCUMENTS"), in accordance with the terms thereof and the
timely performance of all other obligations of the Subsidiary thereunder
(such payment and other obligations, the "OBLIGATIONS"). In no event,
however, shall the agreement contained herein be construed to constitute
a guarantee of any amount due (i) under any note or other similar
instrument issued under the Relevant Documents or any other payment due
under any Relevant Document that constitute non-recourse
obligations of the Subsidiary, or (ii) with respect to acts or events
occurring after such time, if any, that the Subsidiary ceases to be a
party to the Relevant Documents. The agreement contained herein shall be
enforceable against the Guarantor, notwithstanding the fact that the
Subsidiary has ceased to be a party to the Relevant Documents, PROVIDED
that the events or acts which give rise to such claim against the
Guarantor occurred at such time as the Subsidiary was a party to the
Relevant Documents.
(b) No payment or payments made by the Subsidiary, the Guarantor,
any other guarantor or any other person or received or collected by any
Beneficiary from the Subsidiary, the Guarantor, any other guarantor or
any other person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of the Guarantor
hereunder (except to the extent of such payment) until the Obligations
are paid and performed in full.
(c) If for any reason any Obligations to be performed or observed
by the Subsidiary shall not be observed or performed, or if any amount
payable by the Subsidiary referred to in Section 1(a) hereof shall not
be paid when due and payable, the Guarantor shall promptly perform or
observe or cause to be performed or observed each such Obligation or
undertaking and shall forthwith pay such amount or perform such action
at the place and to the person or entity entitled thereto pursuant to
the Relevant Documents.
2. AMENDMENTS, ETC., WITH RESPECT TO THE OBLIGATIONS; WAIVER OF RIGHTS.
The Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantor and without notice to or further
assent by the Guarantor, any demand for payment or performance of any of the
Obligations made by any Beneficiary may be rescinded by such party and any of
the Obligations continued, and the Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guaranty
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by any Beneficiary and any Relevant
Document and/or any collateral security document or other guaranty or document
in connection therewith, may be amended, modified, supplemented or terminated,
in whole or in part, as the parties thereto may deem advisable from time to
time, and any collateral security, guaranty or right of offset at any time held
by any Beneficiary for the payment or performance of the Obligations may be
sold, exchanged, waived, surrendered or released.
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3. GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Guarantor understands and
agrees that this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment and performance (and not merely of
collection) without regard to (a) any defense, set-off or counterclaim (other
than a defense of payment or performance) that may at any time be available to
or be asserted by the Subsidiary against any Beneficiary, (b) the validity or
enforceability of any Relevant Document against the Subsidiary, or (c) any other
circumstances whatsoever (with or without notice to or knowledge of the
Subsidiary or the Guarantor) that constitutes, or might be construed to
constitute, an equitable or legal discharge of the Subsidiary for the
Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any
other instance (other than a discharge of such Obligations through payment or
performance). When pursuing its rights and remedies hereunder against the
Guarantor, any Beneficiary may, but shall be under no obligation to, pursue such
rights and remedies as it may have against the Subsidiary or any other person or
entity or against any collateral security or guaranty for the Obligations or any
right of offset with respect thereto, and any failure by any Beneficiary to
pursue such other rights or remedies or to collect any payments from the
Subsidiary or any such other person or entity or to realize upon any such
collateral security or guaranty or to exercise any such right of offset, or any
release of the Subsidiary or any such other person or entity or any such
collateral security, guaranty or right of offset, shall not relieve the
Guarantor of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of any
Beneficiary against the Guarantor. This Guarantee shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon the
Guarantor and the successors and assigns thereof, and shall inure to the benefit
of the Beneficiaries, and their respective successors, transferees and assigns,
until all of the Obligations and the obligations of the Guarantor under this
Agreement shall have been satisfied by payment and performance in full. The
Guarantor further agrees to pay all expenses (including, without limitation, all
reasonable fees and disbursements of counsel) that may be paid or incurred by
the Beneficiaries in enforcing any rights with respect to, or collecting, any or
all of the Obligations and/or enforcing any rights with respect to, or
collecting against, the Guarantor under this Guarantee.
4. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents and
warrants that:
(a) the Guarantor is a trust company duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization;
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(b) the Guarantor has the corporate power and authority and the
legal right to execute and deliver, and to perform its obligations
under, this Guarantee, and has taken all necessary corporate action to
authorize its execution, delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally;
(d) the execution, delivery and performance of the Guarantee and
compliance by the Guarantor with all of the provisions thereof do not
and will not contravene (i) any provision of any requirement of law or
any order known to us of any court or governmental authority or agency
applicable to or binding on the Guarantor, (ii) any contractual
obligations of the Guarantor, or (iii) any of the provisions of its
charter documents or By-laws;
(e) no consent or authorization of, filing with or other act by
or in respect of, any arbitrator or governmental authority and no
consent of any other person (including, without limitation, any
stockholder or creditor of the Guarantor) is required in connection with
the execution, delivery, performance, validity or enforceability of this
Guarantee;
(f) the Guarantor is a bank with a combined capital and surplus
or corporation with a tangible net worth of at least $250,000,000, as
determined in accordance with generally accepted accounting principles;
(g) the Guarantor owns all of the capital stock of the
Subsidiary; and
(h) there are no proceedings pending or, to our knowledge,
threatened, and to our knowledge there is no existing basis for any such
proceedings, against or affecting the Guarantor in or before any court
or before any governmental authority or arbitration board or tribunal
which, if adversely determined, might restrict the Guarantor's corporate
power and authority to perform its obligations under the Guarantee.
5. REINSTATEMENT. The Guarantor agrees that this Guarantee shall be
automatically reinstated with respect to any payment made prior to the
termination of this Guarantee by or on behalf of the Subsidiary pursuant to any
Relevant Document to which the Subsidiary is a party if and to the extent that
such payment is rescinded or must be otherwise restored, whether as a result of
any proceedings in bankruptcy or reorganization or otherwise.
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6. MISCELLANEOUS. None of the terms or provisions of this Guarantee may
be waived, amended or supplemented or otherwise modified except by a written
instrument executed by the Guarantor and the Beneficiaries. This Guarantee shall
be binding upon the successors and assigns of the Guarantor and shall inure to
the benefit of the Beneficiaries and their respective successors, transferees
and assigns. THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS. All notices,
requests and demands to or upon the Guarantor or any Beneficiary to be effective
shall be in writing or by telecopy and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand,
or, in the case of mail, three days after deposit in the postal system, first
class postage pre-paid, or, in the case of telegraphic notice, when sent,
answerback received, addressed to (a) in the case of the Guarantor, Corporate
Trust Department, 000 Xxxxxxxx Xxxxxx, Xxxxxx XX 00000; Telecopy No. (617)
664-5371, and (b) in the case of any Beneficiary, the address provided for such
party in the Relevant Documents, or at such other address as such person may
provide to the Guarantor in writing.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly
executed and delivered by its duly authorized officer as of the day and the year
first above written.
STATE STREET BANK AND TRUST COMPANY
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President
SCHEDULE I
Northwest Airlines Corporation
Northwest Airlines, Inc.
Each person that shall from time to time be a holder of Pass Through
Certificates (as such term is defined in the Pass Through Trust Agreement
referenced on SCHEDULE II to this Guarantee)
SCHEDULE II
Pass Through Trust Agreement dated as of the date hereof by and among
the Subsidiary as Pass Through Trustee, Northwest Airlines, Inc., as Issuer and
Northwest Airlines Corporation, as Guarantor, as supplemented from time to time.
