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BTNY PREFERRED STOCK REPURCHASE AGREEMENT
BETWEEN
NORTHWEST AIRLINES CORPORATION
AND
BANKERS TRUST NEW YORK CORPORATION
DATED AS OF SEPTEMBER 29, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS.................................1
1.1 Defined Terms...........................................................1
ARTICLE II
DELIVERY AND PURCHASE OF SHARES.....................3
2.1 Purchase and Sale of Shares.............................................3
2.2 Closing of Purchase and Sale of Shares..................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES......................4
3.1 Representations and Warranties of BTNY..................................4
3.2 Representations and Warranties of NWA Corp..............................5
ARTICLE IV
ACKNOWLEDGMENTS.............................6
4.1 Acknowledgments.........................................................6
ARTICLE V
CONDITIONS PRECEDENT...........................7
5.1 Conditions to Closing...................................................7
ARTICLE VI
GENERAL PROVISIONS............................8
6.1 Termination or Abandonment of Agreement.................................8
6.2 Expenses................................................................9
6.3 Execution in Counterparts...............................................9
6.4 Notices.................................................................9
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Page
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6.5 Governing Law..........................................................10
6.6 Titles and Headings....................................................10
6.7 Successors and Assigns.................................................10
6.8 Entire Agreement; No Oral Waiver.......................................10
6.9 Severability...........................................................11
6.10 No Third-Party Rights..................................................11
6.11 Submission To Jurisdiction.............................................11
6.12 Remedies...............................................................11
6.13 Brokers and Finders....................................................11
6.14 Further Assurances.....................................................12
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BTNY PREFERRED STOCK REPURCHASE AGREEMENT dated as of September 29,
1997 between NORTHWEST AIRLINES CORPORATION, a Delaware corporation ("NWA
Corp."), and BANKERS TRUST NEW YORK CORPORATION, a New York corporation
("BTNY").
W I T N E S S E T H :
WHEREAS, on the date hereof, BTNY owns 999 shares of NWA Corp.'s Class
A Common Stock, par value $.01 per share (the "Class A Common Stock"), and
2,635,020 shares of NWA Corp.'s Class B Common Stock, par value $.01 per share
(the "Class B Common Stock");
WHEREAS, concurrently with the Initial Closing Date (as defined in the
Common Stock Agreement (as hereinafter defined)), in accordance with the
provisions set forth in the Amendment to the Stockholders' Agreement (as
hereinafter defined), Koninklijke Luchtvaart Maatschappij N.V., a Netherlands
corporation ("KLM"), will exercise its right to purchase, and will purchase,
pursuant to Section 17 of the Stockholders' Agreement (as hereinafter defined)
(x) from Xxxxxxx X. Xxxx & Associates - NWA Partners, L.P. ("Xxxx"), 658,755
shares of Class A Common Stock in exchange for 163.6001 shares of Series A
Preferred Stock and 54.5250 shares of NWA Corp.'s Series B Preferred Stock, par
value $.01 per share (the "Series B Preferred Stock"), and (y) from BTNY,
2,635,020 shares of Class B Common Stock in exchange for 654.4002 shares of
Series A Preferred Stock and 218.1001 shares of Series B Preferred Stock,
following which purchase BTNY will own (i) 999 shares of Class A Common Stock,
(ii) 654.4002 shares of Series A Preferred Stock (the "Series A Preferred
Shares") and (iii) 218.1001 shares of Series B Preferred Stock (the "Series B
Preferred Shares", together with the Series A Preferred Shares, the "Preferred
Shares"); and
WHEREAS, upon the terms and subject to the conditions set forth herein,
BTNY wishes to sell to NWA Corp., and NWA Corp. wishes to purchase from BTNY,
the Preferred Shares on the Initial Closing Date;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms defined in the
recitals to this Agreement have the meanings assigned to such terms therein and
the following terms have the following meanings:
"Affiliate" when used with respect to another Person, means any Person
who is, whether directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with such Person.
"Agreement" means this BTNY Preferred Stock Repurchase Agreement, as
amended, supplemented or otherwise modified from time to time in accordance
with its terms.
"Amendment to the Stockholders' Agreement" means the agreement in the
form of Exhibit A to the Common Stock Agreement which amends the
Stockholders' Agreement and provides for (i) the acceleration of the
vesting of the KLM Option (as defined in the Stockholders' Agreement) in
respect of shares of Class A Common Stock subject to such option that are
held by Xxxx and BTNY, and the exercise by KLM of such KLM Option with
respect to such shares and the purchase of such shares concurrently with
the Initial Closing Date, (ii) the termination of the KLM Option for the
other Option Stockholders and the termination of the Put Option (as each
such term is defined in the Stockholders' Agreement) for all of the Option
Stockholders and (iii) immediately following the consummation of the
transactions contemplated by this Agreement on the Initial Closing Date,
the termination of all of KLM's other rights and obligations under the
Stockholders' Agreement.
"beneficially own" has the meaning given such term in Rule 13d-3 under
the Exchange Act (as defined below), as in effect on the date hereof. As
used herein, the phrases "beneficial ownership" and "beneficial owner" have
correlative meanings.
"Board of Directors" means the board of directors of NWA Corp. or any
successor corporation.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which banks are required or authorized by law to be closed in New
York, New York or in Minneapolis, Minnesota.
"Cash" means Dollars paid in immediately available funds.
"Common Stock Agreement" means the Common Stock Repurchase Agreement
dated as of September 29, 1997 between KLM and NWA Corp., entered into
concurrently with this Agreement.
"Dollars" and "$" mean lawful currency of the United States of America.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), other charge or
security interest;
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or any preference, priority or other arrangement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Liquidation Preference" means an amount in Cash equal to $50,000 for
each share of Series A Preferred Shares or Series B Preferred Shares, as
the case may be, plus an amount in Cash equal to all accrued but unpaid
dividends on such applicable share to the Initial Closing Date. Such amount
as of September 29, 1997 equals (i) $79,562.84 with respect to each share
of Series A Preferred Shares and (ii) $69,378.23 with respect to each share
of Series B Preferred Shares, which in each case shall be appropriately
adjusted in the event that the Initial Closing Date occurs on a date other
than September 29, 1997.
"Person" means an individual, partnership, limited liability company,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of
whatever nature.
"Series A Certificate of Designation" means the Amended and Restated
Certificate of Designation, which designated the Series A Preferred Stock,
in the form in which it was filed with Secretary of State of Delaware on
December 28, 1993 as part of NWA Corp.'s Second Amended and Restated
Certificate of Incorporation.
"Series B Certificate of Designation" means the Amended and Restated
Certificate of Designation, which designated the Series B Preferred Stock,
in the form in which it was filed with Secretary of State of Delaware on
December 28, 1993 as part of NWA Corp.'s Second Amended and Restated
Certificate of Incorporation.
"Stockholders' Agreement" means the Second Amended and Restated
Investor Stockholders' Agreement dated as of December 23, 1993, as amended,
supplemented or otherwise modified from time to time, among NWA Corp., KLM,
Xxxx, BTNY and certain other stockholders of NWA Corp. parties thereto, as
in effect on the date hereof.
ARTICLE II
DELIVERY AND PURCHASE OF SHARES
2.1 Purchase and Sale of Shares. On the terms and subject to the
conditions of this Agreement, on the Initial Closing Date, (i) BTNY agrees to
transfer, assign and deliver to NWA Corp., against payment by NWA Corp. to BTNY
of immediately available funds by wire transfer to an account designated by BTNY
in an amount equal to 99% of the aggregate Liquidation Preference for the Series
A Preferred Shares (the "Series A Purchase Price"), a
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certificate or certificates representing the Series A Preferred Shares, and NWA
Corp. agrees to purchase such shares and make such payment to BTNY against
delivery of such certificates on such Initial Closing Date, and (ii) BTNY agrees
to transfer, assign and deliver to NWA Corp., against payment by NWA Corp. to
BTNY of immediately available funds in an amount equal to 99% of the aggregate
Liquidation Preference for the Series B Preferred Shares (the "Series B Purchase
Price"), a certificate or certificates representing the Series B Preferred
Shares, and NWA Corp. agrees to purchase such shares and make such payment to
BTNY against delivery of such certificates on such Initial Closing Date. Such
certificates shall be duly endorsed in blank or accompanied by stock powers duly
executed in blank, with all necessary stock transfer stamps affixed.
2.2 Closing of Purchase and Sale of Shares. The closing of the purchase
and sale contemplated by Section 2.1 will occur at the time and place of the
Initial Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of BTNY. BTNY represents and
warrants to NWA Corp. as of the date hereof and as of the Initial Closing Date
as follows:
(a) BTNY is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York.
(b) BTNY has all requisite corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The
execution and delivery by BTNY of this Agreement and the performance of the
transactions herein contemplated to be performed by BTNY have been duly
authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by BTNY and, assuming due authorization, execution
and delivery by NWA Corp., constitutes the legal, valid and binding
agreement of BTNY, enforceable against BTNY in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding at law or in equity).
(c) Neither the execution and delivery of this Agreement or the
performance by BTNY of the transactions contemplated hereby will (i)
violate or conflict with any of the provisions of the charter or other
organizational documents of BTNY, (ii) with or without the giving of notice
or the lapse of time or both, violate or constitute a default under, or
result in the acceleration of or entitle any party to accelerate (whether
after the giving of notice or lapse of time or both) any obligation under
any mortgage, indenture, deed of trust, lease, contract, agreement, license
or other instrument or any
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provision of any law, order, judgment, decree, restriction or ruling of any
governmental authority to which BTNY is a party or by which any of its
property is bound or (iii) result in the creation of any Liens upon any of
the shares of Series A Preferred Stock or Series B Preferred Stock to be
acquired by it upon exercise of the KLM Option pursuant to the Amendment to
the Stockholders' Agreement.
(d) No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body or any other
Person is required for the execution, delivery and performance by BTNY of
this Agreement and the consummation of the transactions contemplated
hereby.
(e) There are no lawsuits, actions, arbitrations or legal or
administrative or regulatory proceedings, charges, complaints or
investigations pending or, to the best knowledge of BTNY, threatened
against BTNY, and BTNY is not a party to, or subject to or bound by, any
order, judgment, injunction, stipulation, award or decree (whether rendered
by a court or administrative agency or by arbitration), in any such case,
which could, individually or in the aggregate, materially adversely affect
the ability of BTNY to consummate the transactions contemplated hereby.
(f) On the Initial Closing Date BTNY will have, good and valid title to
the Preferred Shares to be purchased by NWA Corp. at the Initial Closing
Date, free and clear of all Liens.
(g) BTNY is the record and beneficial owner on the date hereof of 999
shares of Class A Common Stock and 2,635,020 shares of Class B Common
Stock, and upon exercise of the KLM Option pursuant to the Amendment to the
Stockholders' Agreement and the registration in the name of BTNY of the
shares being acquired by BTNY upon exercise of the KLM Option, BTNY will be
the record and beneficial owner (subject to this Agreement) of (i) 999
shares of Class A Common Stock, (ii) 654.4002 shares of Series A Preferred
Stock and (iii) 218.1001 shares of Series B Preferred Stock.
(h) Neither BTNY nor any of its officers, directors, employees or
agents has authorized any Person to act as a broker, finder or in any
similar capacity on behalf of BTNY in connection with the transactions
contemplated by this Agreement.
3.2 Representations and Warranties of NWA Corp. NWA Corp. represents
and warrants to BTNY as of the date hereof and as of the Initial Closing Date as
follows:
(a) NWA Corp. is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) NWA Corp. has all requisite corporate power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder. The execution and
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delivery by NWA Corp. of this Agreement and the performance of the
transactions herein contemplated to be performed by NWA Corp. have been
duly authorized by the Board of Directors and no further corporate action
on the part of NWA Corp. is necessary to authorize this Agreement and the
performance of such transactions. This Agreement has been duly executed and
delivered by NWA Corp. and, assuming due authorization, execution and
delivery by BTNY, constitutes the legal, valid and binding agreement of NWA
Corp., enforceable against NWA Corp. in accordance with its terms, except
as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding at law or in equity).
(c) Neither the execution and delivery of this Agreement or the
performance by NWA Corp. of the transactions contemplated hereby will (i)
violate or conflict with any of the provisions of the charter or other
organizational documents of NWA Corp. or (ii) with or without the giving of
notice or the lapse of time or both, violate or constitute a default under,
or result in the acceleration of or entitle any party to accelerate
(whether after the giving of notice or lapse of time or both) any
obligation under any mortgage, indenture, deed of trust, lease, contract,
agreement, license or other instrument or any provision of any law, order,
judgment, decree, restriction or ruling of any governmental authority to
which NWA Corp. is a party or by which any of its property is bound.
(d) No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body or any other
Person is required for the execution, delivery and performance by NWA Corp.
of this Agreement and the consummation of the transactions contemplated
hereby.
(e) There are no lawsuits, actions, arbitrations or legal or
administrative or regulatory proceedings, charges, complaints or
investigations pending or, to the best knowledge of NWA Corp., threatened
against NWA Corp., and NWA Corp. is not a party to, or subject to or bound
by, any order, judgment, injunction, stipulation, award or decree (whether
rendered by a court or administrative agency or by arbitration), in any
such case, which could, individually or in the aggregate, materially
adversely affect the ability of NWA Corp. to consummate the transactions
contemplated hereby.
(f) Neither NWA Corp. nor any of its officers, directors, employees or
agents has authorized any Person to act as a broker, finder or in any
similar capacity on behalf of NWA Corp. in connection with the transactions
contemplated by this Agreement.
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ARTICLE IV
ACKNOWLEDGMENTS
4.1 Acknowledgments. (a) BTNY hereby acknowledges that KLM, pursuant to
the Share Exchange Agreement, dated as of June 28, 1996 (the "Exchange
Agreement"), between KLM and NWA Corp., has unconditionally and irrevocably
agreed that NWA Corp. may, notwithstanding any provision to the contrary in the
Series A Certificate of Designation or the Series B Certificate of Designation,
as the case may be, or otherwise, declare, pay or set apart for payment any
dividend on any of the Junior Securities or Parity Securities or make any
payment on account of, or set apart for payment money for a sinking or other
similar fund for, the repurchase, redemption or other retirement of, any of the
Junior Securities or Parity Securities or any warrants, rights, options or other
securities exercisable for or convertible into any of the Junior Securities or
Parity Securities, or make any distribution in respect of Junior Securities or
Parity Securities, either directly or indirectly, and whether in cash,
obligations or shares of NWA Corp. or other property, and may permit NWA Corp.
or any corporation or other entity directly or indirectly controlled by NWA
Corp. to purchase or redeem any of the Junior Securities or Parity Securities or
any warrants, rights, options or other securities exercisable for or convertible
into any of the Junior Securities or Parity Securities. For purposes of this
Section 4.1(a), the terms "Junior Securities" and "Parity Securities" have the
meanings assigned to such terms in each of the Series A Certificate of
Designation and the Series B Certificate of Designation.
(b) BTNY further acknowledges that the agreements and waivers contained
in Sections 6.1(a), (b) and (c) of the Share Exchange Agreement including the
agreement specified in Section 4.1(a) of this Agreement are applicable to and
binding upon BTNY and all subsequent holders of the shares of Series A Preferred
Stock and Series B Preferred Stock that BTNY receives from KLM upon the exercise
of the KLM Option pursuant to the Amendment to the Stockholders' Agreement.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Closing. (a) The obligations of NWA Corp. to purchase
the Preferred Shares at the Initial Closing Date shall be subject to the
satisfaction (or waiver by NWA Corp.) of the following conditions:
(i) Representations and Warranties and Performance. The
representations and warranties of BTNY contained herein shall have been
true and correct in all material respects when made and in addition shall
be true and correct in all material respects at and as of the Initial
Closing Date with the same effect as though made at and as of the Initial
Closing Date. BTNY shall have performed in all material respects all
obligations and shall have complied in all material respects with all
covenants and other
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agreements required by this Agreement to be performed or complied with by
BTNY at or prior to the Initial Closing Date.
(ii) Officer's Certificate. NWA Corp. shall have received an
executed certificate, dated the Initial Closing Date, of a Senior Vice
President of BTNY to the effect set forth in Section 5.1(a)(i) hereto.
(iii) No Injunctions, etc. No injunction or temporary restraining
order shall have been issued and remain in force which restrains, prohibits
or invalidates the transactions contemplated by this Agreement.
(iv) Consent of Series B Preferred. The holders of all outstanding
shares of Series B Preferred Stock shall have provided their irrevocable
consent to the transactions contemplated by this Agreement, the Common
Stock Agreement, the Preferred Stock Repurchase Agreement, dated as of
September 29, 1997 (the "Preferred Stock Agreement"), between KLM and NWA
Corp., and the Xxxx Preferred Stock Repurchase Agreement, dated as of
September 29, 1997 (the "Xxxx Preferred Stock Agreement"), between Xxxx and
NWA Corp.
(v) Common Stock Purchase. The "Initial Closing Date" under and as
defined in the Common Stock Agreement shall occur concurrently with the
closing of the transactions contemplated hereby.
(b) The obligations of BTNY to sell the Preferred Shares at the Initial
Closing Date shall be subject to the satisfaction (or waiver by BTNY) of the
following conditions:
(i) Representations and Warranties and Performance. The
representations and warranties of NWA Corp. contained herein shall have
been true and correct in all material respects when made and in addition
shall be true and correct in all material respects at and as of the Initial
Closing Date with the same effect as though made at and as of the Initial
Closing Date. NWA Corp. shall have performed in all material respects all
obligations and shall have complied in all material respects with all
covenants and other agreements required by this Agreement to be performed
or complied with by NWA Corp. at or prior to the Initial Closing Date.
(ii) Officer's Certificate. BTNY shall have received an executed
certificate, dated the Initial Closing Date, of the President of NWA Corp.
to the effect set forth in Section 5.1(b)(i) hereto.
(iii) No Injunctions, etc. No injunction or temporary restraining
order shall have been issued and remain in force which restrains, prohibits
or invalidates the transactions contemplated by this Agreement.
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(iv) Consent of Series B Preferred. The holders of all outstanding
shares of Series B Preferred Stock shall have provided their irrevocable
consent to the transactions contemplated by this Agreement, the Common
Stock Agreement, the Preferred Stock Agreement and the BTNY Preferred Stock
Agreement.
(v) Common Stock Purchase. The "Initial Closing Date" under and as
defined in the Common Stock Agreement shall occur concurrently with the
closing of the transactions contemplated hereby.
ARTICLE VI
GENERAL PROVISIONS
6.1 Termination or Abandonment of Agreement. (a) This Agreement may be
terminated or abandoned at any time prior to the Initial Closing Date by mutual
consent of the parties in writing.
(b) Except for the provisions in this Article VI, in the event of any
termination of the Agreement as provided in this Section 6.1, this Agreement
shall forthwith become wholly void and of no further force and effect and there
shall be no liability on the part of NWA Corp., BTNY or their respective
directors, officers or stockholders with respect to any obligations set forth in
this Agreement; provided, however, that nothing in this Section 6.1 shall
relieve any party from liability for any breach of its representations,
warranties, covenants or agreements contained in this Agreement.
6.2 Expenses. All fees, commissions and other expenses incurred by any
party hereto in connection with the negotiation of this Agreement and the other
transactions contemplated hereby, including any fees and expenses of their
respective counsel and financial advisors, shall be borne by the party incurring
such fee or expense.
6.3 Execution in Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become a binding agreement when one or more counterparts have been
signed by each party and delivered to the other parties.
6.4 Notices. All notices, request, demands or other communications
provided herein shall be made in writing and shall be deemed to have been duly
given if delivered as follows:
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If to NWA Corp.:
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Attention: Senior Vice President, General Counsel
and Secretary
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to BTNY:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
Fax: (000) 000-0000
with a copy to:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
or to such other address as either party shall have specified by notice in
writing to the other party. All such notices, requests, demands and
communications shall be deemed to have been received on (i) the date of delivery
if sent by messenger, (ii) on the Business Day following the Business Day on
which delivered to a recognized courier service if sent by overnight courier,
(iii) on the date received, if sent by fax or (iv) on the fifth Business Day
after the mailing thereof if sent by mail.
6.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS
ENTERED INTO AND TO BE PERFORMED IN NEW YORK AND WITHOUT REGARD TO THE
APPLICATION OF PRINCIPLES OF CONFLICT OF LAWS.
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6.6 Titles and Headings. Titles and headings to Articles and Sections
herein are inserted for convenience of reference only and are not intended to be
a part of or to affect the meaning or interpretation of this Agreement.
6.7 Successors and Assigns. This Agreement shall not be assignable by
BTNY without the prior written consent of NWA Corp. or by NWA Corp. without the
prior written consent of BTNY; provided, however, that NWA Corp. may assign all
or any part of its interest in this Agreement to any of its Affiliates if such
Affiliate undertakes in writing to perform NWA Corp.'s obligations hereunder;
and provided, further, that no such assignment shall relieve NWA Corp. of its
obligations hereunder and NWA Corp. shall unconditionally guarantee the
performance by such assignee of the obligations of NWA Corp. hereunder pursuant
to a written instrument satisfactory to BTNY. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors in interest and assigns.
6.8 Entire Agreement; No Oral Waiver. This Agreement and the
certificates and other documents contemplated hereby and thereby constitute the
entire agreement among the parties pertaining to the subject matter hereof and
supersede all prior and contemporaneous agreements, understandings and
representations, whether oral or written, of the parties in connection
therewith. No covenant or condition or representation not expressed in this
Agreement shall affect or be effective to interpret, change or restrict this
Agreement. No prior drafts of this Agreement and no words or phrases from any
such prior drafts shall be admissible into evidence in any action, suit or other
proceeding involving this Agreement or the transactions contemplated hereby.
This Agreement may not be changed or terminated orally, nor shall any change,
termination or attempted waiver of any of the provisions of this Agreement be
binding on any party unless in writing signed by the parties hereto. No
modification, waiver, termination, rescission, discharge or cancellation of this
Agreement and no waiver of any provision of or default under this Agreement
shall affect the right of any party thereafter to enforce any other provision or
to exercise any right or remedy in the event of any other default, whether or
not similar.
6.9 Severability. If any provision of this Agreement shall be declared
by any court of competent jurisdiction to be illegal, void or unenforceable, all
other provisions of this Agreement shall not be affected and shall remain in
full force and effect.
6.10 No Third-Party Rights. Nothing in this Agreement, expressed or
implied, shall or is intended to confer upon any Person other than the parties
hereto or their respective successors or assigns, any rights or remedies of any
nature or kind whatsoever under or by reason of this Agreement.
6.11 Submission To Jurisdiction. Each of the parties hereto hereby
irrevocably unconditionally:
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(a) submits for itself and its property in any legal action or
proceeding relating to or arising from this Agreement, or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the United States of America sitting
in the Southern District of New York;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to its address
set forth in Section 6.4; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to
xxx in any other appropriate jurisdiction.
6.12 Remedies. Each of the parties hereto acknowledges that the rights
granted to NWA Corp. in this Agreement are of a special, unique and
extraordinary character, and that any breach of this Agreement by BTNY could not
be compensated for by damages. Accordingly, in the event of any failure or
refusal by BTNY to comply with any covenant or agreement contained in this
Agreement NWA Corp. shall be entitled, in addition to any other remedies that
NWA Corp. may have, to enforcement of this Agreement by a decree of specific
performance requiring BTNY to fulfill its obligations under this Agreement.
6.13 Brokers and Finders. Each party shall bear all costs and expenses,
and shall indemnify the other party for all costs and expenses, relating to the
retention by such party of any finder or broker in connection with the
transactions contemplated by this Agreement.
6.14 Further Assurances. From time to time, at the reasonable request
of the other party hereto and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
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IN WITNESS WHEREOF, the parties have executed, delivered and entered
into this Agreement as of the day and year first above written.
NORTHWEST AIRLINES CORPORATION
By:
Name:
Title:
By:
Name:
Title:
BANKERS TRUST NEW YORK
CORPORATION
By:
Name:
Title:
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