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EXHIBIT 99.10
REOFFER PURCHASE AGREEMENT
REOFFER PURCHASE AGREEMENT (the "Agreement"), dated as of November 15,
2000, by and between Continental Airlines, Inc., a Delaware corporation
("Continental"), 1992 Air, Inc., a Texas corporation ("1992 Air"), Northwest
Airlines Corporation, a Delaware corporation ("NAC"), Northwest Airlines
Holdings Corporation, a Delaware corporation ("NAHC"), and Air Partners, L.P., a
Texas partnership ("AP", and together with NAC and NAHC, the "Northwest
Parties").
W I T N E S S E T H:
WHEREAS, each of 1992 Air and the Northwest Parties is a party to the
Investment Agreement, dated as of January 25, 1998 (as amended, the "Investment
Agreement"), pursuant to which 1992 Air was granted certain rights of offer and
re-offer (the "Rights of Offer and Re-Offer") with respect to certain shares of
Class A Common Stock, par value $0.01 per share, of Continental ("Continental A
Stock") held by the Northwest Parties, as set forth in Section 4.1(d) of the
Investment Agreement;
WHEREAS, NAC, NAHC, AP, Northwest Airlines, Inc., a Minnesota
corporation ("NAI"), and Continental are entering into the Omnibus Agreement
dated as of the date hereof (the "Omnibus Agreement," and the transactions as
set forth therein, the "Northwest Transaction"), pursuant to which, among other
things, Continental will repurchase 6,685,279 shares of Continental A Stock
owned by NAC, NAHC and NAI for $450 million, and reclassify all remaining
outstanding Continental A Stock into Class B Common Stock, par value $0.01 per
share, of Continental ("Continental B Stock") at a ratio of 1.32 shares of
Continental B Stock per share of Continental A Stock; and
WHEREAS, in furtherance of the Northwest Transaction, Continental
desires to purchase from 1992 Air, and 1992 Air desires to sell to Continental,
the Rights of Offer and Re-Offer.
NOW, THEREFORE, in consideration of the rights and obligations
contained herein, and for other good and valuable consideration, the adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Acquisition. In reliance upon the representations,
warranties, covenants and agreements contained herein and upon the terms and
subject to the conditions hereinafter set forth, at the Closing (as defined
below), 1992 Air shall sell, assign, transfer, convey and deliver to
Continental, and Continental shall purchase, acquire and accept from 1992 Air
the Rights of Offer and Re-Offer (the "Acquisition").
Section 2. Purchase Price.
(a) The aggregate purchase price for the Rights of Offer and Re-Offer
shall, at the election of Continental, be either:
(i) U.S. $10 million in cash (the "Cash Purchase Price"); or
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(ii) that number of shares of Continental B Stock equal to the
quotient of (x) U.S. $11 million, divided by (y) the Continental Share
Value (the "Stock Purchase Price");
provided that if the Closing occurs on a date later than February 15, 2001 then
the Cash Purchase Price, if Continental elects to pay the Cash Purchase Price,
or the Stock Purchase Price, if Continental elects to pay the Stock Purchase
Price, shall be increased by an amount per annum equal to 7% of the Cash
Purchase Price or the Stock Purchase Price, as the case may be, calculated on
the basis of a 365-day year based on actual days elapsed from and including
February 16, 2001 through but excluding the Closing Date.
"Continental Share Value" shall be the volume weighted average of the closing
price of the Continental B Stock on the New York Stock Exchange (the "NYSE") for
the 20 Trading Days immediately preceding the third Business Day prior to the
Closing Date. "Trading Day" shall mean any day on which the NYSE is open for
trading. "Business Day" shall mean any day on which banking institutions in New
York, New York are not authorized or required to close.
(b) Election Notice. No later than the close of business on the third
Business Day prior to the Closing, Continental shall deliver to 1992 Air a
notice (the "Election Notice"), irrevocably electing to pay either the Cash
Purchase Price or the Stock Purchase Price; provided that, if Continental shall
elect to pay the Stock Purchase Price, the Election Notice shall also set forth
the number of shares of Continental B Stock to be issued pursuant thereto and
the amount of cash, if any, in lieu of fractional shares. If Continental shall
fail to deliver a timely Election Notice, it shall be treated for all purposes
in this Agreement as if it had elected to pay the Cash Purchase Price.
Section 3. Payment at the Closing.
(a) Cash Payment. If, pursuant to the Election Notice, Continental
elects to pay the Cash Purchase Price, Continental shall pay and deliver to 1992
Air (and/or its designee(s)) at the Closing the sum of the Cash Purchase Price
in immediately available funds by wire transfer or other means acceptable to
1992 Air to such account or accounts as 1992 Air shall specify in writing to
Continental at least one Business Day prior to the Closing.
(b) Stock Payment.
(i) Stock Issuance. If, pursuant to the Election Notice, Continental
elects to pay the Stock Purchase Price, Continental shall issue and deliver
to 1992 Air (and/or its designee(s)) certificate(s) representing the shares
of Continental B Stock constituting the Stock Purchase Price, in such
denominations and to 1992 Air or to such other person or persons as 1992
Air shall specify in writing to Continental no later than the close of
business on the second Business Day prior to the Closing (each such other
person, a "Designee").
(ii) Fractional Shares. Notwithstanding any other provision hereof, no
fractional shares of Continental B Stock will be issued in the Acquisition;
instead Continental shall pay at the Closing, in cash, the product of such
fractional share, multiplied by the Continental Share Value.
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(iii) Anti-Dilution. In the event that Continental changes the number
or classes of shares of Continental capital stock issued and outstanding
prior to the Closing as a result of a stock split, stock dividend,
recapitalization, subdivision, reclassification, combination, exchange of
shares, or other similar transaction, other than the repurchase by
Continental of the Repurchased Class A Shares and the Reclassification,
each as provided for and defined in the Omnibus Agreement (a "Continental
Capital Change"), appropriate adjustment shall be made to the Stock
Purchase Price to preserve without diminution the rights of 1992 Air. If
the record date for such a Continental Capital Change shall be prior to the
Closing but the payment date or issue date, as applicable, therefor shall
be subsequent to the Closing, Continental shall take such action as shall
be required so that on such payment date or issue date, as applicable, 1992
Air (and/or its designee(s))shall be entitled to receive such additional
Continental securities as it would have received as a result of such event
if the record date therefor had been immediately after the Closing.
Section 4. Closing Matters.
(a) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxx & Xxxxxx
L.L.P. in Houston, Texas at the Effective Time, as such term is defined in the
Omnibus Agreement, or at such other location, time and date as the parties
hereto may mutually determine and set forth in writing (the "Closing Date").
(b) Delivery at Closing. At the Closing, (i) Continental shall deliver
to 1992 Air (and/or its designees) by wire transfer, the funds in the amount of
the Cash Purchase Price, or, as the case may be, certificate(s) representing the
shares of Continental B Stock constituting the Stock Purchase Price in such
denominations and to 1992 Air or its Designee(s), as the case may be, (ii) 1992
Air shall deliver to Continental a receipt acknowledging such delivery, and
(iii) the Acquisition shall become effective.
Section 5. Suspension of the Rights of Offer and Re-Offer. In
furtherance of the Acquisition and the Northwest Transaction, 1992 Air and each
of the Northwest Parties agrees that all rights, obligations and time periods
which are part of the Rights of Offer and Re-Offer and which are triggered or
otherwise implicated as a result of the Northwest Transaction shall be suspended
solely with respect to the Northwest Transaction. This suspension shall act only
with respect to the Northwest Transaction, and shall in no way impair or
prejudice the right of 1992 Air to exercise its Rights of Offer and Re-Offer in
any other respect or as to any other matter or transaction or at any other time
prior to Closing. This suspension shall cease immediately upon the earliest to
occur of (a) any breach of this Agreement by Continental or the Northwest
Parties, and (b) upon termination of this Agreement. Notwithstanding anything in
this Section 5 to the contrary, the parties hereto agree that upon the closing
Continental will acquire all of the rights of offer and re-offer set forth in
Section 4.1(d) of the Investment Agreement, and immediately subsequent to the
effective time and without any additional consideration or any further action by
any party such rights of offer and reoffer shall terminate
Section 6. Representations and Warranties.
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(a) Continental Representations and Warranties. Continental represents
and warrants to 1992 Air and each of the Northwest Parties as follows, as of the
date of this Agreement and as of the Closing Date as though made on and as of
the Closing Date:
(i) its execution, delivery and performance of this Agreement has been
approved by its board of directors and does not violate its certificate of
incorporation or by-laws or any material agreement to which it is a party;
(ii) this Agreement constitutes a valid and binding obligation of
Continental, enforceable against Continental in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the enforcement
of creditors' rights generally and legal principles of general
applicability governing the availability of equitable remedies (whether
considered in a proceeding in equity or at law or under applicable legal
codes); and
(iii) if Continental shall elect to pay the Stock Purchase Price, all
Continental B Stock to be issued pursuant to the Acquisition, when issued,
will be duly authorized, validly issued, fully-paid and non-assessable,
free and clear of any mortgage, lien, pledge, charges, security interest,
restriction on voting or transfer or other encumbrance, subject to
restrictions imposed by applicable securities laws, and will not have been
issued in violation of or subject to any subscriptive or pre-emptive right.
(b) 1992 Air Representations and Warranties. 1992 Air represents and
warrants to Continental and each of the Northwest Parties as follows, as of the
date of this Agreement and as of the Closing Date as though made on and as of
the Closing Date:
(i) its execution, delivery and performance of this Agreement has been
approved by all necessary corporate approvals and does not violate its
constituent documents or any material agreement to which it is a party;
(ii) this Agreement constitutes a valid and binding obligation of 1992
Air, enforceable against 1992 Air in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting the enforcement of
creditors' rights generally and legal principles of general applicability
governing the availability of equitable remedies (whether considered in a
proceeding in equity or at law or under applicable legal codes);
(iii) if Continental shall elect to pay the Stock Purchase Price then
1992 Air is acquiring the Continental B Stock for its own account as
principal for investment and not with a view to resale or distribution;
1992 Air is fully aware that such securities have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), or under any
applicable state securities laws and are being offered and sold in reliance
on exemptions from the registration requirements of the Securities Act and
that such securities may not be transferred sold or disposed of by 1992 Air
absent registration under or exemption from the registration requirements
of, the Securities Act; and 1992 Air is able to bear the economic risk of
the investment and has such knowledge and experience in financial matters
and knowledge of the business of Continental as to be capable of evaluating
the merits and risks of a prospective investment; and
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(iv) 1992 Air has not assigned, transferred, waived, impaired or
otherwise encumbered the Rights of Offer and Re-Offer.
In the event that shares of Continental B Stock are to be delivered at the
Closing to Designees pursuant to Section 3(b) hereof, 1992 Air shall deliver to
Continental no later than the Closing representations and warranties of each
Designee similar in scope to the representations and warranties of 1992 Air in
Section (6)(b)(iii) hereof.
(c) Northwest Parties Representations and Warranties. Each of the
Northwest Parties represents and warrants to 1992 Air and Continental as
follows, as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date:
(i) its execution, delivery and performance of this Agreement has been
approved by all necessary corporate approvals and does not violate its
constituent documents or any material agreement to which it is a party; and
(ii) this Agreement constitutes a valid and binding obligation of such
Northwest Party, enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the enforcement
of creditors' rights generally and legal principles of general
applicability governing the availability of equitable remedies (whether
considered in a proceeding in equity or at law or under applicable legal
codes).
Section 7. No Encumbrance. 1992 Air hereby covenants and agrees, from
and after the date hereof until the Closing or earlier termination of this
Agreement, not to assign, transfer, waive, impair or otherwise encumber the
Rights of Offer and Re-Offer without the prior written consent of Continental.
Section 8. Omnibus Amendment. Continental shall notify 1992 Air in
writing promptly upon the amendment, assignment, waiver, or other modification
of the Omnibus Agreement (without regard to whether such amendment, assignment,
waiver or other modification was effected pursuant to and in accordance with the
terms of the Omnibus Agreement) made without the prior written consent of 1992
Air (an "Amendment").
Section 9. Termination.
(a) This Agreement may be terminated by 1992 Air anytime prior to
Closing following an Amendment made without the prior written consent of 1992
Air that has the effect of either directly or indirectly (i) reducing the
consideration payable to NW Parent and NW Holdings under Section 5.01(b)(ii) of
the Omnibus Agreement, (ii) reducing the number of shares of Class B Common
Stock deliverable to NW Parent and NW Holdings under Section 5.01(c)(iv) of the
Omnibus Agreement, (iii) adversely affecting the economic benefit of the
transactions contemplated by the Omnibus Agreement to the holders of Class A
Common Stock (specifically including 1992 Air and its Affiliates) other than the
Northwest Parties or their respective Affiliates (such term, when used in this
Agreement, having the meaning ascribed to such term in the Omnibus Agreement) or
(iv) reducing the consideration payable to 1992 Air under this Agreement.
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(b) This Agreement shall automatically terminate upon the termination
of the Omnibus Agreement, if prior to the Effective Time.
(c) This Agreement may be terminated by the mutual consent of the
parties hereto.
(d) This Agreement may be terminated by 1992 Air, upon a material
breach of any representation, warranty, covenant or agreement on the part of
Continental set forth in this Agreement or if any representation or warranty of
Continental shall have become untrue, in either case which breach or untruth
could reasonably be expected to have a material adverse effect on the ability of
Continental to consummate the transactions contemplated by this Agreement (a
"Terminating Continental Breach"); provided, however, that, if such Terminating
Continental Breach is curable by Continental through the exercise of its
commercially reasonable efforts and for so long as Continental continues to
exercise such reasonable efforts, 1992 Air may not terminate this Agreement
under this Section 9(d);
(e) This Agreement may be terminated by Continental, upon a material
breach of any representation, warranty, covenant or agreement on the part of
1992 Air or any of the Northwest Parties set forth in this Agreement or if any
representation or warranty of 1992 Air or any of the Northwest Parties shall
have become untrue, in either case which breach or untruth could reasonably be
expected to have a material adverse effect on the ability of 1992 Air or any of
the Northwest Parties to consummate the transactions contemplated by this
Agreement (a "Terminating 1992 Air Breach"); provided, however, that, if such
Terminating 1992 Air Breach is curable by such breaching party through the
exercise of its commercially reasonable efforts and for so long as such party
continues to exercise such reasonable efforts, Continental may not terminate
this Agreement under this Section 9(e);
(f) Upon the termination of this Agreement in accordance with the
provisions of this Section 9, this Agreement, except for Section 10(c), shall be
null and void and of no further force and effect, and no party shall have any
liability or further obligation to any other party hereunder, except that
termination shall not relieve a party from liability for any willful breach of
this Agreement.
Section 10. Indemnification
(a) To the fullest extent permitted by Law, as such term is defined in
the Omnibus Agreement, subject to the terms of Sections 10(b) and 10(c),
Continental will indemnify, defend and hold harmless 1992 Air and its respective
directors, officers, stockholders, partners, employees, agents, representatives,
successors, permitted transferees and permitted assigns, from and against all
out-of-pocket costs and expenses (including, without limitation, reasonable
legal fees and expenses incurred in connection with Claims (as defined below)),
including amounts paid to third parties (which shall be deemed to include
Continental and its Affiliates, other than the Northwest Parties, NAI and 1992
Air and their respective Affiliates) in respect of settlements or judgments
resulting from or arising in connection with claims made by holders, former
holders, beneficial owners or former beneficial owners of Equity Securities, as
such term is defined in the Omnibus Agreement, of Continental (other than the
Northwest Parties, 1992 Air. and their respective Affiliates) in their capacity
as holders of such Equity Securities, or by, on behalf of or in the name of
Continental (each, a "Claim", and collectively,
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"Claims") based upon or in connection with this Agreement or the Omnibus
Agreement or the transactions contemplated hereby or thereby; provided, however,
that Continental shall have no obligation to indemnify any party hereunder to
the extent, but only to the extent, the Claim relates to a breach by 1992 Air or
its Affiliates of this Agreement or any other agreement to which 1992 Air or its
Affiliates is a party.
(b) For purposes of this Section 10, the term "Indemnifying Party" when
used in connection with a particular Claim means Continental, which is the
person having an obligation to indemnify with respect to such Claim pursuant to
this Section 10, and the term "Indemnified Party" when used in connection with a
particular Claim means the person (whether one or more) having the right to be
indemnified with respect to such Claim pursuant to this Section 10. The
following procedures will apply to the indemnification obligations set forth in
this Agreement:
(i) Promptly after receipt of written notice of a Claim involving a
third party, the Indemnified Party against whom such Claim is asserted will
give the Indemnifying Party written notice of any such Claim; provided,
however, that any failure or delay in providing such notice to the
Indemnifying Party will not relieve the Indemnifying Party of any
obligations under this Section 10 except to the extent and only to the
extent the Indemnifying Party was actually and materially prejudiced by
such delay or failure. The Indemnifying Party will promptly designate
counsel chosen by it and reasonably acceptable to the Indemnified Party to
represent the Indemnified Party in connection with such Claim and the
Indemnifying Party will pay all costs of investigation, litigation or
arbitration incurred in connection with such Claim including, without
limitation, fees and expenses of such counsel. The Indemnifying Party will
have the right to undertake the defense, compromise or settlement of such
Claim (subject to paragraph (ii) below), and the Indemnifying Party will
not be liable for the fees or expenses of separate counsel for the
Indemnified Party, unless the employment of such counsel shall have been
authorized in writing by the Indemnifying Party in connection with the
defense of such action or the Indemnifying Party shall not have employed
counsel reasonably satisfactory to the Indemnified Party to have charge of
the defense of such action or, based upon the written advice of counsel,
the Indemnified Party shall have reasonably concluded that there may be
defenses available to it that are different from those available to the
Indemnifying Party or that a material conflict of interest or material
potential conflict of interest exists (in which case the Indemnifying Party
shall not have the right to direct the defense of such action on behalf of
the Indemnified Party), in any of which cases the reasonable fees and
expenses of counsel for the Indemnified Party shall be borne by the
Indemnifying Party and paid as incurred (it being understood, however, that
the Indemnifying Party shall not be liable for the expenses of more than
one separate counsel (other than local counsel) in any one action or series
of related actions in the same jurisdiction representing the Indemnified
Parties who are parties to such action). The Indemnified Party will use its
reasonable efforts to cooperate fully with respect to the defense of any
Claim. If after the passage of a reasonable period of time after notice of
any Claim, the Indemnifying Party has not initiated a defense against such
Claim, the Indemnified Party will have the right, upon written notice to
the Indemnifying Party, to undertake the defense, compromise or settlement
of such Claim at any time prior to settlement, compromise or final
determination thereof and any action so taken by the Indemnified Party with
regard to such defense, compromise or settlement will be deemed to be
within
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the protection afforded by this Agreement unless a court of competent
jurisdiction makes a final determination that the Indemnified Party is not
entitled to indemnification hereunder with respect to such Claim; provided,
however, that any settlement of any such Claim shall require the prior
written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed.
(ii) Anything in this Section 10(b) to the contrary notwithstanding,
the Indemnifying Party will not settle or compromise any Claim or consent
to the entry of any judgment that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to the Indemnified Party a
full, irrevocable and unconditional release from all liability in respect
of such Claim; provided that if the terms of such settlement, compromise or
judgment adversely affects any of the rights granted to such Indemnified
Party herein, in any of the Ancillary Agreements, or in the Amended and
Restated Certificate of Incorporation (such capitalized terms having the
meaning ascribed to them in the Omnibus Agreement), the Indemnifying Party
will not settle or compromise such Claim or consent to the entry of
judgment without the written consent of the Indemnified Party, which
consent shall not be unreasonably withheld or delayed. In the event that
there is more than one Indemnified Party with respect to any Claim, any
notice contemplated by this Section 10(b) to be given to the Indemnified
Party will be deemed to be given for purposes hereof if it is given to any
Indemnified Party. No Indemnifying Party shall be liable for any settlement
of any Claim effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent, the
Indemnifying Party agrees to indemnify and hold harmless any Indemnified
Party from and against any loss or liability by reason of such settlement.
(c) No party to this Agreement nor any of their respective Affiliates
or representatives shall be liable to any other party hereto or any of its
Affiliates or representatives for claims for punitive, special, exemplary,
incidental, indirect or consequential damages connected with this Agreement,
regardless of whether a claim is based on contract, tort (including negligence),
strict liability, violation of any applicable deceptive trade practices act or
similar Law or any other legal or equitable principle.
Section 11. Registration Rights. If Continental shall elect to pay the
Stock Purchase Price, then within 90 days of the Closing, Continental shall file
and use its reasonable best efforts to cause to be effective an S-3 registration
statement covering the resale of the Continental securities constituting the
Stock Purchase Price by 1992 Air, its Designees and its and their transferees
and shall use its reasonable best efforts to maintain the effectiveness of such
registration statement (subject to usual and customary limitations, including
reasonable blackouts) for a period of three years.
Section 12. Further Assurances. Each of the parties to this Agreement
will cooperate and use its reasonable efforts to take or cause to be taken all
reasonable actions, to cooperate reasonably with the other parties hereto with
respect to such actions, and to do or cause to be done all things reasonably
necessary or advisable to consummate and make effective the transactions
contemplated by this Agreement.
Section 13. General Release. 1992 Air, for itself and its Affiliates,
hereby, fully, finally, and forever releases, acquits, and discharges, the
Northwest Parties and Northwest
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Airlines, Inc., a Minnesota corporation, and the Northwest Parties, for
themselves and Northwest Airlines, Inc., hereby, fully, finally, and forever
releases, acquits, and discharges 1992 Air and its Affiliates from any and all
theories of recovery of whatever nature, whether known or now unknown, whether
past, present or future, whether contingent, prospective or matured, recognized
by the law of any jurisdiction and comprehensively includes, but is not limited
to, all causes of action, demands, claims, debts, obligations, liens, actions,
liability, suits, and judgments, whether based in contract or tort, whether
arising in equity or under the common law or any contract or under any statute
or otherwise, relating to or arising from this Agreement or the Omnibus
Agreement or the transactions contemplated hereby or thereby, other than claims
against a party arising from such party's breach of this Agreement or the
Omnibus Agreement, and from any and all declaratory or monetary elements of
relief or recovery of whatsoever nature, whether known or now unknown,
recognized by the law of any jurisdiction including, but not limited to, actual
damages of every description (whether direct, consequential, incidental or
otherwise), such as economic loss, property loss, or reputation loss; statutory,
multiple, treble, punitive or exemplary damages; attorneys' fees; prejudgment or
post judgment or other interest; equitable, declaratory or injunctive relief;
expenses; and costs of court, relating to or arising from this Agreement or the
Omnibus Agreement or the transactions contemplated hereby or thereby, other than
those arising from such party's breach of this Agreement or the Omnibus
Agreement.
Section 14. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by, and interpreted
in accordance with, the laws of the State of Delaware (regardless of the laws
that might otherwise govern under applicable principles of conflicts of law).
(b) Jurisdiction. Any judicial proceeding brought against any of the
parties hereto with respect to this Agreement shall be brought in the United
States District Court for the District of Delaware irrespective of where such
party may be located at the time of such proceeding, and by execution and
delivery of this Agreement, each of the parties hereto hereby consents to the
exclusive jurisdiction of such court and waives any defense or opposition to
such jurisdiction.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same document.
(d) Assignment; No Third-Party Beneficiaries; Amendment. Neither this
Agreement, nor any of the rights, interests or obligations shall be assigned by
any of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other party. This Agreement is binding upon and for
the sole benefit of the parties hereto and their respective successors and
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
(e) Waiver. Failure by any party to take action against another in case
of the others noncompliance with obligations or conditions set forth in this
Agreement shall not be interpreted as a waiver for a subsequent noncompliance of
the same or other obligations or
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conditions. No waiver shall be deemed to have been made by any party of any of
its rights under this Agreement unless the same is in writing and is signed on
its behalf by its authorized representative. Any such waiver shall constitute a
waiver only with respect to the specific matter described in such writing and
shall in no way impair the rights of the party granting such waiver in any other
respect or at any other time.
(f) Interpretation. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation". Any reference to "herein" or
"hereof" or similar terms shall refer to the agreement as a whole rather than to
the individual paragraph or section.
(g) Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as it is enforceable.
(h) Specific Performance. The parties hereby acknowledge and agree that
the failure of any party to this Agreement timely to perform its agreements and
covenants hereunder will cause substantial and irreparable injury to the other
parties to this Agreement for which damages, even if available, will not be an
adequate remedy. Accordingly, each of the parties hereto hereby consents to the
granting of equitable relief (including specific performance and injunctive
relief) by any court having jurisdiction over the matter to enforce any party's
obligations hereunder. The parties further agree to waive any requirement for
the securing or posting of any bond in connection with the obtaining of any such
equitable relief, and that this Section 14(h) is without prejudice to any other
rights that the parties hereto may have for any failure to perform this
Agreement. The parties further agree not to assert in any proceeding that
grounds for any equitable relief are not satisfied. The parties acknowledge that
because the obligations imposed on them in this Agreement are special, unique
and of an extraordinary character, the making available of equitable remedies
(including specific performance and injunctive relief) in this Agreement was a
condition to each party's entering into this Agreement.
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(i) Notices. All notices, requests and other communications hereunder
to a party shall be in writing and shall be deemed given (x) upon delivery if
personally delivered or (y) three Business Days after being mailed by registered
or certified mail (return receipt requested) or (z) one Business Day after being
delivered by overnight courier or by facsimile (with confirmation) to such party
at its address or facsimile set forth below or such other address or facsimile
as such party may specify by notice to the parties hereto.
If to Continental:
Continental Airlines Inc.
0000 Xxxxx Xxxxxx
Xxxx. XXXXX
Xxxxxxx, Xxxxx 00000
Attention: General Counsel and Chief Financial Officer
Facsimile: (000) 000-0000
If to 1992 Air:
1992 Air, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxx X. X'Xxxxx
Facsimile (000) 000-0000
If to the Northwest Parties:
Northwest Airlines Corporation
0000 Xxxxxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement executed on behalf of the parties
hereto by their respective duly authorized officers, all as of the date first
above written.
1992 AIR, INC., a Texas Corporation
By:_________________________________________
Name:
Title:
CONTINENTAL AIRLINES, INC.
By:_________________________________________
Xxxxxxx X. Xxxxxx
Executive Vice President, General Counsel
and Secretary
NORTHWEST AIRLINES CORPORATION
By:_________________________________________
Xxxxxxx X. Xxxxxxxxx
Executive Vice President, General Counsel
and Secretary
NORTHWEST AIRLINES HOLDINGS CORPORATION
By:_________________________________________
Xxxxxxx X. Xxxxxxxxx
Executive Vice President, General Counsel
and Secretary
AIR PARTNERS L.P.
By NORTHWEST AIRLINES CORPORATION,
its General Partner
By:______________________________________
Name:
Title:
[SIGNATURE PAGE TO REOFFER PURCHASE AGREEMENT]
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