Exhibit 10.4
PREFERRED STOCK REPURCHASE AGREEMENT dated as of September 29, 1997
between NORTHWEST AIRLINES CORPORATION, a Delaware corporation ("NWA CORP."),
and KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N.V., a Netherlands corporation ("KLM").
W I T N E S S E T H :
WHEREAS, on the date hereof, KLM owns (i) 1,308.8 shares of NWA
Corp.'s Series A Preferred Stock, par value $.01 per share (the "SERIES A
PREFERRED STOCK"), (ii) 436.2 shares of NWA Corp.'s Series B Preferred Stock,
par value $.01 per share (the "SERIES B PREFERRED STOCK"), and (iii) 21,684,099
shares of NWA Corp.'s Class A Common Stock, par value $.01 per share (the "CLASS
A COMMON STOCK", and together with NWA Corp.'s Class B Common Stock, par value
$.01 per share (the "CLASS B COMMON STOCK"), the "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), KLM will exercise its right to purchase, and will
purchase, pursuant to Section 17 of the Stockholders' Agreement (as hereinafter
defined), 3,293,775 additional shares of Class A Common Stock in exchange for
818.0003 shares of Series A Preferred Stock and 272.6251 shares of Series B
Preferred Stock, following which purchase KLM will own 490.7997 shares of Series
A Preferred Stock (the "SERIES A PREFERRED SHARES") and 163.5749 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, KLM wishes to sell to NWA Corp., and NWA Corp. wishes to purchase from
KLM 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 Preferred Stock Repurchase Agreement, as
amended, supplemented or otherwise modified from time to time in accordance
with its terms.
"ALLIANCE IMPLEMENTATION AGREEMENT" means a definitive agreement with
respect to commercial cooperation that is entered into by KLM and Northwest
Airlines, Inc. at the Initial Closing Date.
"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 with
respect to the other Option Stockholders and the termination of the Put
Option (as each such term is defined in the Stockholders' Agreement) with
respect to 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.
"ANCILLARY AGREEMENTS" means the Common Stock Agreement, the Amendment
to the Stockholders' Agreement and the Standstill Agreement.
"BENEFICIALLY OWN" has the meaning given such term in Rule 13d-3 under
the Exchange Act, as in effect on the date hereof. As used herein, the
phrases "BENEFICIAL OWNERSHIP" and "BENEFICIAL OWNER" have correlative
meanings.
"XXXX" means Xxxxxxx X. Xxxx Associates - NWA Partners, L.P.
"BOARD OF DIRECTORS" means the board of directors of NWA Corp. or any
successor corporation.
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"BTNY" means Bankers Trust New York 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
Amsterdam, The Netherlands, 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.
"CREDIT AGREEMENT" means the Credit Agreement dated as of December 15,
1995 and as amended and restated as of December 16, 1996 among NWA Corp.,
NWA, Inc., Northwest Airlines, Inc., ABN Amro Bank N.W., as Compliance
Agent, Bankers Trust Company, as Administrative Agent, Chase Securities
Inc., as Syndication Agent, Citibank, N.A., as Documentation Agent,
National Westminster Bank PLC and First Bank National Association, as
Agents, and various lending institutions parties thereto, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms and any extensions, refinancings or replacements thereof.
"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; 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.
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"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.
"STANDSTILL AGREEMENT" means an agreement, in the form of Exhibit C to
the Common Stock Agreement, to be entered into by KLM and NWA Corp. at the
Initial Closing Date.
"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
and certain other stockholders of NWA Corp. parties thereto, as in effect
on the date hereof.
"SUPERVISORY BOARD OF KLM" means the supervisory board of KLM or any
successor corporation.
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) KLM agrees to
transfer, assign and deliver to NWA Corp., against payment by NWA Corp. to KLM
of immediately available funds in an amount equal to the aggregate Liquidation
Preference for 490.7997 shares of Series A Preferred Stock (the "SERIES A
PURCHASE PRICE"), a certificate or certificates representing the 490.7997 shares
of Series A Preferred Stock, and NWA Corp. agrees to purchase such shares and
make such payment to KLM against delivery of such certificates on such Initial
Closing Date, and (ii) KLM agrees to transfer, assign and deliver to NWA Corp.,
against payment by NWA Corp. to KLM of immediately available funds in an amount
equal to the aggregate Liquidation Preference for 163.5749 shares of Series B
Preferred Stock (the "SERIES B PURCHASE PRICE"), a certificate or certificates
representing 163.5749 shares of Series B Preferred Stock, and NWA Corp. agrees
to purchase such shares and make such payment to KLM 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.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF KLM. KLM represents and
warrants to NWA Corp. as of the date hereof and as of the Initial Closing Date
as follows:
(a) KLM is a corporation duly organized and validly existing under the
laws of The Netherlands.
(b) KLM has all requisite corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The
execution and delivery by KLM of this Agreement and the performance of the
transactions herein contemplated to be performed by KLM have been duly
authorized by the Supervisory Board of KLM and no further corporate action
on the part of KLM is necessary to authorize this Agreement and the
performance of such transactions. This Agreement has been duly executed
and delivered by KLM and, assuming due authorization, execution and
delivery by NWA Corp., constitutes the legal, valid and binding agreement
of KLM, enforceable against KLM 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 KLM of the transactions contemplated hereby will (i) violate
or conflict with any of the provisions of the charter or other
organizational documents of KLM, (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 KLM is a party
or by which any of its property is bound or (iii) result in the creation of
any liens, encumbrances, equities or claims upon any of (A) the shares of
Series A Preferred Stock or Series B Preferred Stock currently owned by it
(except as contemplated by the exercise of the KLM Option pursuant to the
Amendment to the Stockholders' Agreement) or (B) shares of Common Stock
currently owned by it or to be acquired by it upon exercise of the KLM
Option other than liens, encumbrances, equities or claims upon shares
pursuant to the Common Stock 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 KLM of
this Agreement and the consummation of the transactions contemplated
hereby.
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(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 KLM, threatened against
KLM, and KLM 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 KLM to consummate the transactions contemplated hereby.
(f) KLM has, and on the Initial Closing Date KLM 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, except any Liens created
pursuant to the terms of this Agreement.
(g) KLM is the record and beneficial owner on the date hereof of
1,308.8 shares of Series A Preferred Stock, 436.2 shares of Series B
Preferred Stock and 21,684,099 shares of Common Stock, and upon exercise of
the KLM Option pursuant to the Amendment to the Stockholders' Agreement,
KLM will be the record and beneficial owner of 490.7997 shares of Series A
Preferred Stock, 163.5749 shares of Series B Preferred Stock and 24,977,874
shares of Common Stock. KLM does not own of record or beneficially or
otherwise have the right to acquire any other shares of any series of
common or preferred capital stock of NWA Corp., other than pursuant to the
Stockholders' Agreement.
(h) Neither KLM 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 KLM in connection with the transactions
contemplated by this Agreement.
3.2 REPRESENTATIONS AND WARRANTIES OF NWA CORP. NWA Corp. represents
and warrants to KLM 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 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 of NWA Corp.
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 KLM, 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
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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.
(g) Performance by the parties of the transactions referred to herein
or contemplated hereby (including KLM's exercise pursuant to Section 17 of
the Stockholders' Agreement of its right to purchase 3,293,775 additional
shares of Class A Common Stock, and the purchase of such shares) will not
cause KLM to become an "Acquiring Person" for purposes of, and as such term
is defined in, the Rights Agreement of NWA Corp. dated as of November 16,
1995, as amended (the "RIGHTS AGREEMENT").
(h) The "capital" of NWA Corp. is not "impaired" and will not become
"impaired" as a result of the purchase of the Preferred Shares from KLM by
NWA Corp. on the Initial Closing Date, within the meaning of Section
160(a)(1) of the Delaware General Corporation Law, as amended.
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ARTICLE IV
CONDITIONS PRECEDENT
4.1 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 KLM contained herein and in the Ancillary
Agreements 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. KLM 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
and each Ancillary Agreement to be performed or complied with by KLM at or
prior to the Initial Closing Date.
(ii) COMMON STOCK AGREEMENT CONDITIONS. All the conditions to closing
in Sections 5.1(a)(ii) through (vii) and (ix) of the Common Stock Agreement
shall have been satisfied (or waived by NWA Corp.).
(iii) 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 KLM to sell the Preferred Shares at the Initial
Closing Date shall be subject to the satisfaction (or waiver by KLM) of the
following conditions:
(i) REPRESENTATIONS AND WARRANTIES AND PERFORMANCE. The
representations and warranties of NWA Corp. contained herein and in the
Ancillary Agreements 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 and each Ancillary Agreement to be
performed or complied with by NWA Corp. at or prior to the Initial Closing
Date.
(ii) COMMON STOCK AGREEMENT CONDITIONS. All the conditions to closing
in Sections 5.1(b)(ii) through (iv) and (vi) through (ix) of the Common
Stock Agreement shall have been satisfied (or waived by KLM).
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(iii) 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 V
WITHHOLDING TAXES
5.1 UNITED STATES FEDERAL WITHHOLDING TAXES. (a) NWA Corp. hereby
agrees that it will only deduct and withhold United States federal income taxes
imposed under Sections 881(a) and 1442 of the Internal Revenue Code of 1986, as
amended (the "CODE") (or any similar successor provisions), ("UNITED STATES
WITHHOLDING TAXES") from the Series A Purchase Price and the Series B Purchase
Price an amount equal to 5% of the amount of such payments that constitutes
accrued dividend income under Section 305(c) of the Internal Revenue Code of
1986, as amended, or analogous provisions.
(b) Except to the extent provided in Section 5.1(c) below, NWA Corp.
hereby agrees to indemnify and hold harmless KLM from and against any United
States Withholding Taxes that are imposed on KLM on or in respect the Series A
Purchase Price and/or the Series B Purchase Price to the extent that such taxes
are imposed on KLM solely as a result of NWA Corp.'s repurchase of NWA Corp.
stock from any person other than KLM.
(c) Prior to NWA Corp.'s payment of such amounts, KLM will deliver to
NWA Corp. an Internal Revenue Service Form 1001 evidencing that it is entitled
to the benefits of the income tax treaty between the Kingdom of The Netherlands
and the United States. KLM also agrees to furnish, to the extent it is legally
entitled to do so, NWA Corp. with such documents and certificates as NWA Corp.
may reasonably request in connection with obtaining a reduction in, or exemption
from, the payment of United States federal income withholding taxes imposed on
or with respect to the Series A Purchase Price or the Series B Purchase Price.
NWA Corp. shall have no obligation to indemnify or hold harmless KLM for any
United States Withholding Taxes (i) actually withheld by NWA Corp. pursuant to
Section 5.1(a) above, or (ii) described in Section 5.1(b) above, to the extent
that such taxes are imposed on KLM as a result of KLM's failure to provide any
form, document or certificate required to be provided by KLM in accordance with
this Section 5.1(c).
(d) KLM hereby agrees to indemnify and hold harmless NWA Corp. from
and against any United States Withholding Taxes imposed on NWA Corp. in respect
of any payments made by NWA Corp. to KLM in respect of the Series A Preferred
Shares and/or the Series B Preferred Shares to the extent that such taxes would
not have been imposed but for KLM's acquisition of additional shares of NWA
Corp. stock and/or the attribution of ownership of any NWA Corp. stock to KLM
under Section 318 of the Code (or any similar successor provision). If KLM's
(including its Affiliates) ownership of NWA Corp. stock for purposes of Section
318 of the Code is accurately described in this Agreement and the
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Common Stock Agreement, then NWA Corp. acknowledges that it will have no
indemnity claim against KLM pursuant to this Section 6.1(d) with respect to the
attribution of ownership of any NWA Corp. stock to KLM under Section 318 of the
Code.
(e) KLM hereby represents and warrants that it is entitled to the
benefits of the income tax treaty between the Kingdom of the Netherlands and the
United States and that, under such treaty, KLM is entitled to a reduction from
30% to 5% in the rate at which United States Withholding Tax is imposed on any
dividends received by KLM from NWA Corp. Without limiting NWA Corp.'s indemnity
obligations set forth in Section 5.1(b) above, in the event that this
representation is not correct, NWA Corp. will have no indemnity obligation to
KLM in respect of the United States Withholding Taxes described in Section
5.1(a) above.
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. or KLM 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, the
Ancillary Agreements 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 KLM:
Xxxxxxxxxxx Xxxxxxxxxx Xxxxxxxxxxxx X.X.
Xxxxxxxxxxxxxx 00
1192 G P Amstelveen
The Netherlands
Attention: Senior Vice President and General
Counsel
Fax: 000-0000-000-0000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
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 or
(iii) on the date received, if sent by fax.
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
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AND TO BE PERFORMED IN NEW YORK AND WITHOUT REGARD TO THE APPLICATION OF
PRINCIPLES OF CONFLICT OF LAWS.
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
KLM without the prior written consent of NWA Corp. or by NWA Corp. without the
prior written consent of KLM; 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 KLM. 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
Ancillary Agreements 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.
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6.11 SUBMISSION TO JURISDICTION. Each of the parties hereto hereby
irrevocably unconditionally:
(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 KLM could not
be compensated for by damages. Accordingly, in the event of any failure or
refusal by KLM 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 KLM 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.
-13-
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: /s/Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx
President and Chief
Executive Officer
By: /s/Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxxx X Xxxxxxxxx
Senior Vice President,
General Counsel and Secretary
KONINKLIJKE LUCHTVAART
MAATSCHAPPIJ N.V.
By: /s/X.X. van Wijk
-------------------------------------
X.X. van Wijk
President and Chief
Executive Officer
By: /s/R.J.N. Xxxxxxxxxx
-------------------------------------
R.J.N. Xxxxxxxxxx
Managing Director and
Chief Financial Officer
