____________________________________
ACCELERATED COMMON STOCK
REPURCHASE AGREEMENT
BETWEEN
NORTHWEST AIRLINES CORPORATION
AND
KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N.V.
DATED AS OF MAY 1, 1998
____________________________________
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
DELIVERY AND PURCHASE OF SHARES . . . . . . . . . . . . 4
2.1 Purchase and Sale of Shares. . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Effect of Control Transaction. . . . . . . . . . . . . . . . . . . . . . 5
2.3 Effect of Certain Issuances of Common Stock. . . . . . . . . . . . . . . 7
2.4 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . 7
3.1 Representations and Warranties of KLM. . . . . . . . . . . . . . . . . . 7
3.2 Representations and Warranties of NWA Corp . . . . . . . . . . . . . . . 9
ARTICLE IV
COVENANTS. . . . . . . . . . . . . . . . . . 11
4.1 No Transfers, Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2 Antitrust Immunity and European Community Conditions . . . . . . . . . . 11
4.3 No Stock Splits, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.4 Transfer Restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.5 Ancillary Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.6 Northwest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
CONDITIONS PRECEDENT. . . . . . . . . . . . . . . 12
5.1 Conditions to the Closing. . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VI
WITHHOLDING TAXES. . . . . . . . . . . . . . . . 14
6.1 United States Federal Withholding Taxes. . . . . . . . . . . . . . . . . 14
-i-
Page
----
ARTICLE VII
GENERAL PROVISIONS . . . . . . . . . . . . . . . 15
7.1 Termination or Abandonment of Agreement. . . . . . . . . . . . . . . . . 15
7.2 Effect on the Original Repurchase Agreement. . . . . . . . . . . . . . . 15
7.3 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.4 Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 16
7.5 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.7 Titles and Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.8 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.9 Entire Agreement; No Oral Waiver . . . . . . . . . . . . . . . . . . . . 18
7.10 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.11 No Third-Party Rights . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.12 Submission To Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . 18
7.13 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.14 Brokers and Finders . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.15 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.16 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
EXHIBITS
Exhibit A Form of Northwest Airlines Corporation Common Stock Option
Agreement
Exhibit B Form of Amended and Restated Standstill Agreement
Exhibit C-1 Form of Note 1
Exhibit C-2 Form of Note 2
Exhibit C-3 Form of Note 3
Exhibit D Form of Investment Representation Letter
-ii-
ACCELERATED COMMON STOCK REPURCHASE AGREEMENT
ACCELERATED COMMON STOCK REPURCHASE AGREEMENT dated as of May 1, 1998
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, NWA Corp. and KLM are parties to a Common Stock Repurchase
Agreement dated as of September 29, 1997, as amended (the "ORIGINAL REPURCHASE
AGREEMENT");
WHEREAS, pursuant to the Original Repurchase Agreement, on September
29, 1997 NWA Corp. repurchased from KLM 6,800,000 shares of NWA Corp.'s Class A
Common Stock, par value $.01 per share (the "Class A Common Stock"), and agreed
to repurchase from KLM an additional 18,177,874 Shares (as defined below) over
the next three years; and
WHEREAS, the parties wish to accelerate to the Closing Date specified
herein the repurchase by NWA Corp. from KLM of such additional 18,177,874
Shares;
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. Terms not otherwise defined herein shall 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 Accelerated Common Stock Repurchase Agreement,
as amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"ALLIANCE IMPLEMENTATION AGREEMENT" means the definitive agreement
with respect to commercial cooperation that was entered into by KLM and
Northwest Airlines, Inc. on September 29, 1997.
2
"ANCILLARY AGREEMENTS" means the Standstill Agreement Amendment and
the Option 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.
"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
Amsterdam, The Netherlands, in New York, New York or in Minneapolis,
Minnesota.
"CASH" means Dollars paid in immediately available funds.
"CHANGE OF CONTROL" means the acquisition by any Person or group
(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act, or any successor provision), including any group acting for the
purpose of acquiring, holding or disposing of securities (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single
transaction or in a related series of transactions, of 50% or more of the
combined voting power of the outstanding shares of Common Stock, NWA
Corp.'s Series C Preferred Stock, par value $.01 per share (the "SERIES C
PREFERRED STOCK"), and any other equity securities then outstanding and
entitled to vote with the Common Stock.
"CLOSING DATE" means May 1, 1998 or such earlier date as NWA Corp. and
KLM shall mutually agree. If the Closing Date falls on a date that is not
a Business Day, such Closing Date shall occur on the next succeeding
Business Day.
"COMMON STOCK" means NWA Corp.'s Common Stock, par value $.01 per
share (into which the Class A Common Stock heretofore held by KLM has been
reclassified on a share for share basis), or any common stock into which
the Common Stock of NWA Corp. may be converted by way of a merger pursuant
to Section 251(g) of the General Corporation Law of Delaware (the "DGCL").
"CONTROL TRANSACTION" means any of the following, but no other
transaction or event: (i) the closing of a tender offer subject to Section
14(d)(1) of the Exchange Act for shares of Common Stock (or any other class
of capital stock of NWA Corp.) or a registered exchange offer made pursuant
to an effective registration statement for shares of Common Stock (or any
other class of capital stock of NWA Corp.) which results in 50% or more of
the combined voting power of the outstanding shares of Common Stock, Series
C Preferred Stock, and any other equity securities then outstanding and
entitled to vote with the Common Stock being held by the Person or group
(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act, or any successor provision) making such tender or exchange offer, (ii)
the closing of any merger or consolidation that results in a Change of
Control, or (iii) the closing
3
of any transaction in which NWA Corp. or Northwest Airlines, Inc.
directly or indirectly sells all or substantially all of its business,
property or assets; PROVIDED, in order to constitute a Control
Transaction any such transaction must be consummated prior to June 30,
1999. For purposes of calculating the "Transactional Value Per Share"
pursuant to Section 2.2 in connection with a Control Transaction, such
Control Transaction shall be deemed to include all transactions that are
part of a series of related transactions that comprise such Control
Transaction (e.g., a tender offer or exchange offer followed by a
back-end merger shall be considered as a single Control Transaction
comprised of two related transactions), PROVIDED, that, for purposes of
Section 2.2, such Control Transaction shall be deemed to have been
consummated upon the consummation of the particular transaction with
respect to which the applicable criteria as described above are first
satisfied.
"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).
"OPTION AGREEMENT" means the Northwest Airlines Corporation Stock
Option Agreement dated as of the Closing Date by and between NWA Corp. and
KLM substantially in the form of Exhibit A hereto.
"ORIGINAL PER SHARE PRICE" means (a) $42.867625 with respect to the
4,900,000 Shares referred to in Section 2.1(a)(i), (b) $45.752659 with
respect to the 3,222,539 Shares referred to in Section 2.1(a)(ii), and (c)
$48.831858 with respect to the 10,055,335 Shares referred to in Section
2.1(a)(iii).
"ORIGINAL REPURCHASE DATE" means (a) September 29, 1998 with respect
to the 4,900,000 Shares referred to in Section 2.1(a)(i), (b) September 29,
1999 with respect to the 3,222,539 Shares referred to in Section
2.1(a)(ii), and (c) September 29, 2000 with respect to the 10,055,335
Shares referred to in Section 2.1(a)(iii).
"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.
A "SHARE" means, as of the date hereof, one share of Common Stock and
thereafter shall consist of such share and/or any cash, securities or other
property into which such share (or such cash, securities or other property)
shall have been converted into, exchanged for or acquired for (whether by
means of an exchange offer, liquidation, tender offer, consolidation,
merger, combination, reclassification,
4
recapitalization, stock split, reverse stock split, stock dividend or
otherwise), and any and all amounts paid in respect of such shares or
other cash, securities or other property, as the case may be, or which
such shares or other cash, securities or other property are otherwise
entitled to receive (whether by means of a dividend, distribution,
interest payment or otherwise), in any event net of any applicable U.S.
withholding taxes payable in respect thereof. In the event any cash is
received at any time or from time to time in respect of a Share, such
share shall also be deemed to include interest earned on such cash
received at the rate per annum equal to the average of the offered rates
for Dollar deposits having a maturity of three months that appear on the
display designated as Page 3750 on the Telerate System Incorporated
Service (or such other page as may replace such page on such service for
the purpose of displaying the rates at which Dollar deposits are offered
by leading banks in the London interbank deposit market) at
approximately 11:00 a.m., London time, on the date such cash is
initially received (and which rate is reset every three months
thereafter), compounded quarterly, in any event net of any applicable
U.S. withholding taxes payable in respect thereof.
"STANDSTILL AGREEMENT" means the Standstill Agreement, dated as of
September 29, 1997, by and between KLM and NWA Corp. executed pursuant to
the Original Repurchase Agreement.
"STANDSTILL AGREEMENT AMENDMENT" means the amendment to the Standstill
Agreement to be dated as of the Closing Date, substantially in the form of
Exhibit B hereto.
"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. (a) CLOSING DATE. On the terms and
subject to the conditions of this Agreement, on the Closing Date, KLM agrees to
transfer, assign and deliver to NWA Corp. the following:
(i) 4,900,000 Shares against delivery by NWA Corp. of a duly
executed promissory note payable to the order of KLM
issued by Northwest Airlines, Inc. ("NORTHWEST") and
guaranteed by NWA Corp., dated the Closing Date and
substantially in the form of Exhibit C-1 hereto
("NOTE 1"), in the aggregate principal amount (assuming
a May 1, 1998 Closing Date) of $205,976,702.92;
(ii) 3,222,539 Shares against delivery by NWA Corp. of a
duly executed promissory note payable to the order
of KLM issued by Northwest and guaranteed by NWA Corp.,
dated the Closing Date and substantially in
5
the form of Exhibit C-2 hereto ("NOTE 2"), to KLM in the
aggregate principal amount (assuming a May 1, 1998 Closing
Date) of $137,694,888.24; and
(iii) 10,055,335 Shares against the delivery by NWA Corp. of (1)
$101,482,254.42 in Cash, representing the proceeds to be
received by Northwest on the Closing Date from the sale on
the Closing Date of one or more duly executed promissory
notes payable to the order of Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A. ("Rabobank") issued by
Northwest and guaranteed by NWA Corp., dated the Closing
Date and substantially in the form of Exhibit C-3 hereto in
the aggregate principal amount of $100,000,000 ("NOTE 3",
and collectively with Note 1 and Note 2, the "NOTES"), and
(2) $336,730,772.35 in Cash (assuming a May 1, 1998 Closing
Date);
comprised of a certificate or certificates representing 18,177,874 Shares, and
NWA Corp. agrees to purchase such Shares and make such payment to KLM against
delivery of such certificates on the Closing Date. The certificates
representing such Shares shall be duly endorsed in blank or accompanied by stock
powers duly executed in blank, with all necessary stock transfer stamps affixed.
In the event Rabobank fails to deliver to NWA Corp. on the Closing Date the
amount described in clause (iii)(1) above, NWA Corp. may, in full satisfaction
of its payment obligation under said clause (iii)(1), deliver to KLM Note 3
which would have otherwise been delivered to Rabobank had such payment been made
by Rabobank.
(b) CHANGE IN CLOSING DATE AND ACCRETION ADJUSTMENT. In the event
the Closing Date occurs other than on May 1, 1998 for any reason, the aggregate
principal amount of Note 1 and Note 2 and the Cash purchase price for the Shares
described in Section 2.1(a)(iii)(2) will be higher or lower than the amount
indicated in paragraph (a) above based on a 5% per annum accretion factor.
(c) CLOSING. The closing of the purchases and sales contemplated by
Section 2.1(a) of this Agreement will take place at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ at 10:00 a.m. New York City time on the Closing Date.
2.2 EFFECT OF CONTROL TRANSACTION. (a) NWA Corp. will notify KLM as
promptly as practicable of the pendency of any transaction that is reasonably
likely to constitute a Control Transaction; PROVIDED, that NWA Corp. shall not
be obligated to so notify KLM prior to such transaction having been publicly
announced (except as otherwise specifically provided for in the Standstill
Agreement). Additionally, upon the consummation of a Control Transaction, NWA
Corp. will on the date of such consummation notify KLM thereof.
(b) In connection with any Control Transaction consummated prior to
June 30, 1999, there shall be a determination of the Transactional Value Per
Share. NWA Corp. shall notify KLM as promptly as practicable of its good faith
estimate of the Transactional Value Per Share, but in no event later than 20
days prior to the date any payment is required to be
6
made pursuant to subsection (d) below. The "TRANSACTIONAL VALUE PER SHARE"
is the weighted average consideration to be received in respect of each Share
transferred or sold in, or otherwise receiving a distribution in connection
with, such Control Transaction, valued, (i) in the case of cash, at the face
amount thereof, (ii) in the case of securities registered under the Exchange
Act and as to which there is a previously established public trading market,
(A) if such security is listed on the New York Stock Exchange or American
Stock Exchange, the average of the closing prices during the ten trading days
immediately prior to the date of consummation thereof or (B) if such security
is included in the NASDAQ National Market System, the weighted average price
at which all trades of such securities are reported on the NASDAQ National
Market System during the ten trading days immediately prior to the date of
consummation thereof, (iii) in the case of securities as to which there is a
previously established public trading market on a non-U.S. exchange or
automated quotation system, the average of the closing price (if quoted in a
foreign currency, converted into Dollars at the then-prevailing market Dollar
exchange rate) during the ten trading days immediately prior to the date of
consummation thereof, and (iv) in the case of other securities or property,
at the fair market value thereof established in accordance with Section
2.2(c) as of the date of consummation thereof.
(c) NWA Corp. and KLM will attempt to agree on the value of securities
or other property described in clause (iv) of paragraph (b) above. If they
cannot reach agreement within 15 days after the definitive terms of the Control
Transaction have been publicly announced or, if earlier, 15 days after notice to
KLM, NWA Corp. and KLM will each promptly engage an investment banking firm to
perform valuations of such securities or other property and to attempt to agree
on their value. If such firms are unable to agree on a valuation within 10 days
after they have both been so engaged, such firms shall promptly jointly select a
third nationally recognized investment banking firm to perform its own valuation
of such securities or other property, which valuation shall be determinative.
(d) If such Transactional Value Per Share (as finally determined in
accordance with this Section 2.2) is higher than the Original Per Share Price
for any Shares referenced in Section 2.1(a) whose Original Repurchase Date is a
date occurring after the consummation of such Control Transaction (Shares
fitting such description being referred to as "AFFECTED SHARES"), then NWA Corp.
will make a payment to KLM in respect of the Affected Shares equal to the
product of (A) the number of such Affected Shares times (B) the excess of (x)
the Transactional Value Per Share over (y) the Original Per Share Price for such
Affected Shares. Such payment shall be made on the date of consummation of such
Control Transaction or as promptly as practicable thereafter. No payment shall
be made in respect of any Shares whose Original Repurchase Date is a date
occurring prior to the date of consummation of the Control Transaction or whose
Original Repurchase Price is greater than the Transactional Value Per Share.
Notwithstanding the foregoing, in no event shall any such payment be made in
respect of any Shares as to which KLM has exercised its option to acquire the
corresponding Shares pursuant to the Option Agreement.
(e) Notwithstanding anything to the contrary in this Agreement or the
Option Agreement, if a Control Transaction involves a transaction where part of
the transaction consideration consists of securities or other property, then at
its option KLM, upon written notice delivered to NWA Corp. no later than 10
Business Days after final determination of
7
the Transactional Value Per Share pursuant to this Section 2.2, may
irrevocably waive, with respect to the resulting Affected Shares, if any,
KLM's right to receive the payment otherwise required to be made by NWA Corp.
to KLM pursuant to Section 2.2(d) in respect of such Affected Shares, in
which case such Control Transaction will not cause any change in the
applicable price of, any adjustment to, or any termination of, any Option
pursuant to any of Sections 1.1(c), 1.1(d), 1.2(c), 1.3(a)(i), 1.3(a)(ii) or
1.3(a)(iii) of the Option Agreement.
2.3 EFFECT OF CERTAIN ISSUANCES OF COMMON STOCK. If after September
29, 1997 and prior to September 29, 1998, NWA Corp. or its successor issues new
shares of common stock in one or more primary offerings for cash at a weighted
average offering price in excess of any of the respective Original Per Share
Prices, then on the Original Repurchase Date for Shares whose Original Per Share
Price is less than such weighted average price, NWA Corp. will make a payment to
KLM equal to the product of (A) the number of Shares to which such Original
Repurchase Date relates, times (B) the excess of such higher weighted average
price over such Original Per Share Price; PROVIDED, no such payment shall be
required to be made if the aggregate number of shares of common stock offered in
such primary offerings during such one-year period is less than 6,550,851 shares
(as appropriately adjusted in respect of stock splits, subdivisions and
combinations); PROVIDED, FURTHER, that for purposes of this Section 2.3, the
issuance of Common Stock upon the exercise of employee stock options shall not
constitute a primary offering.
2.4 TAXES. NWA Corp. shall indemnify and hold harmless KLM, on an
after-tax basis, from any taxes imposed under the laws of The Netherlands in
respect of a payment made to KLM pursuant to Section 2.2(d) or 2.3 which would
not have been imposed had the purchase and sale of Shares occurred on the
Original Repurchase Dates in accordance with the Original Repurchase Agreement.
KLM will seek indemnity under this Section 2.4 only after attempting in good
faith and failing to achieve the same consequences under the tax laws of The
Netherlands for a payment made to KLM pursuant to Section 2.2(d) or 2.3 as the
tax consequences that apply to consideration received by KLM under Section 2.1.
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 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 the Ancillary Agreements and to perform its
obligations hereunder and thereunder. The execution and delivery by KLM of
this Agreement and the Ancillary Agreements and the performance of the
transactions herein and therein 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
8
authorize this Agreement or the Ancillary Agreements and the performance
of such transactions. Each of this Agreement and the Ancillary
Agreements 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
Ancillary Agreements nor the performance by KLM of the transactions
contemplated hereby or thereby 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 the Shares currently owned by it other than pursuant to
this 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 currently necessary for the execution, delivery and performance
by KLM of this Agreement or the Ancillary Agreements and the consummation
of the transactions contemplated hereby and thereby.
(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 and by
the Ancillary Agreements.
(f) KLM has, and on the Closing Date KLM will have, good and valid
title to the Shares to be purchased by NWA Corp. on the Closing Date, free
and clear of all Liens, except any Liens created pursuant to the terms of
this Agreement and the Original Repurchase Agreement.
(g) KLM is the record and beneficial owner on the date hereof of
18,177,874 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 Option Agreement.
9
(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 or the Ancillary Agreements.
(i) KLM is acquiring the Notes for its own account for investment with
no intention of distributing or reselling such Notes or any part thereof in
any transaction which would be in violation of the securities laws of the
United States of America or any state thereof or any other jurisdiction,
without prejudice, however, to its right at all times to sell or otherwise
dispose of all or any part of such Notes in compliance with the transfer
restrictions described in Section 4.4.
(j) KLM acknowledges that the Notes to be issued to it are being
offered and sold without registration under the Securities Act of 1933 (the
"SECURITIES ACT") in reliance upon the exemption provided in Section 4(2)
of the Securities Act. KLM further acknowledges that such exemption
depends in part upon, and such Notes are being issued in reliance upon, the
following representations and warranties: KLM has access to the periodic
reports filed by NWA Corp. prior to the date hereof under the Exchange Act;
it has made, and is solely responsible for making, its own independent
evaluation of the economic, credit and other risks involved in accepting
the Notes as part of the purchase price for the Shares; it has been given
the opportunity to ask questions of, and receive answers from, NWA Corp.
concerning the business conducted by NWA Corp. and its subsidiaries and the
financial condition of NWA Corp. and its subsidiaries; and it has been
given the opportunity to obtain any additional information necessary in
order to make an informed decision with respect to such acceptance of the
Notes to the extent that NWA Corp. possesses such information or can
acquire it without unreasonable effort or expense.
3.2 REPRESENTATIONS AND WARRANTIES OF NWA CORP. NWA Corp. represents
and warrants to KLM as of the date hereof and as of the 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 the Ancillary Agreements and to
perform its obligations hereunder and thereunder. The execution and
delivery by NWA Corp. of this Agreement and the Ancillary Agreements and
the performance of the transactions herein and therein contemplated to be
performed by NWA Corp. have been duly authorized by the Board of Directors
of NWA Corp., and subject to Section 5.1(a)(v), no further corporate action
on the part of NWA Corp. is necessary to authorize this Agreement or the
Ancillary Agreements and the performance of such transactions. Subject to
Section 5.1(a)(v), each of this Agreement and the Ancillary Agreements 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
10
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
Ancillary Agreements nor the performance by NWA Corp. of the transactions
contemplated hereby or thereby 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 or the Ancillary Agreements and the consummation of the
transactions contemplated hereby and thereby.
(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 and by the Ancillary Agreements.
(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 or the Ancillary Agreements.
(g) The "capital" of NWA Corp. is not "impaired" and will not become
"impaired", within the meaning of Section 160(a) (1) of the DGCL, as a
result of the issuance and delivery of the Notes and the payment of Cash by
NWA Corp. for the purchase of the Shares on the Closing Date.
(h) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable
value of the assets of (A) NWA Corp. and its subsidiaries, and (B)
Northwest and its subsidiaries (each on a consolidated basis) will exceed
the sum of their respective stated liabilities and identified contingent
liabilities; each of (X) NWA Corp. and its subsidiaries, and (Y) Northwest
and its subsidiaries (each on a consolidated basis) is not, nor will they
be after giving effect to the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby, (i)
left with unreasonably
11
small capital with which to carry on their business as it is proposed to
be conducted, (ii) unable to pay its debts (contingent or otherwise) as
they mature or (iii) otherwise insolvent.
ARTICLE IV
COVENANTS
4.1 NO TRANSFERS, LIENS. KLM hereby unconditionally and irrevocably
agrees that, prior to the Closing Date, it will not sell, transfer, or assign,
or enter into any equity swap or similar arrangement with respect to, any Shares
subject to purchase by NWA Corp. under this Agreement.
4.2 ANTITRUST IMMUNITY AND EUROPEAN COMMUNITY CONDITIONS. Each of KLM
and NWA Corp. hereby agrees to use commercially reasonable efforts to arrange
for (a) the renewal or maintenance prior to September 29, 1999 (or, failing such
date, September 29, 2000) of the antitrust immunity presently granted to the
Northwest/KLM commercial alliance by the U.S. Department of Transportation
pursuant to Order 93-1-11 or (b) the renewal and/or modification prior to
September 29, 1999 (or, failing such date, September 29, 2000) of such antitrust
immunity on terms as favorable in all material respects as the terms of the
antitrust immunity granted to (1) the United-Lufthansa commercial alliance by
the U.S. Department of Transportation pursuant to Order 96-5-27 and (2) the
Delta/Swissair/Austrian/Sabena commercial alliance by the U.S. Department of
Transportation pursuant to Order 96-6-33, and (c) the absence of any imposition
by the European Commission of conditions on the Northwest/KLM commercial
alliance equivalent to the conditions proposed with respect to the pending
commercial alliance between British Airways and American Airlines, the terms of
which were reported in the media on or about August and/or September of 1997
(but prior to September 29, 1997) such that KLM's and Northwest's abilities to
operate as contemplated in the Alliance Implementation Agreement shall have been
materially adversely affected.
4.3 NO STOCK SPLITS, ETC. Prior to the Closing Date, NWA Corp. will
not subdivide, combine or otherwise reclassify its Common Stock, or declare or
pay any dividend in respect of its Common Stock.
4.4 TRANSFER RESTRICTIONS. (a) The Notes shall bear the legend
appearing on the form of Notes and shall be subject to the restrictions on
transfer described therein. The legend set forth on any Note shall be removed
and NWA Corp. shall, and shall cause Northwest to, issue one or more replacement
certificates without such legend to the holder of the Note upon which it is
stamped if, unless otherwise required by state securities laws, such holder
provides NWA Corp. and Northwest with an opinion of counsel, in form, substance
and scope reasonably acceptable to NWA Corp. and Northwest, to the effect that a
public sale or transfer of the Note may be made without registration under the
Securities Act or such holder provides NWA Corp. and Northwest with reasonable
assurances that such Note can be sold pursuant to Rule 144(k) under the
Securities Act (or any successor provision).
12
(b) Subject to compliance with applicable securities laws, KLM shall
have the right to pledge to one or more financial institutions or to sell,
assign, transfer or otherwise dispose of the Notes in a private placement or a
Rule 144A transaction under the Securities Act of 1933. The disclosure
concerning Northwest for any such transaction shall be based upon the filings
made by NWA Corp. under the Exchange Act. KLM and any investment bank
underwriting or placing a Note in any such transaction shall be afforded a
reasonable opportunity by NWA Corp. to conduct oral due diligence with senior
management of NWA Corp. or Northwest for purposes of determining the
advisability (in connection with any such sale by KLM) of updating the
disclosures concerning NWA Corp. then on file under the Exchange Act. KLM
agrees that, if requested by NWA Corp., (i) it will coordinate any such
transaction with any offering transactions being effected by Northwest or NWA
Corp. and (ii) it will defer any such transaction for a period of up to 90 days
(it being understood that NWA Corp. may request such deferral only one time in
any 180 day period and only for a good faith business reason). KLM shall have
no registration rights in respect of the Notes.
4.5 ANCILLARY AGREEMENTS. On or prior to the Closing Date, each
of KLM and NWA Corp. shall have executed the Ancillary Agreements and delivered
to each other signed copies of such Ancillary Agreements.
4.6 NORTHWEST. NWA Corp. shall cause Northwest to use all reasonable
efforts to consummate the transactions to be effected by Northwest contemplated
hereby.
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS TO THE CLOSING. (a) The obligations of NWA Corp. to
effect the Closing 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 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 Closing Date
with the same effect as though made at and as of the 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 to be performed or complied with by
KLM at or prior to the Closing Date.
(ii) OFFICER'S CERTIFICATE. NWA Corp. shall have received an
executed certificate, dated the Closing Date, of the President of KLM 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.
13
(iv) ANCILLARY AGREEMENTS. KLM shall have executed and delivered
to NWA Corp. the Ancillary Agreements.
(v) NO CAPITAL IMPAIRMENT. The Board of Directors shall not
have determined reasonably and in good faith, in accordance with applicable
provisions of corporation law, that the capital of NWA Corp. is impaired on
the Closing Date or would otherwise be impaired as a result of the payment
by NWA Corp. for the requisite Shares on the Closing Date within the
meaning of the DGCL; PROVIDED, that in making any such determination as to
a capital impairment, the Board of Directors shall, consistent with its
fiduciary duties, (a) employ the same methods employed by it at the
September 4, 1997 meeting of the Board of Directors (the "SEPTEMBER 4
MEETING") with respect to the transactions contemplated by the Original
Repurchase Agreement, including engaging an independent financial advisor
that regularly engages in rendering opinions to boards of directors
concerning the types of issues which typically arise in the report of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ referenced below, who shall provide a similar
written presentation and opinion to the Board of Directors, and employ
similar analyses and methodologies, as those provided and employed by
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ in its report delivered at the September 4
Meeting, and (b) receive such other presentations, opinions, analyses and
use methodologies as such financial advisor or the Board of Directors shall
then deem reasonably appropriate. NWA Corp. shall provide to KLM copies of
the relevant minutes of the Board of Directors' meetings and the written
presentations and opinions of such financial advisor(s) which relate to
such determination as to capital impairment for purposes of the Closing
Date.
(vi) GOOD AND VALID TITLE. KLM shall have and deliver to NWA
Corp. good and valid title to all of the Shares to be purchased by NWA
Corp. at the Closing Date, free and clear of any Liens (except any Liens
created pursuant to the terms of this Agreement or the Original Repurchase
Agreement).
(vii) INVESTMENT REPRESENTATION LETTER FROM RABOBANK. Rabobank shall
have executed and delivered to NWA Corp. an Investment Representation
Letter substantially in the form of Exhibit D hereto.
(b) The obligations of KLM to effect the purchase of Shares on the
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 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 Closing
Date with the same effect as though made at and as of the 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 Closing Date.
14
(ii) OFFICER'S CERTIFICATE. KLM shall have received an executed
certificate, dated the 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.
(iv) ANCILLARY AGREEMENTS. NWA Corp. shall have executed and
delivered to KLM the Ancillary Agreements.
(c) If KLM has delivered to Northwest a notice under Section 1.04(b)
of the Alliance Implementation Agreement of a Material Default (as such term is
used in such Agreement) on the part of Northwest, the parties' obligations to
effect the purchase and sale of Shares on the Closing Date may, at the sole
option of KLM, be deferred pending either (i) Northwest's cure of such Material
Default or (ii) a determination by the arbitrator(s) appointed pursuant to
Section 9.08 of the Alliance Implementation Agreement that no such Material
Default exists. Immediately upon the occurrence of either of the events
specified in the preceding clauses (i) or (ii), the parties shall be obligated
to effect the purchase and sale of Shares which had been deferred by reason of
this Section 5.1(c). If such arbitrator(s) make a determination that a Material
Default on the part of Northwest exists but KLM does not thereafter give notice
of termination of the Alliance Implementation Agreement within the three-month
period specified in Section 1.04 of such Alliance Implementation Agreement, then
immediately upon the expiration of such three-month period, the parties shall be
obligated to effect the purchase and sale of Shares which had been deferred by
reason of this Section 5.1(c).
ARTICLE VI
WITHHOLDING TAXES
6.1 UNITED STATES FEDERAL WITHHOLDING TAXES. (a) NWA Corp. hereby
agrees that it will not deduct or withhold any United States federal income
taxes that may be 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 any payments made by NWA Corp. to KLM
in respect of the Shares.
(b) Except to the extent provided in Section 6.1(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 of any
payments made by NWA Corp. to KLM in respect of the Shares 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) KLM will deliver to NWA Corp., promptly after the date hereof,
an Internal Revenue Service Form 1001 evidencing that KLM is entitled to the
benefits of the income tax treaty between The Netherlands and the United
States. KLM also agrees to
15
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 Withholding Taxes imposed on any amount paid by NWA Corp. to KLM in
respect of the Shares. NWA Corp. shall have no obligation to indemnify or
hold harmless KLM for any United States Withholding Taxes described in
Section 6.1(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 6.1(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 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, as of September 29, 1997, is accurately
described in the Original Repurchase Agreement and the Preferred Stock
Repurchase Agreement dated as of September 29, 1997 between KLM and NWA Corp.
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.
ARTICLE VII
GENERAL PROVISIONS
7.1 TERMINATION OR ABANDONMENT OF AGREEMENT. (a) If the condition
described in Section 5.1(a)(v) is not satisfied on the Closing Date, this
Agreement shall be terminated in its entirety, in which case the Original
Repurchase Agreement shall remain in effect unchanged by this Agreement unless
the parties shall otherwise agree.
(b) This Agreement may be terminated or abandoned at any time prior to
the Closing by mutual consent of the parties in writing, in which case the
Original Repurchase Agreement shall remain in effect unchanged by this Agreement
unless the parties shall otherwise agree.
(c) Except as otherwise specified in this Article VII, this Agreement
shall not terminate or expire until the Notes and all other amounts owed by NWA
Corp. and Northwest have been paid in full (including satisfying any tax
indemnity obligation) and KLM's options pursuant to the Option Agreement have
expired.
7.2 EFFECT ON THE ORIGINAL REPURCHASE AGREEMENT. (a) Upon the
execution of this Agreement, the covenant described in Section 4.1(b) of the
Original Repurchase Agreement shall be suspended for a period of time beginning
on the effective date of this Agreement and ending on the Closing Date, at which
time the entirety of Section 4.1 of the Original Repurchase Agreement shall
terminate pursuant to Section 7.2(b).
16
(b) Upon consummation of the transactions contemplated by this
Agreement on the Closing Date, Sections 2.1(b), 2.1(c), 2.1(d), 2.1(e), 2.1(f)
(the second sentence), 2.1(g), 2.2, 2.3, 4.1, 4.5, 4.6, 5.2, 6.1 (to the extent
such section would provide for indemnification provided for by Section 6.1
hereof), 7.1(a), 7.1(b), 7.1(c), 7.1(d) and 7.1(f) of the Original Repurchase
Agreement shall terminate and be of no further force or effect.
(c) Upon consummation of the transactions contemplated by this
Agreement on the Closing Date, Section 7.1(e) of the Original Repurchase
Agreement shall be amended to read in its entirety as follows:
(e) (i) [intentionally omitted] (ii) If KLM exercises its right
to purchase shares of NWA Corp.'s common stock, par value $.01 per share,
pursuant to either the First Option or the Second Option (as such terms are
defined in the Northwest Airlines Corporation Common Stock Option Agreement
between NWA Corp. and KLM dated as of May ▇, ▇▇▇▇), ▇▇▇ Corp. shall have
the right to immediately terminate the Alliance Implementation Agreement
within thirty days of the date of such exercise.
7.3 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.
7.4 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.
7.5 NOTICES. All notices, requests, demands or other communications
provided herein shall be made in writing and shall be deemed to have been duly
given if delivered as follows:
If to NWA Corp.:
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President, General Counsel
and Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
17
If to KLM:
Koninklijke Luchtvaart Maatschappij N.V.
Amsterdamseveg 55
1192 G P Amstelveen
The Netherlands
Attention: Senior Vice President and General
Counsel
Fax: ▇▇▇-▇▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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.
7.6 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.
7.7 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.
7.8 SUCCESSORS AND ASSIGNS. This Agreement (but not the Notes issued
or sold hereunder) 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 (including any new
holding company of NWA Corp. following a reorganization transaction pursuant to
Section 251(g) of the DGCL) 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.
18
7.9 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.
7.10 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.
7.11 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.
7.12 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 7.4; 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 ▇▇▇ in any other appropriate jurisdiction.
19
7.13 REMEDIES. Each of the parties hereto acknowledges that the
rights granted to the other party hereto in this Agreement are of a special,
unique and extraordinary character, and that any breach of this Agreement by the
other party hereto could not be compensated for by damages. Accordingly, in the
event of any failure or refusal by the other party hereto to comply with any
covenant or agreement contained in this Agreement each of the parties hereto
shall be entitled, in addition to any other remedies that such party may have,
to enforcement of this Agreement by a decree of specific performance requiring
the other party hereto to fulfill its obligations under this Agreement.
7.14 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.
7.15 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.
7.16 INTERPRETATION. To the extent any ambiguity arises concerning
the interpretation of this Agreement, the parties agree that this Agreement,
together with the other documents and instruments contemplated hereby, is
intended to preserve the rights and obligations of the parties under the
Original Repurchase Agreement to the fullest extent possible, assuming that the
accelerated repurchase transactions contemplated by Section 2.1 take place, and,
accordingly, any such ambiguity hereunder shall be resolved in light of such
intent.
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/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
KONINKLIJKE LUCHTVAART
MAATSCHAPPIJ N.V.
By: /s/▇.▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Director Corporate Finance