Exhibit 6
PROMISSORY NOTE
$28,356,015.00 New York, New York
April 24, 1998
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE REOFFERED OR SOLD UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
FOR VALUE RECEIVED, the undersigned, AIR PARTNERS, L.P., a Texas
limited partnership (the "PARTNERSHIP"), promises to pay to NORTHWEST
AIRLINES CORPORATION, a Delaware corporation ("PARENT"), at 0000 Xxxx Xxx
Xxxxxxx, Xxxxx, Xxxxxxxxx 00000 (or at such other place as Parent shall
notify the Partnership in writing), without setoff or counterclaim, the
principal amount of TWENTY-EIGHT MILLION THREE HUNDRED FIFTY-SIX THOUSAND
FIFTEEN DOLLARS AND NO CENTS ($28,356,015.00) at the earlier to occur of (i)
the date the Investment Agreement, dated as of January 25, 1998 (the
"AGREEMENT"; capitalized terms used and not specifically defined herein shall
have the meanings set forth in the Agreement), among Parent, Newbridge Parent
Corporation, the Partnership, the Partners of the Partnership named therein
and the Transferors named therein, is terminated in accordance with its terms
and (ii) the Closing and to pay interest on the unpaid principal balance
hereunder (such principal amount, the "LOAN") (A) for any period ending on or
prior to July 25, 1998 at the Revolving Interest Rate and (B) for any period
from and including July 25, 1998, at a rate of 10% per annum. If the Closing
occurs, the aggregate Cash Election Share Price payable and/or the aggregate
number of Exchange Shares to be delivered by Parent and Holdco Sub at the
Closing shall be reduced by the amount of principal and interest payable by
the Partnership hereunder (the "PAYOFF AMOUNT") in respect of each Partner in
proportion to each Partner's allocable share of the Payoff Amount, the
determination of the portion of the Payoff Amount allocable to the Cash
Electing Partners and the Share Electing Partners to be made by the
Partnership and notified to Parent in writing at least three Business Days in
advance of the Closing. Any reduction in the Exchange Shares to be issued
shall be based on the average closing price for the Parent Class A Common
Stock as of the close of business for each of the ten trading days ending on
and including the third Business Day preceding the Closing Date. In the
event the Agreement is terminated, this Note shall be repaid in full in cash.
In the event that any amount payable hereunder is not paid when due, such
amount shall bear interest at a rate per annum equal to the rate per annum
applicable to the unpaid principal balance hereof, as described above, plus
2% per annum.
Interest shall accrue from and including the date hereof to but
excluding the date of payment, and shall be calculated on the basis of a 365-day
year. All accrued but unpaid interest shall in any event be paid in full in
cash, shares of Holdco Sub Class A Common Stock or a combination thereof (in
accordance with the preceding paragraph), as the
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case may be, on the earlier to occur of (i) the Closing, (ii) the date the
Agreement is terminated in accordance with its terms and (iii) the date on which
the Loan becomes due by acceleration or otherwise; PROVIDED, HOWEVER, in the
event the Agreement is terminated, all accrued and unpaid interest shall be
repaid in full in cash. For purposes of this Note, if any day referenced herein
shall not be a Business Day, such reference shall be deemed to be the next
succeeding Business Day.
This Note may be prepaid in whole or in part at any time without
premium or penalty. Each payment under this Note shall first be credited to
accrued and unpaid interest, and the remainder shall be credited to principal.
All interest due hereunder shall be paid to the date of payment on the principal
amount prepaid. All cash payments (including prepayments) to be made by the
Partnership hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to the close of business on the due date thereof to or for the account of Parent
at 0000 Xxxx Xxx Xxxxxxx, Xxxxx, Xxxxxxxxx 00000 (or at such other place as
Parent shall notify the Partnership in writing), in dollars in lawful currency
of the United States of America and in immediately available funds.
All payments of principal, interest and any other amounts hereunder by
the Partnership shall be made free and clear of, and without deduction or
withholding for, any and all present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings of any nature
whatsoever, now or hereafter imposed, levied, collected, withheld or assessed by
any governmental authority (the foregoing, "TAXES").
If any of the following events (each, an "EVENT OF DEFAULT") shall
occur and be continuing:
(a) The Partnership shall fail to pay any principal hereunder when
due in accordance with the terms hereof; or the Partnership shall fail to
pay any interest in respect of the Loan, or any other amount payable
hereunder, when any such interest or other amount becomes due in accordance
with the terms hereof; or
(b) (i) The Partnership shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or the Partnership shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Partnership
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
the Partnership any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, restraint or similar
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process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) the Partnership shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
the Partnership shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (b) above with respect to the Partnership,
automatically the Loan (with accrued interest thereon) and all other amounts
owing under this Note shall immediately become due and payable, and (B) if such
event is any other Event of Default, Parent may, in its sole discretion by
notice to the Partnership, declare the Loan (with accrued interest thereon) and
all other amounts owing under this Note to be due and payable forthwith,
whereupon the same shall immediately become due and payable, and Parent may
avail itself of all other remedies of a secured creditor, including as set forth
under the Pledge Agreement dated as of the date hereof among Parent, the
Partnership and the Partners.
The Partnership agrees (a) to pay or reimburse Parent for all its
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Note and any other documents related hereto, including,
without limitation, the fees and disbursements of counsel and (b) to pay,
indemnify, and hold Parent harmless from, any and all recording and filing fees,
stamp or similar taxes or duties or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Note. The agreements
in this paragraph shall survive repayment of the Loan and all other amounts
payable hereunder.
The right to plead any and all statutes of limitation as a defense to
a demand hereunder is hereby waived to the full extent permitted by law. None
of the provisions hereof and none of Xxxxxx's rights or remedies hereunder on
account of any past or future defaults shall be deemed to have been waived by
Parent's acceptance of any past due installments or by any indulgence granted by
Parent to the Partnership. The Partnership, for itself and any guarantors
hereof, and their successors and assigns, waives presentment, demand, protest
and notice thereof or of dishonor, and waives any right to be released by reason
of any extension of time or change in the terms of payment or any change,
alteration or release of any security given for the payment hereof.
The Partnership hereby irrevocably and unconditionally (i) submits for
itself and its property in any legal action or proceeding relating to or arising
from this Note, 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 or, in the
absence of Federal jurisdiction, the Commercial Part of the Supreme Court of the
State of New York for New York County, and appellate courts from any thereof;
(ii) 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
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agrees not to plead or claim the same; (iii) 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 the Partnership at its address previously notified to
Parent; and (iv) 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 sue in any other appropriate jurisdiction.
The terms of this Note may be amended, supplemented or modified only
with the written consent of Parent and the Partnership. Neither this Note nor
any of the rights, interests or obligations under this Note shall be assigned,
in whole or in part, by operation of law or otherwise by either of the parties
without the prior written consent of the other party. The Note will be binding
upon and, inure to the benefit of, and be enforceable by, the parties and their
respective successors, assigns and heirs.
The Partnership hereby represents and warrants to Parent that (i) the
execution, delivery and performance by the Partnership of the Note and its
obligations hereunder have been duly authorized by all necessary Partnership
action, and by all necessary action on the part of each Partner; (ii) no consent
or authorization of, filing with, notice to or other act by or in respect of,
any governmental authority or any other person is required in connection with
the borrowing hereunder or with the execution, delivery, performance, validity
or enforceability of this Note except consents, authorizations, filings and
notices that have been obtained or made and are in full force and effect; (iii)
this Note constitutes a valid and binding obligation of the Partnership,
enforceable against the Partnership in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
in a proceeding at equity or at law) and (iv) the execution, delivery and
performance by the Partnership of this Note, the borrowing hereunder, the use of
the proceeds thereof and the compliance by the Partnership with any of the
provisions hereof will not violate any material requirement of law or any
material contractual obligation of the Partnership or conflict with or result in
any breach of any applicable trust or other organizational documents applicable
to the Partnership.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
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IN WITNESS WHEREOF, the Partnership has caused this Note to be duly
executed the day and year first year above written.
AIR PARTNERS, L.P.
By: 1992 Air GP, managing
general partner
By: 1992 Air, Inc., managing
partner
By: /s/ Xxxxx X. X'Xxxxx
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Name: Xxxxx X. X'Xxxxx
Title: Vice President