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EXHIBIT 10.94
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of the 12th day of March, 2001, by and among Trans World Airlines, Inc.
(the "Borrower"), as a debtor and debtor in possession under chapter 11 of the
Bankruptcy Code, certain Subsidiaries of the Borrower listed on the signature
pages hereto, as Guarantors, as debtors and debtors in possession under chapter
11 of the Bankruptcy Code, the Lenders and AMR Finance, Inc. (the
"Administrative Agent"), as administrative agent for the Lenders.
BACKGROUND
A. The Borrower, the Guarantors, the Lenders, and the
Administrative Agent are parties to that certain Secured Debtor In Possession
Credit and Security Agreement dated as of January 10, 2001 (as amended by those
certain letter agreements dated January 11, 2001, January 26, 2001 and March 7,
2001 and as may be further amended, extended, renewed, or restated from time to
time, the "Credit Agreement"; terms defined in the Credit Agreement and not
otherwise defined herein shall be used herein as defined in the Credit
Agreement).
B. The Borrower, the Guarantors, the Lenders and the
Administrative Agent desire to amend the Credit Agreement to (i) increase the
Revolving Credit Commitment from $100,000,000 (such Original Revolving Credit
Commitment together with the Term Credit Commitment the "Original Commitment")
to $230,000,000 (such increase, the "Incremental Commitment") and (ii) permit
Overadvances (defined below).
NOW, THEREFORE, in consideration of the covenants, conditions
and agreements contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the parties
hereto covenant and agree as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit
Agreement is hereby amended as follows:
(a) Section 1.1 is amended to add the following
definitions:
"'Overadvances' has the meaning specified in
Section 2.1(c)."
"'Post-Petition Obligation Credit' has the
meaning set forth in Section 2.10(a)."
(b) Section 2.1 is hereby amended by adding the
following new paragraph as Section 2.1(c):
"(c) Any provision of this Agreement to the
contrary notwithstanding, at the request of the
Borrower, the Administrative Agent may, in its sole
and absolute discretion (but shall have absolutely no
obligation to), make a Revolving Loan to Borrower on
behalf of the
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Lenders in amounts that cause the outstanding
balance of the aggregate Revolving Loans then
outstanding, after giving effect to such Revolving
Loan, to exceed the amount equal to the Borrowing
Base less Availability Reserves, in each case then
in effect at such time (any such excess Revolving
Loan is herein referred to collectively as an
"Overadvance" and collectively, the "Overadvances");
provided, however (i) no such event or occurrence
shall cause or constitute a waiver of the
Administrative Agent's or any Lender's right to
refuse to make any further Overadvance, or to make
any Revolving Loans or Term Loans in accordance with
this Agreement and the other Loan Documents, and
(ii) no Overadvance shall result in a Default or
Event of Default due to Borrower's failure to comply
with Section 2.7(d), but solely with respect to the
amount of such Overadvance. Overadvances may be made
notwithstanding the condition set forth in Section
3.2(c)(i). All Overadvances shall bear interest at
the rates and be payable on the dates set forth in
Section 2.8. Any Overadvance made pursuant to this
Section 2.1(c) shall be repaid on the Revolving
Credit Termination Date. The authority of the
Administrative Agent to make Overadvances is limited
to an aggregate principal amount not to exceed
$130,000,000 at any time outstanding and shall not
cause the aggregate principal amount of the
Revolving Loan outstanding at any time to exceed the
Revolving Credit Commitment."
(c) Section 2.2(a)(i) is hereby deleted and
replaced with the following:
"(i) whether the proposed Borrowing consists
of a Revolving Loan, a Term Loan or both and if the
Borrowing of Revolving Loans constitutes a request
for an Overadvance, the intended use of the proceeds
thereof,"
(d) The first sentence of Section 2.6(a) is
hereby deleted and replaced with the following:
"The Borrower may, upon at least one Business Day's
prior notice to the Administrative Agent, prepay the
outstanding principal amount of the Loans in whole or
in part; provided, however, that each partial
prepayment of Loans shall be in an aggregate
principal amount not less than $100,000; provided
further that all prepayments of the Revolving Loans
shall first be applied to Overadvances then
outstanding."
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(e) Section 2.7(d) is hereby deleted and
replaced with the following:
"(d) If, at any time, the aggregate
principal amount of the aggregate Revolving Loans
then outstanding (excluding Overadvances) exceeds by
more than $10,000,000 the amount equal to the
Borrowing Base less Availability Reserves, in each
case then in effect at such time, the Borrower shall
forthwith prepay the Revolving Loans then outstanding
in an amount equal to such excess. Overadvances made
pursuant to Section 2.1(c) shall be repaid on the
Revolving Credit Termination Date. If, at any time,
the aggregate principal amount of the aggregate
Revolving Loans (including Overadvances) exceeds the
aggregate Revolving Credit Commitments, the Borrower
shall forthwith prepay the Revolving Loans then
outstanding in an amount equal to such excess. If, at
any time, the aggregate principal amount of the
aggregate Term Loans exceeds the aggregate Term
Credit Commitments, the Borrower shall forthwith
prepay the Term Loans then outstanding in an amount
equal to such excess."
(f) Section 2.7 is hereby amended by adding the
following new paragraph as Section 2.7(e):
"(e) Notwithstanding anything to the
contrary set forth in Section 2.7, except with
respect to the first sentence of Section 2.7(d), any
payments of the Revolving Loans pursuant to this
Section 2.7 shall first be applied to Overadvances
then outstanding."
(g) Section 2.9(b) is hereby deleted and
replaced with the following:
"(b) The Borrower agrees to pay to the
Administrative Agent an arrangement fee equal to four
percent (4%) of the Original Commitment and two
percent (2%) of the Incremental Commitment
(collectively, the "Arrangement Fee"), payable on the
date of the funding of each Borrowing; provided,
however, that the Arrangement Fee shall only be
payable on that portion of such Borrowing equal to
the amount (if any) by which (i) the total
outstanding amount of the Loans (after giving effect
to the Borrowing) on the date of such Borrowing,
exceeds (ii) the maximum amount of the Loans
outstanding on any date prior to the date of such
Borrowing; provided further that all Borrowings
outstanding at any time up to $200 million shall be
deemed to be Borrowings of the Original Commitment
and; provided further, that in the event that
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American shall make the Final Accepted Offer (as
defined in the Asset Purchase Agreement) for the
Transferred Assets (as defined in the Asset Purchase
Agreement) or the Non-Worldspan Assets (as defined in
the Asset Purchase Agreement) then one-half of the
Arrangement Fee paid to Administrative Agent shall be
returned and refunded to the Borrower on the closing
date for such asset purchase."
(h) Section 2.10 is hereby amended to add the
following language at the end of Section 2.10(a):
"Notwithstanding any provision in this Agreement to
the contrary, in the event AMR Finance or any of its
Affiliates purchases any asset or assets of the
Borrower or its Subsidiaries, whether pursuant to the
Asset Purchase Agreement or otherwise, or incurs any
other obligation to any of the Borrower or any of its
Subsidiaries or any trustee or examiner for the
Borrower or any of its Subsidiaries appointed under
chapter 7 or chapter 11 of the Bankruptcy Code, AMR
Finance and its Affiliates shall be entitled to pay
the purchase price or satisfy any such obligation by
a credit of the amount of such purchase price or
other obligation against the Obligations owing to AMR
Finance, without further order of the Bankruptcy
Court or notice to any other party, whether or not
such Obligations are then due and payable (the
"Post-Petition Obligation Credit") and the
Obligations owing to AMR Finance shall be reduced by
the amount of the Post-Petition Obligation Credit
owing to AMR Finance."
(i) Section 3.2 is hereby amended to re-letter
clause (g) thereof as clause (h) and insert the following new
clause (g):
"(g) Arrangement Fee. The Administrative
Agent shall have received (or shall receive
simultaneously with the funding of any Borrowing) the
Arrangement Fee (if any) due and owing in respect of
such Borrowing pursuant to Section 2.9(b)."
(j) Section 4.11 is hereby amended to add the
following language at the end of Section 4.11:
"Notwithstanding the foregoing, the proceeds of the
Overadvances shall be used only for the purpose
detailed in the Notice of Borrowing requesting such
Overadvance and which is approved by the
Administrative Agent in writing prior to the date of
such Overadvance."
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(k) Schedule I is hereby deleted and replaced
with Schedule I attached hereto.
(l) Exhibit C is hereby deleted and replaced
with Exhibit C attached hereto.
2. ACKNOWLEDGMENT OF THE BORROWER. The Borrower acknowledges
and agrees that the Lenders executing this Amendment have done so in their sole
discretion and without any obligation.
3. SUBSIDIARIES ACKNOWLEDGMENT. By signing below, each of the
Subsidiaries which has executed the Credit Agreement (a) consents and agrees to
the execution and delivery of this Amendment, (b) ratifies and confirms its
obligations under the Credit Agreement and the other Loan Documents, (c)
acknowledges and agrees that its obligations under the Credit Agreement and the
other Loan Documents are not released, diminished, impaired, reduced, or
otherwise adversely affected by this Amendment, and (d) acknowledges and agrees
that it has no claims or offsets against, or defenses or counterclaims to, its
obligations under the Credit Agreement or any of the other Loan Documents.
4. REPRESENTATIONS AND WARRANTIES TRUE, NO EVENT OF DEFAULT.
By its execution and delivery hereof, the Borrower represents and warrants, as
to itself and as to its Subsidiaries, to the Administrative Agent and the
Lenders that, as of the date hereof:
(a) the representations and warranties contained in
the Credit Agreement and the other Loan Documents are true and correct
in all material respects on and as of the date hereof as made on and as
of such date, except for any representations and warranties made as of
a specific date, which shall be true and correct in all material
respects as of such specific date; and
(b) after giving effect to this Amendment, no event
has occurred and is continuing which constitutes a Default or an Event
of Default.
5. CONDITIONS OF EFFECTIVENESS. This Amendment shall not be
effective until each of the following conditions precedent shall have been
satisfied:
(a) This Amendment has been executed by Borrower, the
Guarantors, the Administrative Agent and the Lenders; and
(b) The Administrative Agent shall have received such
documents, certificates and instruments as the Administrative Agent
shall reasonably require, including an order of the Bankruptcy Court
approving this Amendment; and
(c) Borrower shall have paid to the Administrative
Agent the reasonable fees and expenses of the Administrative Agent's
counsel.
6. REFERENCE TO CREDIT AGREEMENT. Upon the effectiveness of
this Amendment, each reference in the Credit Agreement to "this Agreement,"
"hereunder," or
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words of like or similar import shall mean and be a reference to the Credit
Agreement, as affected and amended by this Amendment.
7. COUNTERPARTS; EXECUTION VIA FACSIMILE. This Amendment may
be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. This Amendment may be validly executed and delivered by facsimile or
other electronic transmission.
8. GOVERNING LAW: BINDING EFFECT. This Amendment shall be
governed by and construed in accordance with the laws of the State of New York
and shall be binding upon the Borrower, the Guarantors, the Administrative
Agent, each Lender and their respective successors and assigns.
9. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
10. LOAN DOCUMENT. This Amendment is a Loan Document and is
subject to all provisions of the Credit Agreement applicable to Loan Documents,
all of which are incorporated in this Amendment by reference as if set forth in
this Amendment verbatim.
11. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
TRANS WORLD AIRLINES, INC.,
as Borrower
By:
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Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
AMBASSADOR FUEL CORPORATION,
as a Guarantor
By:
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Name: Xxxxxxx Xxxxxxx
Title: President
MEGA ADVERTISING INC.,
as a Guarantor
By:
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Name: Xxxx X.X. Xxxxxxxx
Title: Secretary
XXXXXXXXX 000XX XXXXXX CORPORATION,
as a Guarantor
By:
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Name: Xxxx X.X. Xxxxxxxx
Title: Secretary
THE TWA AMBASSADOR CLUB, INC.,
as a Guarantor
By:
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Name: Xxxx X.X. Xxxxxxxx
Title: Secretary
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TRANS WORLD COMPUTER SERVICES, INC.,
as a Guarantor
By:
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Name: Xxxx X.X. Xxxxxxxx
Title: Secretary
TRANSCONTINENTAL & WESTERN AIR, INC.,
as a Guarantor
By:
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Name: Xxxxxxx X. Xxxxxxx
Title: President
TWA AVIATION, INC.,
as a Guarantor
By:
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Name: Xxxx X.X. Xxxxxxxx
Title: Secretary
TWA GROUP, INC.,
as a Guarantor
By:
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Name: Xxxx X.X. Xxxxxxxx
Title: Secretary
TWA STANDARDS & CONTROLS, INC.,
as a Guarantor
By:
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Name: Xxxx X. X. Xxxxxxxx
Title: Assistant Secretary
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OZARK GROUP, INC.,
as a Guarantor
By:
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Name: Xxxxxxx Xxxxxxx
Title: President
TWA NIPPON, INC.,
as a Guarantor
By:
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Name: Xxxx X. X. Xxxxxxxx
Title: Secretary
TWA EMPLOYEE SERVICES, INC.,
as a Guarantor
By:
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Name: Xxxx X. X. Xxxxxxxx
Title: Secretary
TWA GETAWAY VACATIONS, INC.,
as a Guarantor
By:
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Name: Xxxx X. X. Xxxxxxxx
Title: Assistant Secretary
TRANS WORLD EXPRESS, INC.,
as a Guarantor
By:
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Name: Xxxx X. X. Xxxxxxxx
Title: Secretary
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INTERNATIONAL AVIATION SECURITY, INC.,
as a Guarantor
By:
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Name: Xxxx X. X. Xxxxxxxx
Title: Secretary
GETAWAY MANAGEMENT SERVICES, INC.,
as a Guarantor
By:
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Name: Xxxx X. X. Xxxxxxxx
Title: Secretary
THE GETAWAY GROUP (UK), INC.,
as a Guarantor
By:
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Name: Xxxx X. X. Xxxxxxxx
Title: Secretary
AMR FINANCE, INC.,
as Agent and Lender
By:
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Name: Xxxxxx Xxxxxx
Title: Senior Vice President &
Chief Financial Officer
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Schedule I
LENDER REVOLVING CREDIT COMMITMENT TERM CREDIT COMMITMENT
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AMR Finance, Inc. $230,000,000 $100,000,000
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