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EXHIBIT 10.39
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STAND-BY PURCHASE AGREEMENT
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This Agreement dated as of August 8, 1995 is made by and between Trans
World Airlines, Inc., a Delaware corporation (the "Company") and M.D. Sass
Re/Enterprise Partners L.P., a Delaware limited partnership ("Sass
Partnership") and M.D. Sass Re/Enterprise International Ltd., a British Virgin
Island Company ("International"; Sass Partnership and International being
hereinafter referred to collectively as the "Purchasers");
WITNESSETH:
WHEREAS, the Company is a Chapter 11 bankruptcy debtor under the
United States Bankruptcy Code (the "Bankruptcy Code");
WHEREAS, pursuant to the Company's plan of reorganization confirmed by
the United States Bankruptcy Court for the Eastern District of Missouri on
August 4, 1995 (the "Plan"), the Company will issue 600,000 Ticket Vouchers (as
defined in Section 1.1.159 of the Plan), the form of which Ticket Vouchers is
attached as Exhibit "A" hereto, having an aggregate face amount of $30,000,000;
WHEREAS, the Plan contemplates the possibility of a stand-by purchase
arrangement for the purchase of Ticket Vouchers;
WHEREAS, the Company and Purchasers are willing to enter into this
Agreement to provide for such a stand-by purchase arrangement;
NOW THEREFORE, in consideration of the mutual covenants hereinafter
contained and other good and valuable considerations, the receipt and
sufficiency thereof which are hereby acknowledged, the Company and the
Purchasers, agree as follows:
1. STAND-BY COMMITMENT TO PURCHASE TICKET VOUCHERS. On the basis
of the covenants, representations and warranties herein contained, but subject
to the terms and conditions herein set forth, the Purchasers agree as follows:
a. Each of the Purchasers will on the Effective
Date (as defined in the Plan) issue its unconditional
contractual undertaking (the "Standby Commitment") to
purchase, without setoff or reduction of any kind,
all Ticket Vouchers tendered to and accepted by
American Stock Transfer and Trust Company as agent
(the "Agent") during the period commencing on the
Effective Date and ending on October 15, 1995 (but in
no event earlier than the close of business on the
date 45 consecutive days after the Effective Date)
(the "Expiration Date"), such purchase to be at a
price of $26.00 per $50.00 face amount of the Ticket
Vouchers so tendered (the "Standby Purchase Price").
Ticket Vouchers so purchased by the Purchasers after
being validated by the Agent shall be conclusively
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deemed, as between the Purchasers and the Company, to
be Ticket Vouchers for all purposes of this Agreement.
b. The Standby Commitment provides that payment
of the Standby Purchase Price will be made to the
Agent within three days after the Expiration Date
(the "Settlement Date") in immediately available
funds. The form of the Standby Commitment will be
substantially as set forth as EXHIBIT "B" hereto.
c. On the Settlement Date, the Purchasers will
notify the Company of the aggregate face amount of
Ticket Vouchers tendered and purchased by the
Purchasers pursuant to Section 1.a. above (the
"Purchased Ticket Vouchers").
2. AGREEMENT OF THE COMPANY TO REDEEM TICKET VOUCHERS.
a. The Company unconditionally agrees to redeem,
at a price of $33.00 per $50.00 face amount (the
"Redemption Price"), without setoff or reduction of
any kind, the Purchased Ticket Vouchers from the
Purchasers in accordance with the following schedule
(the "Scheduled Redemption"):
(1) on the Settlement Date, the Company
will redeem at the Redemption Price, 1/9th of
the Purchased Ticket Vouchers (the "October
Redemption");
(2) on the fifteenth day of each of
March and April 1996, the Company will redeem
at the Redemption Price 1/3 of the Purchased
Ticket Vouchers remaining after the October
Redemption;
(3) on the fifteenth day of each of May
and June 1996, the Company will redeem at the
Redemption Price 1/6th of Purchased Ticket
Vouchers remaining after the October
Redemption (subject to the credit set forth
below).
Payment of the aggregate Redemption Price for a
Scheduled Redemption shall be made on or before the
date stated above (each a "Redemption Date") in
immediately available funds in accordance with wire
transfer instructions from the Purchasers upon tender
to the Company of the Purchased Ticket Vouchers to be
redeemed in a manner sufficient to convey good title
thereto free and clear of any lien or encumbrance
arising by, through or under the Purchasers, to the
Company. Any Scheduled Redemption payment or portion
thereof not so made upon proper tender by the
Purchasers of the Purchased Ticket Vouchers shall
include interest
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from and including the Redemption Date such
payment is due until paid at an overdue rate equal to
the then applicable Prime Commercial rate of Chase
Manhattan Bank N.A. plus 250 basis points (the
"Overdue Rate") and reasonable out-of-pocket
collection costs, including reasonable attorneys'
fees and disbursements, if any, incurred by the
Purchasers. Payments received will be applied first,
to pay reasonable out-of-pocket collection costs,
including reasonable attorneys' fees and
disbursements, if any, incurred by Purchasers, and
second, to pay overdue interest due under this
Agreement and third, to pay overdue Scheduled
Redemption amounts.
b. The Company may credit against its final
Scheduled Redemption an amount equal to (i) $7.00
times (ii) the number of Purchased Ticket Vouchers
redeemed on or about the October 15, 1995 Redemption
Date.
c. Provided that no Event of Default shall have
occurred and then be continuing under this Agreement,
the Company may, at its option, redeem any or all of
the Purchased Ticket Vouchers on any day after
October 31, 1995 in advance of any Scheduled
Redemption at the price set opposite the month below
in which such day occurs (a "Discounted Redemption")
as follows:
Month Discounted Redemption Price
November 1995 $30
December 1995 $30
January 1996 $31
February 1996 $32
March 1996 $33
April 1996 $33
May 1996 $33
June 1996 $33
The Company may exercise its option for Discounted Redemption
by giving five business days prior written notice to the
Purchasers of such exercise (i) stating the amount of Ticket
Vouchers being redeemed in advance of such Scheduled
Redemption and (ii) designating the date of such Discounted
Redemption. Upon tender to the Agent of the Purchased Ticket
Vouchers subject to the Discounted Redemption on the date
specified in the written notice for such Discounted
Redemption, the Company shall pay to the Purchasers the
required Discounted Redemption amount in the form of a wire
transfer of immediately available funds in accordance with
wire transfer instructions from the Purchasers. The
Discounted
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Redemption payments will be applied in inverse order of
Scheduled Redemptions. The option to redeem Ticket
Vouchers in advance does not extend to any Ticket Vouchers
scheduled for redemption during the calendar month in which
the Purchasers receive such notice from the Company. Any
notice of Discounted Redemption as to which the Company shall
have exercised its option may be withdrawn upon the giving of
a notice of revocation at least two (2) business days prior to
the date fixed for such Discounted Redemption.
d. The Purchasers agree not to sell the Purchased Ticket
Vouchers except to the Company pursuant to this Section 2 or
upon any Event of Default as hereafter defined.
3. COMPENSATION TO PURCHASERS FOR STANDBY COMMITMENT.
a. As compensation for the Purchasers' commitment in
Section 1, the Company will pay to the Purchasers a fee equal
to $.90 times the difference between (i) 600,000 and (ii) the
number of Purchased Ticket Vouchers (the "Commitment Fee").
As compensation for X.X. Xxxxxxx, Inc.'s intermediary role in
the Standby Commitment, the Company will pay to X.X. Xxxxxxx,
Inc. a fee equal to $1.02 times the number of Purchased
Ticket Vouchers (but not to exceed $400,000) (the "TWA Broker
Fee"). The Purchasers will pay a fee to X.X. Xxxxxxx, Inc. of
$39,000 (the "Purchasers Broker Fee").
b. The Commitment Fee, the TWA Broker Fee and the
Purchasers Broker Fee will be paid in immediately available
funds on the Settlement Date upon confirmation by the Agent of
full funding by the Purchasers of the Standby Purchase Price.
4 . PAYMENT OF TRANSACTION COSTS, FEES AND EXPENSES.
a. In the event the Stand-by Commitment is issued as
herein contemplated, the Company agrees to pay upon
presentation of an appropriate invoice(s) therefor (together
with such reasonable detail concerning the matters covered by
such invoice(s) as the Company may in good faith request) the
reasonable out-of-pocket expenses of (i) the Purchasers,
including reasonable attorneys' fees and disbursements, in
connection with the negotiation, preparation and execution of
this Agreement and the issuance of the Standby Commitment on
the Effective Date, not to exceed in the aggregate, $37,500,
(ii) the Agent in connection with its performance of the
transaction contemplated to be performed by it hereunder, and
(iii) X. X. Xxxxxxx, Inc. and its counsel, LeBoeuf, Lamb,
Xxxxxx & XxxXxx, in connection with the negotiation,
preparation and execution of this Agreement, as separately
agreed in writing between the Company and X. X. Xxxxxxx, Inc.,
a true and correct copy of which writing will be provided to
the Purchasers by the Company promptly after execution hereof.
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b. In the event that the Standby Commitment is not
issued by the Purchasers as herein contemplated, (i) by mutual
agreement in writing of the Company and the Purchasers or (ii)
as a result of the breach of this Agreement by either the
Company or the Purchasers, the Company and the Purchasers, in
the case of clause (i), or the breaching party in the case of
clause (ii), as the case may be, agree(s) to pay upon
presentation of an appropriate invoice therefor (together with
such reasonable detail concerning the matters covered by such
invoice(s) as the Company may in good faith request) the
reasonable fees and out-of-pocket expenses of X. X. Xxxxxxx,
Inc. and the reasonable fees and disbursements of LeBoeuf,
Lamb, Xxxxxx & XxxXxx in acting as counsel for X. X. Xxxxxxx,
Inc. in connection with negotiation and preparation of this
Agreement, which shall not exceed in the aggregate $37,500;
PROVIDED, HOWEVER, that in the event the Company is the
breaching party in the case of clause (ii), the Company agrees
to pay the reasonable out-of-pocket expenses of the
Purchasers, including reasonable attorneys' fees and
disbursements, in connection with the negotiation, preparation
and execution of this Agreement prior to the Company's breach,
not to exceed in the aggregate $37,500; PROVIDED FURTHER,
HOWEVER, that in the event the Purchasers are the breaching
parties in the case of clause (ii), the Purchasers agree to
pay the reasonable out-of-pocket expenses of the Company,
including reasonable attorneys' fees and disbursements, in
connection with the negotiation, preparation and execution of
this Agreement prior to the Purchasers' breach, not to exceed
in the aggregate $37,500.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. On the
Effective Date, the Purchasers will deliver to the Company a certificate signed
by their authorized representatives that represents and warrants to and agrees
that, as of the Effective Date:
a. Each of the Purchasers has been duly organized and,
in the case of Sass Partnership, is a validly existing
Delaware limited partnership and, in the case of
International, is a validly existing British Virgin Islands
company, in each case, duly organized and in good standing
under the laws of its respective jurisdiction of organization,
with power and authority to own its respective property and
conduct its respective business and to enter into and perform
this Agreement.
b. International is generally subject to suit and
neither it nor its property has any right of sovereign or
other immunity from suit, or in respect of matters of
jurisdiction or execution.
c. This Agreement has been duly authorized, executed and
delivered by the Purchasers and constitutes the valid, legal
and binding obligation of the Purchasers enforceable against
the Purchasers in accordance with its terms.
d. The Purchasers have a combined net worth and partners
capital, computed in accordance with generally accepted
accounting principles, of not less than
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$200,000,000 (Sass Partnership has a net worth (partners'
capital) of not less than $125,000,000 so computed and
International has a net worth of not less than $75,000,000 so
computed) and each of the Partners has sufficient unrestricted
liquid assets and the financial ability to fully perform its
obligations under the Stand-by Commitment and its respective
obligations hereunder. The financial statements of the
Purchasers furnished to the Company prior to execution and
delivery of this Agreement have been prepared in accordance
with generally accepted accounting principles consistently
applied and fairly present the pertinent results of operations
for the periods indicated and the financial position at the
end of such periods of the Purchasers, except as set forth in
the footnotes thereto.
e. No consent, approval, authorization or order of, or
filing with, any governmental agency or body of any court is
required for the consummation by the Purchasers of the
transactions contemplated by this Agreement in connection with
the performance by Purchasers of the Stand-by Commitment.
f. The execution, delivery and performance of this
Agreement and the Standby Commitment and the consummation of
the transactions herein and therein contemplated will not
result in a breach or violation by Purchasers of any of the
terms and provisions of, or constitute a default under, (i)
any statute, rule or regulation, or any order of any
governmental agency or body or any court having jurisdiction
over the Purchasers or any subsidiary of the Purchasers or any
of their properties or (ii) any agreement or instrument to
which the Purchasers or any subsidiary is a party or by which
the Purchasers or any subsidiary is bound or to which any of
the properties of the Purchasers or any subsidiary is subject,
or (iii) the certificate of incorporation or by-laws of the
Purchasers or any subsidiary of the Purchasers which currently
conducts business.
g. No suit, action, claim or governmental proceeding has
been instituted or, to the knowledge of the Purchasers,
threatened against, and no order, decree or judgment of any
court agency or other governmental authority shall have been
rendered against, the Purchasers to restrain or prohibit the
performance by Purchasers of this Agreement or the
transactions contemplated by this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. On the
Effective Date, the Company will deliver to the Purchasers a certificate signed
by its President or General Counsel that represents and warrants that, as of
the Effective Date:
a. The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus (as hereafter defined).
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b. A registration statement (No. 33-89764), including a
prospectus, relating to (i) the Plan, (ii) securities to be
issued in connection with the Plan and (iii) the Ticket
Vouchers, has been filed by the Company with and declared
effective on May 12, 1995 by, the Securities and Exchange
Commission (the "Commission"). Such registration statement is
hereinafter referred to as the "Registration Statement," and
such prospectus, including all materials incorporated therein
by reference therein, as the "Prospectus."
c. The Registration Statement including the Prospectus,
taken as a whole, does not include any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading in so far as relevant and material to the
financial condition of the Company, to the Ticket Vouchers or
the transactions contemplated hereby.
d. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid, legal and
binding obligation of the Company enforceable against the
Company in accordance with its terms.
e. The Ticket Vouchers have been duly authorized and
validly issued by the Company and the redemption of the Ticket
Vouchers by the Company in accordance with Section 2 of this
Agreement has been duly authorized by all necessary corporate
or judicial action.
f. The Ticket Vouchers conform to the description
thereof under the definition of "Ticket Voucher" contained in
Section 1.1.159 of the Plan.
g. As of the Effective Date, $30,000,000 face amount of
Ticket Vouchers were issued and outstanding.
h. No consent, approval, authorization or order of, or
filing with, any governmental agency or body of any court is
required for the consummation by the Company of the
transactions contemplated by this Agreement in connection with
the issuance and redemption by the Company of the Ticket
Vouchers, or resale of the Ticket Vouchers, except any such as
have been obtained and made.
i. The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation by the
Company of any of the terms and provisions of, or constitute a
default under, (i) any statute, rule or regulation, or any
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company
or any of their properties or (ii) any agreement or instrument
to which the Company or any subsidiary is a party or by which
the Company or any subsidiary is bound or to which any of the
properties of the Company or any subsidiary is subject, or
(iii) the certificate of incorporation or
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by-laws of the Company or any subsidiary of the Company
which currently conducts business.
j. No suit, action, claim or governmental proceeding has
been instituted or, to the knowledge of the Company,
threatened against, and no order, decree or judgment of any
court agency or other governmental authority shall have been
rendered against, the Company to restrain or prohibit this
Agreement or the transactions contemplated by this Agreement,
7 . COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Purchasers that:
a. The Company will endeavor in good faith to advise the
Purchasers promptly of any proposed amendment or supplement to
the Plan prior to the Effective Date which affects the
Purchasers and if the Company effects any such amendment or
supplement without the Purchasers' consent which materially
adversely affects the Purchasers, Purchasers may by prompt
written notice to the Company terminate this Agreement and, in
such event, the Company shall reimburse the Purchasers for
their reasonable out-of-pocket expenses, including reasonable
attorneys' fees and disbursements, if any, incurred in
connection with such termination, together with payment of a
termination fee of $540,000. The Company will endeavor in
good faith to also advise the Purchasers of any judicial or
administrative order materially affecting the Plan or any of
the transactions contemplated by the Plan or this Agreement
and will use its best efforts to prevent the issuance of any
such order materially adversely affecting the rights of the
Purchasers.
b. The Company will furnish to the Purchasers copies of
the Confirmation Order, and all amendments and supplements
thereto, in each case as soon as available and in such
quantities as the Purchasers shall reasonably request.
c. The Ticket Vouchers will be in bearer form
substantially in the form attached hereto as EXHIBIT "A".
Records of the serial numbers applicable to specific holders
of Ticket Vouchers will be maintained by the Agent rather than
the Company and will be accessed by the Company only for
purposes of security and/or control when and to the extent the
Company in good faith believes there has been, or may have
been, improper use, reproduction or alteration of Ticket
Vouchers.
d. If required by any governmental agency of competent
jurisdiction in the United States, the Company will arrange
for the qualification of the purchase and resale of the Ticket
Vouchers under the laws of such jurisdictions as the
Purchasers may reasonably designate and will continue such
qualification in effect so long as reasonably requested by the
Purchasers.
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e. The Company will promptly file any forms 10K, 10Q or
8K required to be filed with the Commission under applicable
law and furnish to the Purchasers copies thereof promptly upon
the filing thereof.
f. The Company will honor Ticket Vouchers in accordance
with their terms whether tendered directly to the Company or
indirectly through a travel agent, interline agreement or
otherwise.
g. In any subsequent bankruptcy, reorganization or
similar proceeding, the Company will (i) continue to honor the
Ticket Vouchers in accordance with their terms and (ii) treat
the Ticket Vouchers as "tickets" and holders of the Ticket
Vouchers as "passengers/ticket holders."
h. As part of the Company's transmittal letter to
persons entitled to receive Ticket Vouchers under the Plan,
the Company will include a notice of the Standby Commitment in
a form reasonably satisfactory to the Purchasers and will
furnish to the Purchasers such copies thereof as the
Purchasers may reasonably request.
i. The Company will take such further actions and
execute and deliver to the Purchasers such further documents
and instruments as may be necessary to fully and completely
consummate the transactions and agreements contemplated by
this Agreement.
j. The Company agrees not to enter into any agreements
for the sale or disposition of all or substantially all of the
Company's assets (in one or more transactions), or a merger,
consolidation or other business combination involving all or
substantially all of the Company's assets unless the Company
provides the Purchasers with the express, written agreement by
the purchaser(s) or other successor(s) to assume the Company's
obligations and covenants hereunder and, after giving effect
to any such sale, disposition, merger, consolidation or other
business combination, the company or other successor(s) shall
meet the requirements of Section 6 hereof.
k. In the event the Company shall fail, for any calendar
month after the Expiration Date until all of the Ticket
Vouchers are redeemed in full, to maintain an average balance
of unrestricted domestic cash of not less than $70 million,
the Company shall be obligated to repurchase from the
Purchasers all Purchased Ticket Vouchers then held by the
Purchasers at the applicable Discounted Redemption price as
set forth in Section 2.c. hereof, such mandatory repurchase to
be effected within 5 business days after receipt of written
demand therefor from the Purchasers. Unrestricted domestic
cash computed for this purpose with respect to any calendar
month after December 31, 1995 shall exclude 50% of the cash
proceeds to the Company, if any, derived from any of the
following subsequent
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to the Effective Date: (i) an equity rights offering, (ii)
any working capital loan facility in addition to the Company's
currently existing and fully drawn asset and receivables based
loans from Karabu Corp., (iii) any change in the applicable
formulae (as distinct from day to day changes in holdback
levels in accordance with current procedures) which results in
any reduction in credit card processing holdback levels and
(iv) any sale of capital assets outside the ordinary course of
business. Conversely, any decrease in unrestricted domestic
cash, resulting from any change in the applicable formulae (as
distinct from day to day changes in holdback levels in
accordance with current procedures) governing credit card
processing holdback levels, shall be excluded.
In addition, the Company will maintain for the period of four
calendar months ended October 31, 1995 and on a cumulative
monthly basis thereafter, tested as of the last day of each
month through December 1995, earnings before interest and
taxes plus depreciation and amortization ("EBITDA") of not
less than 50% of the following amounts:
Cumulative
PERIOD EBITDA EBITDA
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July 1 - October 31, 1995 $227,600,000 $227,600,000
November 1995 $ 28,900,000 $256,500,000
December 1995 $ 30,100,000 $286,600,000
;PROVIDED, HOWEVER, the Company shall not be required to
maintain such EBITDA levels with respect to any calendar month
during which the Company maintains an average balance of
unrestricted domestic cash of not less than $120 million.
Upon request by the Purchaser, the Company's chief financial
officer will execute and deliver to the Purchaser a
certificate certifying that the conditions of this subsection
are satisfied.
l. The Company will not purchase, publicly offer to
purchase, or otherwise enter into any legally binding
agreement to acquire prior to the Expiration Date any of the
Ticket Vouchers other than in accordance with (i) this
Agreement and (ii) the terms of the Ticket Vouchers. Should
the Company, subsequent to the Expiration Date and prior to
the redemption of all Ticket Vouchers purchased by the
Purchasers pursuant to the Standby Commitment, optionally
purchase from any person other than the Purchasers or in
accordance with the terms of the Ticket Vouchers, without the
prior written consent of the Purchasers, any of the Ticket
Vouchers then, in that event, the mandatory redemption dates
specified in clauses a.(2) and (3) of Section 2 hereof will be
accelerated seriatim so that the mandatory redemption next
scheduled will be rescheduled to the date upon which such
optional purchase occurs and each succeeding scheduled
redemption to the 15th day of each successive month
thereafter. For example, if the Company optionally
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repurchases Ticket Vouchers from any person other than the
Purchasers during the month of November, the Scheduled
Redemption for March, 1996 would be changed to the date in
November of the optional repurchase, and the balance of the
April, May and June, 1996 Scheduled Redemption Dates would be
accelerated to the 15th day of December, 1995, January, 1996
and February, 1996, respectively. In such event, the credit
referred to in Section 2.b. shall be applicable to the final
rescheduled Scheduled Redemption. In the event of the
acceleration of such Scheduled Redemption Dates, the price at
which such Ticket Vouchers shall be redeemed is the Discounted
Redemption Price specified in Section 2.6.
m. Prior to entering into any standby purchase agreement
for the standby purchase by any third party of any Ticket
Vouchers to be distributed by the Company subsequent to the
Settlement Date before the redemption of all Ticket Vouchers
purchased by the Purchasers pursuant to the Standby
Commitment, the Company will provide not less than 72 hours
prior written notice to the Purchasers at the address
specified in Section 16 to permit Purchasers to make a written
offer to the Company to act as standby purchaser with respect
to the Ticket Vouchers to be distributed subsequent to the
Settlement Date before the redemption of all Ticket Vouchers
purchased by the Purchasers pursuant to the Standby
Commitment. Should the Company not accept any offer made by
the Purchasers or should the Purchasers not make any offer
within said 72 hour period, the Company shall be free to make
whatever arrangements it may desire with third parties with
respect to any such standby commitment.
8. COVENANTS OF THE PURCHASERS. The Purchasers covenant and
agree with the Company that:
a. The Purchasers will take such further actions and
execute and deliver to the Company such further documents and
instruments as may be necessary to fully and completely
consummate the transactions and agreements contemplated by
this Agreement.
b. The Purchasers agree not to enter into any agreements
for the sale or disposition of all or substantially all of the
Purchasers' assets (in one or more transactions), or a merger,
consolidation or other business combination involving all or
substantially all of the Purchasers' assets unless the
Purchasers provide the Company with the express, written
agreement by the Purchasers or other successor(s) to assume
the Purchasers' obligations and covenants hereunder and, after
giving effect to any such sale, disposition, merger,
consolidation or other business combination, the Purchasers or
other successor(s) shall meet the requirements of Section 5
hereof.
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c. Purchasers agree that any legal action or proceeding
against Purchasers relating to or arising out of or under this
Agreement may be brought in any court of competent
jurisdiction in the State of New York or of the United States
of America for the Southern District of New York, and
Purchasers accept with regard to any such action or proceeding
for themselves and in respect to their property, generally and
unconditionally, the jurisdiction of the aforesaid courts.
Purchasers further irrevocably consent to the service of
process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by
registered or certified U.S. mail, postage prepaid, to the
Purchasers at their addresses provided in Section 16 hereof,
such service to become effective upon receipt or five (5) days
after such mailing, whichever shall first occur. Nothing
herein contained shall affect the right of the Company to
serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against
Purchasers in the British Virgin Islands or in any other
jurisdiction in which Purchasers may be subject to suit. To
the fullest extent permitted by applicable law, Purchasers
hereby waive, and agree not to assert, by way of motion,
defense, counterclaim or otherwise, in any such suit, action
or proceeding any claim that (i) Purchasers are not personally
subject to the jurisdiction of any of the above-named courts
by reason of any immunity or otherwise (ii) their respective
properties are exempt or immune from setoff, execution or
attachment, either prior to judgment or in aid of execution or
(iii) any suit, action or proceeding so brought is in an
inconvenient forum or that the venue of the suit, action or
proceeding is improper or that the subject matter hereof may
not be enforced in or by such courts. Purchasers further
agree that, after final judgment by any such court, they will,
to the fullest extent permitted by applicable law, waive the
benefit of any defense that would hinder or delay the levy,
execution or collection of any amount to which the Company is
entitled hereunder or pursuant to a final judgment of any
court having jurisdiction. The Purchasers hereby irrevocably
designate M.D. Sass Associates, Inc., in the case of Sass
Partnership and M.D. Sass Management, Inc., in case of
International, in each case having an office on the date
hereof at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as the designee, appointee and agent of the Purchasers
to receive service of process in such jurisdiction in any
legal action or proceeding with respect to this Agreement and
such service shall be deemed complete five (5) days after
delivery thereof to said agent, if written notice of such
service shall be given to Purchasers either by such agent or
by the Company, by mailing the same by registered or certified
mail to Purchasers at the addresses set forth in Section 16 or
otherwise as notice is permitted to be given under such
paragraph.
If, for the purpose of obtaining a judgment in any court with
respect to any obligation of Purchasers under this Agreement
it becomes necessary to convert into any other currency any
amount in Dollars due under this Agreement, then that
conversion shall be made at the buying spot rate of exchange
that would be
12
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utilized by the Company to purchase freely transferable
Dollars at the close of business on the day before the day on
which the judgment is rendered.
9. DEFAULT BY THE COMPANY. Each of the following shall
constitute an "Event of Default" by the Company under this Agreement.
a. failure of the Company to pay any Scheduled
Redemption amount or Discounted Redemption amount or interest,
when and as due and payable in accordance with the terms of
this Agreement, which default continues for 5 days after the
date due;
b. failure of the Company to pay any amount (other than
a Scheduled Redemption amount, Discounted Redemption amount or
interest) when and as due and payable in accordance with the
terms of this Agreement, which default continues for 10 days
after notice thereof by the Purchasers to the Company;
c. failure by the Company to observe and perform any of
its covenants under this Agreement, and, if curable, any such
failure continues for 30 days after notice thereof by the
Purchasers to the Company;
d. any representation or warranty of the Company set
forth in Section 6 hereof shall have been untrue or misleading
in any material respect as of the date made and, such untrue
and misleading representation or warranty shall be material as
of the date asserted as an Event of Default hereunder;
e. the Company defaults in any material way under the
terms of any of its material indebtedness for money borrowed
or material aircraft purchase contracts or material aircraft
leases and such default results in the acceleration of such
indebtedness for money borrowed, aircraft purchase contracts
or aircraft leases;
f. The Company ceases to provide commercial air
transportation at a level (based on available seat miles) at
least 70% of the level of available seat miles provided in
1994, in each case computed on a cumulative basis from July 1,
1995 compared to the cumulative average seat miles provided
for the corresponding period in 1994.
g. the Company refuses to honor 5% or more of the
outstanding Ticket Vouchers in accordance with their terms;
h. any final judgment in excess of $25 million is
entered against the Company in any judicial or administrative
proceeding, which judgment is not stayed within 30 days
following the entry thereof;
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15
i. the Company (i) commences a voluntary case or other
proceeding under any state or federal bankruptcy, insolvency
or receivership law, (ii) seeks or acquiesces to the
appointment of a trustee, receiver, liquidator or custodian or
any substantial part of its property, (iii) makes a general
assignment for the benefit of its creditors or (iv) takes any
corporate action authorizing the foregoing; or
j. an involuntary case or other proceeding under any
state or federal bankruptcy, insolvency or receivership law is
commenced against the Company and such involuntary case
remains undismissed and unstayed for 60 days.
10 . DEFAULT BY THE PURCHASERS. Each of the following shall
constitute an "Event of Default" by the Purchasers under this Agreement:
a. failure of the Purchasers to perform its obligations
under the Standby Commitment when and as due and payable in
accordance with the terms thereof and of this Agreement, which
default continues for 5 days after performance is due;
b. prior to performance in full of the Standby
Commitment, failure by the Purchasers to observe and perform
any of their other covenants under this Agreement and, if
curable, any such failure continues for 30 days after notice
by the Company;
c. prior to performance in full of the Standby
Commitment, any representation or warranty of the Purchasers
set forth in Section 6 hereof shall have been untrue or
misleading in any material respect as of the date made and,
such untrue and misleading representation or warranty shall be
material as of the date asserted as an Event of Default
hereunder;
d. prior to performance in full of the Standby
Commitment, any final judgment in excess of $25 million is
entered against the Purchasers in any judicial or
administrative proceeding, which judgment is not stayed within
30 days following the entry thereof;
e. prior to performance in full of the Standby
Commitment, the Purchasers (i) commence a voluntary case or
other proceeding under any state or federal bankruptcy,
insolvency or receivership law, (ii) seek or acquiesce to the
appointment of a trustee, receiver, liquidator or custodian or
any substantial part of its property, (iii) make a general
assignment for the benefit of their creditors or (iv) take any
corporate action authorizing the foregoing; or
f. prior to performance in full of the Standby
Commitment, an involuntary case or other proceeding under any
state or federal bankruptcy, insolvency or
14
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receivership law is commenced against either of the Purchasers
and remains undismissed and unstayed for 60 days.
11. REMEDIES UPON DEFAULT BY THE COMPANY. Upon the occurrence of
any Event of Default by the Company, the Purchasers may, but shall not be
required to, exercise one or more of the following remedies:
a. declare all or any portion of the aggregate amount of
all Scheduled Redemptions (undiscounted) immediately due and
payable, without any presentment, demand, protest or other
notice of any kind to the Company, all of which are hereby
expressly waived. All such accelerated Scheduled Redemption
amounts shall thereafter accrue interest at the Overdue Rate
until paid.
b. sell, assign or otherwise dispose of any or all
unredeemed Ticket Vouchers in one or more public or private
transactions in a commercially reasonable manner upon 5
business days prior written notice to the Company, which is
hereby deemed by the Company to be reasonable notice. The
Company shall, to the extent not otherwise provided by law,
remain liable for any deficiency resulting from such sales.
c. use any or all of the Ticket Vouchers for the
Purchasers' own account without prejudice to the Purchasers'
right to recover all unpaid amounts under this Agreement,
provided that, the Ticket Vouchers used by the Purchasers
shall be credited against any amounts owned to the Purchasers
under this Agreement in an amount equal to the face value
thereof.
d. any other legal or equitable remedy available to the
Purchasers by law or by agreement.
The remedies set forth in this Agreement are cumulative and not exclusive. The
exercise of any remedy shall not preclude the exercise of any other remedy by
the Purchasers.
12. REMEDIES UPON DEFAULT BY THE PURCHASERS. Upon the occurrence
of any Event of Default by the Purchasers, the Company may, but shall not be
required to, exercise one or more of the following remedies:
a. by notice in writing to Purchasers, immediately
terminate all of the Company's obligations under this
Agreement;
b. any other legal or equitable remedy available
to the Purchasers by law or by agreement.
The remedies set forth in this Agreement are cumulative and not exclusive. The
exercise of any remedy shall not preclude the exercise of any other remedy by
the Company.
15
17
13. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS TO ISSUE
STAND-BY COMMITMENT. (A) The obligations of the Purchasers hereunder to issue
the Stand-by Commitment shall be subject to the accuracy of the representations
and warranties of the Company herein, at and as of the date hereof and the
Effective Date, the performance of the Company of its obligations hereunder and
the following conditions precedent:
a. The Company shall have delivered the certificate
described in Section 6 of this Agreement.
b. The Plan shall have been confirmed by an order which
is final and binding and not subject to appeal, rehearing or
stay and there shall be no pending or threatened actions to
revoke such order or to materially modify the Plan.
c. All of the conditions to the Effective Date of the
Plan have been satisfied or waived by the necessary parties
and the Plan is declared effective on or before August 30,
1995.
d. There shall not have occurred, in the reasonable
judgment of the Purchasers, any material adverse change in the
assets, liabilities or business of the Company since the date
of this Agreement.
e. Prior to the commencement of the mailing and
publication of the notice of Standby Commitment for the Ticket
Vouchers, the Purchasers shall have received the opinion of
Xxxxx, Xxxxxxxx & Xxxxxxx, counsel for the Company, dated as
of the Effective Date, substantially in the form attached
hereto as EXHIBIT "B".
f. Prior to the commencement of the mailing and
publication of the notice of the Standby commitment for the
Ticket Vouchers, the Purchasers shall have received an
opinion, dated as of the Effective Date, in form satisfactory
to the Purchasers, of Xxxxxxx P, Xxxxxxx, Esq., General
Counsel of the Company, to the effect that the execution,
delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any agreement or
instrument known to such counsel to which the Company or any
subsidiary of the Company is a party or by which the Company
or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject.
g. No litigation shall have been brought or commenced
against the Purchasers prior to the Effective Date challenging
the propriety or legality of the transactions contemplated
hereby which is not dismissed or withdrawn prior to the
Effective Date.
(B) In the event:
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(i) any representation or warranty of the Company set
forth in Section 6 shall have been untrue or
misleading in any material respect as of the date
made, or
(ii) the Company shall not have maintained an average
balance of unrestricted domestic cash of at least $70
million for the 30 day period prior to the close of
business on the Expiration Date,
the Company shall be obligated to repurchase from the Purchasers all Ticket
Vouchers purchased by the Purchasers pursuant to the Standby Commitment at the
Standby Purchase Price, such repurchase to be made simultaneously with the
purchases by the Purchasers of Ticket Vouchers tendered to the Agent pursuant
to the Standby Commitment. Nothing in this section contained or otherwise in
this Agreement shall be deemed to modify or alter the unconditional nature of
the Standby Commitment. Unrestricted domestic cash shall, for the purposes of
the computations required by this subsection (B), exclude 50% of the cash
proceeds to the Company, if any, derived from any of the following subsequent
to the Effective Date: (i) an equity rights offering, (ii) any working capital
loan facility in addition to the Company's currently existing and fully drawn
asset and receivables based loans from Karabu Corp., (iii) any change in the
applicable formulae (as distinct from day to day changes in holdback levels in
accordance with current procedures) which results in any reduction in credit
card processing holdback levels and (iv) any sale of capital assets outside the
ordinary course of business. Conversely, any decrease in unrestricted domestic
cash, resulting from any change in the applicable formulae (as distinct from
day to day changes in holdback levels in accordance with current procedures)
governing credit card processing holdback levels, shall be excluded.
(C) The Company agrees upon written request by the Purchasers to
make available for inspection by the Purchasers such books and records of the
Company which are necessary to verify that the conditions of this Section have
been met.
14. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligations
of the Company hereunder shall be subject to the accuracy of the
representations and warranties of the Purchasers herein, at and as of the date
hereof and the Expiration Date, the performance by the Purchasers of their
obligations hereunder and the following conditions precedent:
a. The Purchasers shall have delivered the certificate
described in Sections 5 of this Agreement.
b. The Plan shall have been confirmed by an order which
is final and binding and not subject to appeal, rehearing or
stay and there shall be no pending or threatened actions to
revoke such order or to materially modify the Plan.
c. All of the conditions to the Effective Date of the
Plan have been satisfied or waived by the necessary parties
and the Plan shall have been declared effective on or before
August 31, 1995.
17
19
d. Prior to the commencement of the mailing and
publication of the notice of Standby Commitment for the Ticket
Vouchers, the Company shall have received the opinion of
counsel for the Purchasers, dated as of the Effective Date, as
to the matters referred in to clauses a., b., c., e., and f.
of Section 5 hereof, in form and substance reasonably
satisfactory to the Company.
e. No litigation shall have been brought or commenced
against the Company prior to the Effective Date challenging
the propriety or legality of the transactions contemplated
hereby which is not dismissed or withdrawn prior to the
Effective Date.
15. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
agreements, representations and warranties of the Company and of the Purchasers
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of the Purchasers or the Company or any of their
respective representatives, officers or directors or any controlling person
through and including the final Redemption Date, and will survive the
redemption of the Ticket vouchers hereunder by the Company.
16. NOTICES. All notices, demands, instructions and other
communications required or permitted hereunder will be in writing and shall be
personally delivered or sent by registered, certified or express mail, postage
prepaid, return receipt requested, or by telefacsimile (which shall immediately
be followed by the original of such communication) and shall be deemed to he
given when received by the intended recipient or, in the case of telefacsimile,
on the date transmitted to the intended recipient thereof. Unless otherwise
specified in writing in accordance with this Section, such notices, demands
instructions and communications shall be made to the following:
To Purchasers: M.D. Sass Re/Enterprise Partners L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
To the Company: One City Centre
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxxx, Xx. 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
18
20
17. SUCCESSOR. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns.
Except as expressly stated herein, the Purchasers may not assign their
obligations under this Agreement or the Standby Commitment but may, without
restriction, assign their rights hereunder to any affiliated entity and,
following the Settlement Date, to any three or fewer third parties or
affiliated parties. Except as expressly stated herein, the Company may not
assign its obligations under this Agreement without the consent of the
Purchasers.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties hereto and supersedes any and all
prior agreements, arrangements and understandings relating to the matters
provided for herein.
19. INDEMNIFICATION. The Company will indemnify and hold harmless
the Purchasers, X.X. Xxxxxxx, Inc., and their respective officers, directors,
employees and agents (each an "indemnified party") against any claims of,
liabilities to or actions by third persons or entities (collectively,
"Claims"), joint and several, to which such indemnified party may become
subject, insofar as such Claims result from or are based upon any untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, the Plan, or any amendment or supplement to any thereof, or any
related preliminary prospectus, or result from or are based upon the omission
or alleged omission to state in any thereof a material fact required to be
stated therein or necessary to make the statements therein not misleading or
otherwise result from or are based upon any act or omission of the Company, and
will reimburse each indemnified party for any reasonable legal or other
out-of-pocket expenses reasonably incurred by such indemnified party in
connection with investigating or defending such Claims as such expenses are
incurred; PROVIDED, HOWEVER, that the Company will not be liable in any such
case for Claims or expenses resulting from or based upon the breach of this
Agreement or the Standby Commitment by the Purchasers or the negligence, bad
faith acts or omissions or the willful misconduct of any indemnified party.
Each indemnified party shall cooperate fully with the Company in the defense of
any Claim and endeavor in good faith to keep the Company's costs and any Claim
to a minimum consistent with the retention by such parties of the benefits
intended to be conferred upon such indemnified party hereby. Each indemnified
party shall promptly notify the Company of the making of any Claim for which it
believes it is entitled to any indemnity hereunder.
20. APPLICABLE LAW. The Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York
without regard to principles of conflict of laws.
19
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their authorized officers as of the date first
above written.
TRANS WORLD AIRLINES, INC.
By:
------------------------------------
Title:
------------------------------
M.D. SASS RE/ENTERPRISE PARTNERS, L.P.
BY: M.D. SASS ASSOCIATES, INC.,
Managing General Partner
By:
-----------------------------
Title:
---------------------------
M.D. SASS RE/ENTERPRISE
INTERNATIONAL, LTD.
BY: M.D. SASS MANAGEMENT, INC.,
Investment Manager
By:
------------------------------
Title:
--------------------------
Acknowledged and accepted:
X.X. Xxxxxxx, Inc.
By:
------------------------------
Title:
------------------------
20
22
[FORM OF TWA TICKET VOUCHER - FRONT]
TRANS WORLD AIRLINES, INC. [TWA Logo]
TWA Ticket Voucher
AMOUNT: $_______________________
(Not to exceed $50.00)
Issued __________, 1995 Expires _____________, 2000
This TWA Ticket Voucher will be accepted by TWA from any person in lieu
of cash for a discount of up to 50% of the cost of TWA airline tickets for
transportation on TWA flights, subject to the Terms and Conditions on the
reverse side hereof, at any Published Fare (including discounted tickets or
fares), provided such tickets are purchased in the U. S. for travel (i)
originating within the U.S. to any destination on TWA's system or (ii) to and
from such other locations on TWA's routes as applicable law does not prohibit.
"Published Fare" means any fare TWA offers to the general public directly or
through others, including consolidators, and also includes specially negotiated
corporate rates, bulk fares or any other fares offered by TWA whether or not
made available directly or indirectly to the general public.
This TWA Ticket Voucher is freely transferable and may be used by the
holder or sold for cash to the travel agent community or any other willing
purchaser. In order to effect a valid transfer of this TWA Ticket Voucher, the
holder must print the name of the transferee and sign below on the appropriate
lines, and the transferee must sign below.
Initial Transfer Subsequent Transfer
---------------- -------------------
I certify that this TWA Ticket Voucher I certify that this TWA Ticket Voucher
is hereby transferred to: is hereby transferred to:
___________________________________ ___________________________________
Name/Relationship Name/Relationship
___________________________________ ___________________________________
Voucher Holder Signature Voucher Holder Signature
___________________________________ ___________________________________
Transferee Signature Transferee Signature
FOR TICKETING AGENT USE ONLY
----------------------------
TV USED $____________ TICKET _____________________________
FORM SERIAL #
TV RESIDUAL $____________ MCO _________________________________
FORM SERIAL #
TRAVEL AGENT ARC CODE #/COMPANY OUTLET #_______________________________________
TRAVEL AGENT NAME/# ___________________________________________________________
23
[FORM OF TICKET VOUCHER - BACK]
TWA TICKET VOUCHER
TERMS AND CONDITIONS
1. TWA Ticket Vouchers may be used to pay up to 50% of the "Published Fare" of
a TWA airline ticket, including any upgrade costs but excluding all taxes,
airport charges, departure and arrival fees, and similar government
impositions. Subject to such 50% fare limitation, TWA agrees to treat TWA
Ticket Vouchers as equivalent to tickets which have been issued to the
public, and to provide to the holders of TWA Ticket Vouchers, at all times
and under all conditions, the rights afforded to TWA airline ticket holders
including the right to all standard denied boarding compensation and/or
alternative transportation arranged by TWA which is provided to other TWA
ticket holders and without discrimination against the holders of TWA Ticket
Vouchers. TWA Ticket Vouchers will not be redeemable in cash, either by
direct payment or indirectly, through refund of the portion of tickets paid
for with such TWA Ticket Vouchers. Tickets purchased with TWA Ticket
Vouchers will not be exchangeable for tickets on other airlines.
2. To the extent that the amount of a particular TWA Ticket Voucher exceeds the
allowable 50% of the price of the ticket(s) purchased, any excess may be
applied to subsequent purchases. To evidence the unused amount of any TWA
Ticket Voucher, TWA will either (a) issue a transferrable "miscellaneous
charge order" voucher that will be honored as a TWA Ticket Voucher solely
for future purchases on or before the expiration date of the TWA Ticket
Voucher, or, if the TWA Ticket Voucher was issued to a TWA employee, (b)
account for the unused amount by bookkeeping entries.
3. Passengers must comply with all tariff terms and conditions applicable to
the fare of the ticket purchased in part with TWA Ticket Vouchers. These
include, but are not limited to, advance purchase requirements, refund and
reissue restrictions, seat limitations, capacity control requirements and
ticket validity periods.
4. TWA Ticket Vouchers are freely transferable and may be applied by
individuals, travel agencies, ticket brokers, consolidators or any other
person who may from time to time seek to use them to purchase tickets from
TWA.
5. TWA Ticket Vouchers may not be used to purchase transportation on carriers
other than TWA, nor may they be applied to freight or any other charge (such
as, for example, excess baggage, ground handling, tours, in-flight
amenities, or Ambassador's Club dues).
6. Any misuse of TWA Ticket Vouchers in violation of these Terms and Conditions
shall result in the voiding of such misused TWA Ticket Vouchers and shall
also result in the voiding of all other TWA Ticket Vouchers issued to or
held by said person or entity. "Misuse" means any reproduction or
alteration of this TWA Ticket Voucher.
7. TWA is not obligated to replace this or any other TWA Ticket Voucher that is
lost, stolen or destroyed.
8. Individuals redeeming TWA Ticket Vouchers may be required to show
identification. Passengers may be required to show identification at any
time during travel.
9. TWA Ticket Vouchers may not be redeemed retroactively for any previously
issued ticket or in connection with the exchange of any wholly or partially
unused ticket.
10.TWA Ticket Vouchers will be replaced in connection with a refund of a
ticket purchased with TWA Ticket Vouchers only if the ticket is wholly
unused and fully refundable.
TICKETING INSTRUCTIONS
1. This TWA Ticket Voucher, when presented to TWA 2. Calculate the discount amount of the ticket by
or its Authorized Travel Agent, entitles the adding the total dollar amount of the TWA Ticket Voucher(s)
holder to a discount as specified in the Terms submitted, up to a maximum discount amount which is
and Conditions toward the purchase of a ticket 50% of the Published Fare (as defined on the front of
for travel on TWA. THIS TWA TICKET VOUCHER the TWA Ticket Voucher) of the ticket being purchased.
MUST BE SURRENDERED WHEN THE TICKET IS PURCHASED.
3. Subtract PFCs and other fees from the new ticket purchase
2. TWA Ticket Voucher value as specified may be price. Calculate the discounted fare. Enter this amount
applied to the purchase of a ticket, subject to in the "fare" box on the ticket.
the TWA Ticket Voucher Terms and Conditions.
Excess TWA Ticket Voucher Value may be applied 4. Calculate the taxes, PFCs and other fees and enter these
to subsequent purchases as listed in Terms and amounts in the "tax" boxes.
Conditions section 3.
5. Add the "fare" and "tax" boxes to arrive at the total
3. TWA TICKETING INSTRUCTIONS: purchase price of the ticket. Enter this amount in the
"total" box on the ticket.
Reference No. ______________________________.
6. Enter the applicable commission rate in the "commission"
4. Travel Agent Ticketing Instructions - Report as box on the ticket and the sum of the taxes, PFCs and other
_________________________________. fees in the tax box on the ticket.
Automated Ticketing - Travel Agent ticketing All tickets issued must show the ticket designator "____"
personnel should use the Profile _________, followed by the total dollar value of the discount (i.e., the
based on the CRS WORLDSPAN, to see the correct ticket designator for a $50 dollar discount will be ____50.
ticketing instructions. Enter the ticket designator in the "ticket designator" box
on the ticket.
TRAVEL AGENT MANUAL TICKETING - Travel Agent ticketing
personnel should select the ticketing/issuing airline ARC REPORTING PROCEDURE
validation plate then follow the ticketing instructions
below. 1. Treat as a Type A - Discount Certificate.
CALCULATE TICKET AMOUNTS. 2. No REN is required.
1. Calculate the new purchase price of the ticket by 3. Enter the discount certificate number (including the carrier
subtracting the discount amount from the total code) on the ticket in the Endorsements/Restrictions area.
purchase price of the ticket.
4. Place discount certificate on top of the Auditor's Coupon for
a cash sale or on top of the charge form for a credit sale.
5. Refer to Industry Agents' Handbook Section 6.0 for details.
24
August ___, 1995
M.D. Sass Re/Enterprise Partners L.P.
M.D. Sass Re/Enterprise International Ltd.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
I am general counsel for Trans World Airlines, Inc., a Delaware
corporation ("TWA" or the "Company") and have so acted in connection with the
negotiation, execution and delivery by TWA of a Stand-By Purchase Agreement
dated as of August 8, 1995 between you and TWA (the "Purchase Agreement").
Capitalized terms used herein not otherwise defined shall have the meanings
ascribed to such terms in the Purchase Agreement and/or that certain Joint Plan
of Reorganization of TWA and the Company as modified and confirmed by order
(the "Confirmation Order") of the United Bankruptcy Court for the Eastern
District of Missouri (the "Bankruptcy Court") on August 4, 1995 (the "Plan of
Reorganization").
I have examined copies of the Purchase Agreement, the Ticket Vouchers,
Plan of Reorganization, Confirmation Order and Registration Statement No.
33-84944 of TWA on Form S-4 as filed with Securities and Exchange Commission on
October 11, 1994, as amended through Post-Effective Amendment No. 6 dated May
12, 1995 (the "Registration Statement"), and such other instruments, documents
and agreements and matters of law as I have deemed necessary in the
circumstances. In such review, I have assumed the genuineness of all
signatures not affixed by officers of TWA in our presence, the authenticity of
all documents submitted to me as originals, the conformity to originals of all
documents submitted to me as copies and the authenticity of such documents so
submitted.
As to factual matters on which this opinion is based, I have relied
without independent investigation upon the representations and warranties
contained in the Purchase Agreement and upon statements and certificates of
public officials and of TWA. For purposes hereof, "factual matters" shall not
be deemed to include, except in the case of certificates of public officials,
matters which directly or in practical effect constitute the legal conclusions
in question.
25
M.D. Sass Re/Enterprise Partners L.P.
M.D. Sass Re/Enterprise International Ltd.
August 23, 1995
Page 2
Based upon the foregoing and subject to the qualifications and
limitations hereinafter set forth, I am of the opinion that the execution,
delivery and performance by the Company of the Purchase Agreement, and the
consummation by the Company of the transactions therein contemplated, will not
result in a breach or violation of any of the terms and provisions of or
constitute a default under, any agreement or instrument known to me to which
the Company or any subsidiary of the Company is a party or by which the Company
or any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject.
I am duly admitted and qualified to practice in the State of New York
and do not hold myself out as an expert on, or as admitted to practice law in,
any other state. I am opining herein only as to the effect on the subject
transactions of the laws of the State of New York, the business corporation
laws of the State of Delaware and the federal laws of the United States of
America. Except as noted above, I am not opining as to the effect on any of
the matters covered herein of the laws of any other jurisdiction.
I undertake no responsibility to advise you of any change in the laws
after the date hereof that would alter the scope or substance of the opinions
expressed herein. This opinion is intended for your exclusive use and may not
be relied upon by any person or entity other than the addressees hereof. By
receipt and acceptance of or reliance on this opinion, you consent to the
limitations on the scope of our inquiry and the opinions stated herein.
Very truly yours,
Xxxxxxx X. Xxxxxxx
26
EXHIBIT C
[LETTERHEAD OF XXXXX, XXXXXXXX & XXXXXXX]
[Effective Date]
M.D. Sass Re-Enterprise Partners L.P.
M.D. Sass Re-Enterprise International L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
We are counsel for Trans World Airlines, Inc., a Delaware corporation
("TWA" or the "Company") and have so acted in connection with the negotiation,
execution and delivery by TWA of a Stand-By Purchase Agreement dated as of
August __, 1995 between you and TWA (the "Purchase Agreement"). Capitalized
terms used herein not otherwise defined shall have the meanings ascribed to
such terms in the Purchase Agreement and/or that certain Joint Plan of
Reorganization of TWA and the Company as modified and confirmed by order (the
"Confirmation Order") of the United Bankruptcy Court for the Eastern District
of Missouri (the "Bankruptcy Court") on August 4, 1995 (the "Plan of
Reorganization").
In connection with our representation of TWA, we have examined copies
of the Purchase Agreement, the Ticket Vouchers, Plan of Reorganization,
Confirmation Order and Registration Statement No. 33-84944 of TWA on Form S-4
as filed with Securities and Exchange Commission on October 11, 1994, as
amended through Post-Effective Amendment No. 6 dated May 12, 1995 (the
"Registration Statement"), and such other instruments, documents and agreements
and matters of law as we have deemed necessary in the circumstances. In such
review, we have assumed the genuineness of all signatures not affixed by
officers of TWA in our presence, the authenticity of all documents submitted to
us as originals, the conformity to originals of all documents submitted to us
as copies and the authenticity of such documents so submitted.
As to factual matters on which this opinion is based, we have relied
without independent investigation upon the representations and warranties
contained in the Purchase Agreement and upon statements and certificates of
public officials and of TWA. For purposes hereof, "factual matters" shall not
be deemed to include, except in the case of certificates of public officials,
matters which directly or in practical effect constitute the legal conclusions
in question.
Based upon the foregoing and subject to the qualifications and
limitations hereinafter set forth, we are of the opinion that:
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1. TWA is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and has
the corporate power and authority to own its properties and carry on
its business substantially as described in the Registration Statement.
2. The Confirmation Order confirming the Reorganization
Plan is final and binding and not subject to appeal, rehearing or
stay.
3. The Purchase Agreement has been duly authorized,
executed and delivered by the Company and is binding on the Company in
accordance with its terms.
4. The Ticket Vouchers have been duly authorized and
validly issued by the Company and the redemption of the Ticket
Vouchers by the Company on each Redemption Date in accordance with
Section 2 of the Purchase Agreement has been duly authorized by all
necessary corporate or judicial action.
5. The Ticket Vouchers conform in all material respects
to the description thereof under the definition of "Ticket Voucher"
contained in Section 1.1.159 of the Plan of Reorganization.
6. No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by the Purchase
Agreement in connection with the issuance or redemption of the Ticket
Vouchers by the Company or resale of the Ticket Vouchers by the
Purchaser, except such as have been obtained and made.
7. The execution, delivery and performance of the
Purchase Agreement and the consummation of the transactions therein
contemplated will not result in a breach or violation by TWA of any of
the terms and provisions of, or constitute a default under, (i) any
statute, rule or regulation, or, to the extent known to us, any order
of any governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of their
properties or (ii) to the extent known to us, any agreement or
instrument to which the Company or any subsidiary is a party or by
which the Company or any subsidiary is bound or to which any of the
properties of the Company or any subsidiary is subject, or (iii) the
certificate of incorporation or by-laws of the Company or any
subsidiary of the Company which currently conducts business.
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Page 3
The opinions expressed herein are subject to the following assumptions
and qualifications:
(i) no opinion is expressed herein as to the validity of any waiver,
express or implied, of any statutory or constitutional right;
(ii) the opinions expressed herein hereof include and are subject to: (a)
the effect of bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights and remedies of creditors; (b)
the effect of general principles of equity, whether applied by a court
of law or equity; (c) the effect and possible unenforceability of
contractual provisions for choice of governing law; (d) the possible
unenforceability of waivers or advance consents that have the effect
of waiving statutes of limitation or, as to the jurisdiction of
courts, the venue of actions, or, in certain cases, notice; (e) the
possible unenforceability of provisions providing that waivers or
consents by a party may not be given effect unless in writing or in
compliance with particular requirements or that a person's course of
dealing, course of performance, or the like or failure or delay in
taking actions may not constitute a waiver of related rights or
provisions or that one or more waivers may not under certain
circumstances constitute a waiver of other matters of the same kind;
(f) the effect of course of dealing, course of performance, or
the like, that would modify the terms of an agreement or the
respective rights or obligations of the parties under an agreement;
(g) the possible unenforceability of provisions that enumerate
remedies are not exclusive or that a party has the right to pursue
multiple remedies without regard to other remedies elected or that all
remedies are cumulative; (h) the possible unenforceability of
provisions permitting modifications of an agreement only in writing;
(i) the possible unenforceability of provisions that the provisions of
an agreement are severable; (j) the effect of laws requiring
mitigation of damages; (k) the possible unenforceability of provisions
permitting the exercise, under certain circumstances, of rights
without notice or without providing reasonable opportunity to cure
failure to perform; and (l) the possible unenforceability of
provisions requiring indemnification for, or providing exculpation,
release or exemption from liability for, action or inaction, to the
extent such action or inaction involves negligence or willful
misconduct or to the extent otherwise contrary to public policy;
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Page 4
(v) no opinion is expressed herein as to the effect of laws
relating to the legally permissible rates of interest or the
computation or disclosure thereof;
(vi) in rendering the opinions set forth herein, as to the
authority of TWA to execute or issue, and/or the
enforceability of, the Ticket Vouchers and Purchase Agreement,
we have relied on the Confirmation Order authorizing and
approving, inter alia, the issuance of the Ticket Vouchers,
and in connection therewith, authorizing TWA to consummate the
transactions contemplated by the Plan of Reorganization of
TWA.
We are attorneys duly admitted and qualified to practice in the State
of Georgia and do not hold ourselves out as experts on, or as admitted to
practice law in, any other state. We are opining herein only as to the effect
on the subject transactions of the laws of the State of Georgia, the contract
and commercial laws of the State of New York, the business corporation laws of
the State of Delaware and the federal laws of the United States of America.
Except as noted above, we are not opining as to the effect on any of the
matters covered herein of the laws of any other jurisdiction. As to such laws
of the State of New York and the business corporation laws of the State of
Delaware applicable to the opinions set forth herein, we have made such
investigation of such laws as we have deemed necessary to express such
opinions.
We undertake no responsibility to advise you of any change in the laws
after the date hereof that would alter the scope or substance of the opinions
expressed herein. This opinion is intended for your exclusive use and may not
be relied upon by any person or entity other than the addressees hereof. By
receipt and acceptance of or reliance on this opinion, you consent to the
limitations on the scope of our inquiry and the opinions stated herein.
Very truly yours,
XXXXX, XXXXXXXX & XXXXXXX
By:
Xxxxxx X. Xxxxxx
HET:sls
