Karabu Ticket Program Agreement - Trans World Airlines Inc. and Karabu Corp.
KARABU TICKET PROGRAM AGREEMENT
This KARABU TICKET PROGRAM AGREEMENT (the "Agreement") is being entered
into as of this 14 day of June, 1995 between TRANS WORLD AIRLINES, INC., a
Delaware corporation ("TWA"), and Karabu Corp., a Delaware corporation
("Karabu").
W I T N E S S E T H:
WHEREAS, TWA and Karabu have heretofore entered into that certain Loan
Agreement dated as of January 5, 1993, as amended, (the "Receivables Agreement")
and a related Security Agreement dated as of January 5, 1993 (the "Receivables
Security Agreement"); and
WHEREAS, TWA and Karabu have heretofore entered into that certain Note
Agreement dated as of January 5, 1993, as amended, (the "Asset Agreement"), and
TWA and State Street Bank & Trust Company of Connecticut, National Association
(in its individual capacity, "State Street"), as Security Trustee, have entered
into a related Security Agreement -- Trust Deed dated as of January 5, 1993 (the
"Asset Security Agreement"); and
WHEREAS, TWA and Karabu have heretofore amended and supplemented the
Receivables Agreement, the Receivables Security Agreement, the Asset Agreement
and the Asset Security Agreement (such documents as so amended and supplemented,
collectively, the "Loan Agreements") pursuant to that certain Omnibus Amendment
and Supplement to Agreements dated as of March 28, 1994; and
WHEREAS, the aggregate principal amounts of the loans outstanding and
unpaid under the Loan Agreements (the "Karabu Loans") as of the date of this
Agreement is $190 million plus accrued unpaid interest; and
WHEREAS, the Loan Agreements have been further amended and supplemented
pursuant to the terms of that certain Extension, Refinancing and Consent
Agreement of even date herewith by and between TWA and Karabu (the "Extension
and Consent Agreement") to provide for (i) the extension of the maturity of the
Karabu Loans and to reflect certain other agreements between TWA and Karabu and
(ii) consent, upon fulfillment of certain conditions, by the Icahn Entities to,
among other things, the exchange with TWA of the Old PBGC Notes for $244,344,987
principal amount of New PBGC Notes and $77,817,513 principal amount of Equity
Notes redeemable, subject to certain conditions, for 2,658,470 shares of common
stock of TWA in 1995, more or less, all substantially as provided in the
Registration Statement (the "PBGC Debt and Equity Exchange"); and
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WHEREAS, this Agreement is one of the transactions contemplated by the
Extension and Consent Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, TWA and Karabu hereby agree as
follows:
1. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:
"Agreement," "this Agreement," "herein" and words of similar import shall
mean this Ticket Program Agreement.
"ARC" shall mean the Airline Reporting Corporation or its functional
equivalent at any point in time.
"Asset Agreement" shall have the meaning given that term in the recitals
to this Agreement.
"Asset Security Agreement" shall have the meaning given that term in the
recitals to this Agreement.
"Bankruptcy Code" shall mean the United States Bankruptcy Code.
"Bankruptcy Event" shall mean the voluntary commencement by TWA of a case
or proceeding under the bankruptcy laws of the United States of America or the
commencement of a case or proceeding under such laws by any third party against
TWA which is not dismissed within sixty (60) days of the filing thereof;
provided, however, that "Bankruptcy Event" shall not be deemed to include the
filing by TWA of a petition for relief under Chapter 11 of the Bankruptcy Code
accompanied by the necessary consents to the Plan of Reorganization attached as
Appendix B to the Registration Statement.
"Bulk Fare Rate" shall mean an unpublished fare (meaning a price for a
ticket and the rules and restrictions relating to the purchase and use of such
ticket) established by TWA for Domestic Consolidator Fares and International
Consolidator Fares, for other fares negotiated with and at which air
transportation is sold to Consolidators (Domestic) and/or Consolidators
(International) other than Karabu and/or a Tour Operators/Wholesalers, which
must be ticketed pursuant to tickets showing the words "Bulk Fare" (or such
other designation as may be established from time to time by TWA) on the face of
the ticket and which are non-commissionable to the selling entity, net of all
applicable taxes, fees, passenger facility charges and other charges.
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"Commencement Date" shall mean the date of execution of this Agreement.
"Comparable Fare(s)" shall mean with respect to an inventory capacity
limited fare, another inventory capacity limited fare having substantially the
same advance purchase, ticketing time limits, minimum/maximum stay, rebooking,
reissue and refundability requirements, penalty and fee charges.
"Consolidator" shall mean an entity which is authorized by TWA to only
sell air transportation and which acts pursuant to a negotiated airfare
agreement with TWA permitting the sale of tickets at Bulk Fare Rates.
"Consolidator (Domestic)" shall mean a Consolidator offering tickets for
sale between points in the United States.
"Consolidator (International)" shall mean a Consolidator offering tickets
for sale from points in the United States to points outside of the United States
and from points outside of the United States to points in the United States.
"Consolidator Fare(s)" shall mean International Consolidator Fares and
Domestic Consolidator Fares and Domestic Consolidator Matching Fares for
International Consolidator Markets and Domestic Consolidator Markets and for
such other markets as applicable, respectively, for passenger travel on TWA net
of all applicable taxes, fees, passenger facility charges and other charges.
"Domestic Consolidator Fare(s)" shall mean from time-to-time Bulk Fare
Rates computed in accordance with Exhibit A hereto, net of all applicable taxes,
fees, passenger facility charges and other charges.
"Domestic Consolidator Market(s)" shall mean, from time-to-time, the U.S.
origin city and destination markets determined in accordance with Exhibit A
hereto.
"Domestic Consolidator Ticket(s)" shall mean Tickets issued at Domestic
Consolidator Fare(s) for travel on TWA in Domestic Consolidator Markets subject
to the rules, conditions and restrictions set out in this Agreement including
Exhibit A hereto.
"Domestic Consolidator Matching Fare(s)" shall mean Bulk Fare Rates equal
to the Bulk Fare Rates offered for sale to Consolidators (Domestic) in markets
other than Domestic Consolidator Markets, where the Bulk Fare Rate offered for
sale to such Consolidator (Domestic) is less than the System Fare which is a
Comparable Fare to such Bulk Fare Rate in the same market, such Bulk Fare Rate
being net of all applicable taxes, fees, passenger facility charges and other
charges.
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"Domestic Consolidator Matching Ticket" shall mean a Ticket issued at a
Domestic Consolidator Matching Fare.
"End User" shall mean the person who actually uses the Ticket for air
transportation or such person's employer or any entity of which such person is
an owner, partner, officer, director, consultant or agent.
"Equity Notes" shall mean the three non-recourse promissory notes due 2007
in $77,817,513 aggregate principal amount held or to be held by the settlement
trust on behalf of the PBGC and redeemable, subject to certain conditions, for
2,658,470 shares of common stock of TWA in 1995.
"Existing Documentation" shall have the meaning given that term in the
Extension and Consent Agreement.
"Extension and Consent Agreement" shall have the meaning given that term
in the recitals to this Agreement.
"Fifteen Month Period" shall mean the period commencing on the
Commencement Date and ending on the last day of the fifteenth full month after
the Commencement Date.
"Frequent Flyer Bonus Program" shall mean TWA's Frequent Flyer Bonus
Program or any similar program from time to time adopted by TWA.
"Icahn Entities" shall mean Mr. Carl Icahn and those entities, including
without limitation, Karabu and Pichin, affiliated with Mr. Carl Icahn.
"Affiliated with" means more than fifty percent (50%) owned, directly or
indirectly, by Mr. Carl Icahn or another entity more than fifty percent (50%)
owned by Mr. Carl Icahn.
"IATA" shall mean the International Air Transport Association or its
functional equivalent at any point in time.
"International Consolidator Fare(s)" shall mean Bulk Fare Rates
established from time-to-time by TWA in International Consolidator Markets for
passenger travel on TWA net of all applicable taxes, fees, passenger facility
charges and other charges.
"International Consolidator Market(s)" shall mean points served by TWA
with transportation from a point in the United States to a point outside of the
United States and from a point outside of the United States to a point in the
United States.
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"International Consolidator Matching Ticket(s)" shall mean Tickets at
International Consolidator Fare(s) which are equal to those Bulk Fare Rates, and
are offered under the same terms and conditions, as any other International
Consolidator Fare.
"Karabu" shall mean Karabu Corp., a Delaware corporation.
"Karabu Loans" shall have the meaning given that term in the recitals to
this Agreement.
"Loan Documents" shall have the meaning given that term in the recitals to
this Agreement.
"Monthly Sales Report" shall have the meaning given that term in Exhibit B
hereto.
"New PBGC Notes" shall mean the three non-recourse promissory notes due
2007 in $244,344,987 original aggregate principal amount held or to be held by
the settlement trust on behalf of the PBGC.
"Old PBGC Notes" shall mean the three non-recourse promissory notes due
2007 in $322,162,500 aggregate principal amount held by the settlement trust on
behalf of the PBGC.
"Pension Plans shall mean the defined benefit pension plans identified as
the Pilots' Plan, the Employees' Plan and the IFFA Plan in that certain
Settlement Agreement dated as of January 5, 1993 between TWA, the Official
Unsecured Creditors' Committee of Trans World Airlines, Inc., the International
Association of Machinists and Aerospace Workers, the Independent Federation of
Flight Attendants, the Air Line Pilots Association, International, the Transport
Workers Union of America, Carl C. Icahn, certain affiliates of Mr. Icahn and the
PBGC.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"PBGC Debt and Equity Exchange" shall have the meaning given that term in
the recitals to this Agreement.
"Pichin" shall mean Pichin Corp., a Delaware corporation.
"Purchase Price" shall mean the purchase price to Karabu of Tickets for
passenger travel on TWA sold to Karabu pursuant to the Ticket Programs.
"Published Fare(s)" shall mean the tariff or other fare established by TWA
for passenger travel on TWA, net of all applicable taxes, fees, passenger
facility charges and other charges.
"Receivables Agreement" shall have the meaning given to that term in the
recitals to this Agreement.
"Receivables Security Agreement" shall have the meaning given to that term
in the recitals to this Agreement.
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"Registration Statement" shall have the meaning given such term in the
Consent and Extension Agreement.
"Settlement Trust" shall mean the trust created pursuant to the Settlement
Trust Agreement dated as of January 5, 1993 between TWA, as grantor, and
American National Bank and Trust Company of Chicago, as trustee, as amended or
supplemented from time to time.
"System Fare(s)" shall mean Tickets whose Purchase Price by Karabu from
TWA shall be fifty-five (55%) of the Published Fares(s) net of all applicable
taxes, fees, passenger facility charges and other charges.
"System Ticket(s)" shall mean Tickets issued at a System Fare(s).
"Term" shall mean the period commencing on the Commencement Date and
ending on the last day of the ninety-ninth (99th) full month following the
Commencement Date.
"Ticket Programs" shall mean the System Ticket program, the Domestic
Consolidator Ticket program, the International Consolidator Matching Ticket
program and the Domestic Consolidator Matching Ticket program collectively.
"Ticket(s) shall mean a ticket or tickets issued under the Ticket
Programs, including but not limited to System Tickets, Domestic Consolidator
Tickets and International Consolidator Matching Tickets and Domestic
Consolidator Matching Tickets plated on TWA on standard industry or TWA ticket
stock or through any other electronic or "ticketless" method that TWA may from
time-to-time adopt for air transportation of passenger(s) on TWA excluding
tickets for air transportation originating or terminating in St. Louis,
Missouri.
"Tour Operator/Wholesaler" shall mean a Travel Agent or other person
authorized by TWA to sell inclusive tour packages in selected markets with air
transportation at a Bulk Fare Rate with an inclusive tour package consisting of
air/ground or air/sea components which are advertised using TWA's name and sold
at a single price which does not separately identify the Bulk Fare Rate.
"Tour Operator/Wholesaler Matching Fare" is defined in Section 3(g)
hereof.
"Travel Agent" shall mean any ARC/IATA travel agent or agency selling
airline tickets to the public but excludes any such travel agent which meets all
of the following conditions: (i) such travel agent is an Icahn Entity and (ii)
such travel agent is not Affiliated with any other
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independent travel agent, group or consortium of travel agents other than other
Icahn entities or travel agent trade associations.
"TWA" shall mean Trans World Airlines, Inc., a Delaware corporation, its
successors and assigns.
"UATP Account" shall mean a Universal Air Travel Plan master account, and
any sub-accounts, established by TWA in favor of Karabu under the Ticket
Programs pursuant to which UATP credit cards will be issued by TWA upon request
by Karabu under the airline industry Universal Air Travel Plan to Icahn Entities
and End Users which may not be Travel Agents; such credit cards to be authorized
for use solely to purchase Tickets for air travel on TWA (and such credit card
shall so state).
"United States" shall mean the States of the United States, the District
of Columbia and the territories and possessions of the United States.
"Year" shall mean any period of 365/6 consecutive days.
References to month or monthly period shall mean calendar months.
2. Ticket Programs. Karabu shall be entitled to issue the following Tickets
under the terms and conditions set forth in this Agreement:
(a) Domestic Consolidator Tickets:
(i) with respect to Tickets sold during the Fifteen Month Period,
Karabu shall be entitled to purchase and TWA shall be obligated to sell up to a
maximum amount of $120 million of Domestic Consolidator Tickets, which $120
million will be computed based on the Published Fares used in computing the
Domestic Consolidator Fares at which Tickets are sold to Karabu or for Karabu's
account; and
(ii) with respect to Tickets sold during the period commencing with
the date which is the day following the last day of the Fifteen Month Period,
Karabu shall be entitled to purchase and TWA shall be obligated to sell up to a
maximum amount of $70 million of Domestic Consolidator Tickets per Year for
seven consecutive Years, which $70 million will be computed based on the
Published Fares used in computing the Domestic Consolidator Fares at which
Tickets are sold to Karabu or for Karabu's account; and
(b) Other Tickets - With respect to Tickets other than Domestic
Consolidator Tickets, during the Term Karabu shall be entitled to purchase and
TWA shall be obligated to sell System Tickets, Domestic Consolidator Matching
Tickets and International Consolidator Matching Tickets.
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(c) In the event that the restructuring described in the Registration
Statement is not accomplished, Karabu and the other Icahn Entities agree to
consent to any future PBGC Debt and Equity Exchange proposed by TWA which is on
substantially similar and no less favorable terms to Karabu as the PBGC Debt and
Equity Exchange described in the Registration Statement.
3. Ticket Prices.
(a) Tickets sold to Karabu pursuant to the Ticket Programs contemplated by
this Agreement shall be priced at the Purchase Price, net to TWA, which shall
be: (i) the Domestic Consolidator Fare which shall be 40% of the applicable
Published Fare determined in accordance with this Agreement including Exhibit A
hereto; (ii) the System Fare which shall be fifty-five percent (55%) of the
Published Fare; or (iii) the International Consolidator Fare, and (iv) the
Domestic Consolidator Matching Fare.
The Purchase Price is exclusive of tax. All applicable taxes, fees, fuel,
passenger facility, terminal and security charges which are not included in the
Published Fares or in the International Consolidator Fare(s) or the Domestic
Consolidator Fare(s) or the Domestic Consolidator Matching Fare and which are
charged to persons paying such fares must be added to the total fare collected.
Karabu may not absorb any passenger facility or similar such surcharge otherwise
due from a passenger. The Published Fare for each Ticket sold at the Purchase
Price under this Agreement will be shown on the face of each Ticket unless the
Ticket is issued at a Consolidator Fare or at a Tour Operator/Wholesaler
Matching Fare in which case the fare code "Bulk Fare" or such similar term as
TWA may from time to time designate for use generally on tickets sold to
Consolidators (other than Karabu) and/or Tour Operators/Wholesalers will be
shown on the face of such tickets with the Bulk Fare Rate and the applicable
Published Fare shown on the auditor's coupon for each such Ticket.
Karabu shall be responsible for proper ticketing under the correct fare
code and under all such other terms as may be set forth in this Agreement,
including but not limited to Exhibits A and B hereto and under all other
applicable terms and conditions as may be required by TWA and which are required
by TWA on the sales of tickets generally and any failure to show the correct
fare code will not diminish the Purchase Price payable to TWA. In the event that
TWA itself issues any Tickets, Karabu shall not be responsible for ticketing
errors on such Tickets. Any Tickets that are refundable or reissuable only upon
payment of a fee or other penalty or charge, will be permitted to be refunded or
reissued without payment of any such fee, penalty or charge except that Domestic
Consolidator Matching Tickets are subject to the same refund, reissue and
penalty rules as are applicable to the tickets being offered by the Consolidator
(Domestic) whose fare is being matched. Except for Domestic Consolidator
Tickets, other Tickets which are totally non-refundable may be applied in full
to the purchase of other Tickets without fee, penalty or charge.
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(b) During the terms of the Ticket Programs, Karabu will be entitled to
elect to purchase Tickets from TWA from time-to-time pursuant to such Ticket
Programs, at its option and subject to all applicable conditions with respect to
each Ticket at the Purchase Price which shall be:
(i) fifty-five percent (55%) of Published Fare(s), net to TWA, or
(ii) the International Consolidator Fare(s); or
(iii) the Domestic Consolidator Fare(s), or
(iv) the Domestic Consolidator Matching Fare(s), or
(v) Tour Operator/Wholesaler Marching Fare(s).
(c) With respect to transportation originating in the United States and
destined for a point outside of the United States, TWA will provide
International Consolidator Fare(s) to Karabu under the same price conditions as
TWA is then providing to any other Consolidator (International) operating in
International Consolidator Markets, exclusive of special promotional items or
services of de minimus value that may be provided to other Consolidators in
connection with specific, limited promotional activities. TWA will provide to
Karabu such information and at the same time as TWA provides in the normal
course to other Consolidators (International) operating in International
Consolidator Markets and upon Karabu's written request, TWA will provide to
Karabu a list of then applicable Bulk Fare Rates charged to Consolidators
(International) operating in TWA's International Consolidator Markets.
(d) With respect to transportation originating outside of the United
States and destined for a point in the United States, Karabu may at its option
sell Tickets at International Consolidator Fares for such passenger
transportation under the same conditions as TWA is then providing to any other
Consolidator (International) which is then selling tickets for transportation
originating at points outside of the United States in International Consolidator
Markets. Such Tickets at International Consolidator Fares for transportation
originating outside of the United States may only be sold by an Icahn Entity
which is an IATA approved agency and is otherwise operating in compliance with
the laws of the nation in which the transportation is sold and in which the
transportation originates and which otherwise complies with the sales reporting
procedures otherwise applicable to tickets sold by others outside of the United
States which currently includes but are not limited to bank settlement plans.
(e) TWA will provide Domestic Consolidator Fares to Karabu only in
accordance with the rules, terms and conditions which are set forth herein and
in Exhibits A and B which are attached hereto and made a part hereof
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(f) In the event that TWA currently has or in the future enters into an
agreement with a Consolidator(s) (Domestic) for the sale of transportation in
the Domestic Consolidator Markets at Bulk Fare Rates which are equal to or less
than the Purchase Price to Karabu of a Comparable Fare, TWA, shall for such
period of time as such Bulk Fare Rate remains in effect, reduce the Purchase
Price to Karabu to an amount that is 10% lower than the Bulk Fare Rate provided
to the Consolidator(s) (Domestic) and Tickets issued at such lower rate shall be
Domestic Consolidator Tickets. For the purposes of this section, the Bulk Fare
Rate provided to the Consolidator (Domestic) is exclusive of special promotional
items or services of de minimus value such as luggage tags, drink chits, travel
bags or similar such items that may be provided to other Consolidators
(Domestic) in connection with specific, limited promotional activities.
(g) TWA agrees that it will provide to Karabu a written summary of any
agreement(s) which it now has or which it may in the future enter into with any:
(i) Consolidator(s) (Domestic) and/or, (ii) with any Tour
Operator(s)/Wholesaler(s) for the sale of inclusive tour packages for travel
within the United States. Such summaries shall set out the Bulk Fare Rates for
markets covered by any such agreement(s) including all applicable terms and
conditions applicable to the reservations, sale, ticketing and use of such Bulk
Fare Rates. Summaries of all such agreements currently in effect will be
provided to Karabu within ten (10) business days following the execution of this
Agreement. Summaries of any amendments to such existing agreements or of any new
agreements entered into during the Term of this Agreement, upon execution by
both parties to such amendments or agreements, shall be provided to Karabu
promptly but in any event no later than the earlier of within five (5) business
days of execution by both parties or within five (5) business days prior to the
effectiveness for use of the Bulk Fare Rates covered by such amendments or
agreements. If any Consolidator (Domestic) or Tour Operator/Wholesaler can
purchase tickets from TWA at a Bulk Fare Rate in a market which is less than the
System Fare in the same market which is a Comparable Fare to such Bulk Fare
Rate, then Karabu. shall have the right to buy Tickets at the Domestic
Consolidator Matching Fare in such market or at the Bulk Fare Rate provided to
the Tour Operator/Wholesaler in such market (under the same terms, conditions
and rules as may be applicable to such Bulk Fare Rate; the "Tour
Operator/Wholesaler Matching Fare") as the case may be. Karabu and TWA agree
that in view of the complexity and changing nature of fares in individual city
pair markets, which has the effect of changing the Purchase Price of fares in
such individual markets, it is not possible for TWA to determine with accuracy
on a continuing basis the differential between Bulk Fare Rates provided to such
Consolidator(s) (Domestic) and/or Tour Operator(s)/Wholesaler(s) in all markets
and System Fares which are Comparable Fares to such Bulk Fare Rates in the same
markets. The occurrence of any such differential(s) shall not at any time
constitute a violation of this Agreement including but not limited to the terms
set out in Section 12 hereunder.
(h) For the purposes of the foregoing clauses of this Section 3 concerning
Bulk Fare Rates offered by TWA to other Consolidators (Domestic) and Tour
Operator(s)/Wholesaler(s), in comparing the Purchase Price to Karabu with Bulk
Fare Rates charged to other
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Consolidators (Domestic) and Tour Operator(s)/Wholesaler(s), the Bulk Fare Rates
charged to other Consolidators (Domestic) and Tour Operator(s)/Wholesaler(s)
shall be net of any commissions or the value (determined by TWA in good faith)
of other economic incentives paid or allowed to such other Consolidators
(Domestic) and Tour Operator(s)/Wholesaler(s), including advertising allowances.
4. No Commissions Payable. No commissions shall be payable by TWA for Tickets
sold pursuant to this Agreement.
5. Additional Ticket Restrictions. Tickets sold by TWA to Karabu pursuant to
this Agreement shall:
(i) not include Tickets whose origin or destination is St. Louis,
Missouri;
(ii) not include flights on other carriers operated under a code
share and/or block space arrangement;
(iii) be sold without any public advertisement or public promotion
referring directly or indirectly to TWA in any way (including without
limitation, any written advertisement through newspaper and/or facsimile
solicitations);
(iv) not during the Fifteen Month Period and during any subsequent
Year of the Ticket Program exceed the amount of Domestic Consolidator Tickets
permitted to be purchased by Karabu pursuant to Section 2(a)(i) or Section
2(a)(ii) hereunder, respectively (each such Fifteen Month Period and Yearly
limit being referred to as a "Period Cap") provided however that if the Period
Cap is exceeded, TWA shall notify Karabu in writing and with specific detail of
the amount of Domestic Consolidator Tickets sold in excess of the Period Cap and
unless Karabu shall in writing within ten (10) business days of its receipt of
such information identify errors in the calculation, Karabu shall promptly pay
to TWA the difference between the Purchase Price and the applicable Published
Fare for all Domestic Consolidator Tickets sold in excess of the Period Cap
which are not in dispute and thereafter shall promptly pay the same difference
in amounts for all Domestic Consolidator Tickets for which any additional proof
of sale within the applicable period is required. For the purposes of
determining the specific Domestic Consolidator Tickets which exceed the Period
Cap, all Domestic Consolidator Tickets sold after the date during the Fifteen
Month Period or during any subsequent Year on which the Period Cap was exceeded
will be treated as excess; and
(v) not in any one month period during the Term exceed more than 40%
of the Fifteen Month Period or Yearly total of Domestic Consolidator Tickets
permitted to be purchased by Karabu pursuant to Section 2(a)(i) or Section 2
(a)(ii) hereof respectively (a "Monthly Cap"), provided, however, that if the
Monthly Cap is exceeded, TWA shall notify Karabu in writing and with specific
detail of the amount of Domestic Consolidator Tickets sold in excess of the
Monthly Cap and unless Karabu shall in writing within ten (10) business days
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of its receipt of such information identify errors in the calculation, Karabu
shall promptly pay to TWA the difference between the Purchase Price and the
applicable Published Fare for all Domestic Consolidator Tickets sold in excess
of the Monthly Cap which are not in dispute and thereafter shall promptly pay
the same difference in amounts for all Domestic Consolidator Tickets for which
any additional proof of sale within the applicable period is required. For the
purposes of determining the specific Domestic Consolidator Tickets which exceed
the Monthly Cap, all Domestic Consolidator Tickets sold after the date during
the month on which the Monthly Cap was exceeded will be treated as excess.
6. Applicability of Frequent Flier Program. The Frequent Flyer Bonus Program
will apply to Tickets sold pursuant to the Ticket Programs, subject to
applicable rules as provided for by the Frequent Flyer Bonus Program and further
provided that the Frequent Flyer Bonus Program will not apply to Domestic
Consolidator Matching Tickets, International Consolidator Matching Tickets and
Tickets sold at Tour Operator/Wholesaler Marching Fares if the tickets sold to
the Consolidator (Domestic), Consolidator (International) or the Tour
Operator/Wholesaler, as the case may be, at the fare being matched are not
eligible for the Frequent Flyer Bonus Program. As full compensation to TWA for
participation in the Frequent Flyer Program as provided herein and without
regard to the actual miles traveled, Karabu shall pay to TWA: (I) $428,571
during the Fifteen Month Period in four (4) equal installments on the six month,
nine month, twelve month and fifteen month anniversary of the Commencement Date,
and (ii) in each Year following the Fifteen Month Period, $250,000 in four (4)
equal quarterly installments on the three month, six month, nine month and
twelve month anniversary of the first day of such Year.
7. Other Ticket Restrictions. All Tickets sold pursuant to the Ticket Programs
shall be subject to TWA's normal seat assignment and boarding pass rules and
regulations. In addition, Tickets will be valid only on TWA flights, will be
non-assignable to any other carrier and non-endorsable and, to the extent
applicable under TWA's Published Fares, be non-refundable, except as may be
otherwise set forth herein. Except as expressly provided in Sections 2 and 3 and
Exhibit A hereof, the administration and use of Tickets will adhere to all
applicable fare rules. All Tickets will be plated on TWA on standard industry or
TWA ticket stock or through any other electronic or "ticketless" method that TWA
may from time-to-time adopt.
8. Distribution of Tickets. Tickets sold pursuant to the Ticket Program (other
than Tickets sold by Karabu at Consolidator Fares referred to in clauses (ii)
(iii) (iv), and (v) of Section 3(b) and Sections 3(f), (g) and (h) hereof shall
be marketed and sold by Karabu or its agents or a Travel Agent only to the End
User and not to any Travel Agent, Consolidator, or Tour Operator/Wholesaler.
There will be established by TWA one master UATP Account for the Icahn Entities
with multiple sub-card accounts (which may be sub-card accounts of the Master
Account) permitted subject to a one-time $15 administration charge per card
assessed for each sub-card account requested by Karabu. UATP or equivalent cards
may not be issued to any Travel Agent or to any other issuer of tickets which is
not an Icahn Entity or an End User but will
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be issued by TWA, upon application by Karabu and/or its agents, solely to Icahn
Entities and End Users. TWA will issue such card within five (5) business days
after receipt of the necessary documentation. All such UATP or equivalent cards
will bear on the card the following or substantially equivalent language: Valid
Only for travel on TWA and Non-Commissionable. Tickets may be issued at any ARC
or IATA Travel Agency (including, without limitation, a travel agency which is
owned by one or more Icahn Entities), or at any TWA ATO/CTO, or other approved
TWA ticketing outlet (including, without limitation, general sales agents,
provided that Karabu will reimburse TWA for any commissions paid by TWA to
general sales agents on account of Tickets issued to Karabu or for Karabu's
account) provided, however, that Tickets issued at Consolidator Fares and/or
Tour Operator/Wholesaler Marketing Fares may only be issued by Karabu or other
Icahn Entities. Standard Denied Boarding Compensation Rules will apply to all
Tickets sold pursuant to this Agreement as if sold by TWA at Published Fares.
9. TWA Flight Cancellations. TWA will re-protect on other airlines all persons
holding Tickets as if sold by TWA at Published Fares if due to weather
conditions or operational difficulties such person is denied boarding due to the
TWA flight being canceled on which such person holds a reservation, with TWA to
be promptly paid by Karabu an amount equaling TWA's cost based on Rule 240 or
any other similar such rule, term or condition as may be applicable, in excess
of actual Ticket cost. TWA will provide invoices and backup information as set
forth in Exhibit B hereto.
Procedures for billing, paying, provision of accounting records and
account information and adjusting amounts monthly between TWA and Karabu are set
forth in Exhibit B which is attached hereto and made a part hereof
10. Karabu or New PBGC Note Prepayments. Periodically, as provided in this
Section 10, the Purchase Price for Tickets purchased by Karabu or for Karabu's
account pursuant to this Agreement shall either (i) be retained by Karabu and
the amount so retained shall be credited as prepayments against the outstanding
balance of the Karabu Loans, (first to past due interest and then to principal,
pro rata based on the amount of past due interest on, or the outstanding
principal balances of, as the case may be, the notes evidencing the Karabu
Loans) or (ii) at Karabu's option, be paid over to the Settlement Trust by
Karabu, for TWA's account, as prepayments of the New PBGC Notes (and shall be
applied first to pay past due or deferred interest and then to prepay principal
(in inverse order of maturity), pro rata based on the amounts of past due or
deferred interest on, or the outstanding principal balances of, as the case may
be, the New PBGC Notes), provided, however, that so long as the Karabu Loans
have not been paid in full, during each of the Fifteen Month Period and each
subsequent Year of the Ticket Program, until at least the Minimum Prepayment
Amount (as hereinafter defined) has been retained by Karabu and credited as
prepayments of the Karabu Loans pursuant to clause (i) above, not more than 50%
of the aggregate Purchase Price of Tickets purchased by Karabu or for Karabu's
account during such Fifteen Month Period or Year, as the case may be, shall be
paid over to the Settlement Trust as provided in clause (ii) above. "Minimum
Prepayment Amount" means (x)
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$20 million for the Fifteen Month Period and (y) for each Year of the Ticket
Program following the Fifteen Month Period (the "Subject Year") the lesser of
(I) $20 Million or (II) the difference (but not less than 0) between (A) the
product of $20 Million times the number of Years after the Fifteen Month Period
plus one (1) to and including the subject Year and (B) the aggregate amount
retained by Karabu and credited as prepayments of the Karabu Loans pursuant to
clause (i) of the preceding sentence during the Fifteen Month Period and each
subsequent Year of the, Ticket Program to and including the Year immediately
preceding the Subject Year. Karabu shall be responsible for paying over directly
to the Settlement Trust such amount as Karabu elects to have applied against the
New PBGC Notes pursuant to clause (II) of the first sentence of this Section 10.
Karabu shall notify TWA in writing on or prior to the thirtieth (30) day after
Karabu receives from TWA the Monthly Sales Report described in Exhibit B hereto
the amount so paid over to the Settlement Trust on account of the sale of
Tickets included in such Monthly Sales Report and TWA shall credit the
outstanding balance of the Karabu Loans in an amount equal to the aggregate
Purchase Price of Tickets included in such Monthly Sales Report net of the
amounts so paid over by Karabu to the Settlement Trust as indicated in such
written notice to TWA; provided, however, if at any time Karabu shall reasonably
deem itself insecure with respect to the ability of TWA to continue to honor any
Tickets sold under the Ticket Program, Karabu shall notify TWA in writing and
thereafter (until such notice shall be rescinded), there shall not be credited
against the outstanding balance of principal and interest on the Karabu Loans
the lesser of 25% or the highest percentage holdback then being imposed by any
credit card processing center handling TWA's credit card Receivables, of the
amount of proceeds owing to TWA on account of Tickets sold under the Ticket
Program included in such Monthly Sales Report. Any amount not credited against
principal and interest on the Karabu Loans shall (A) accrue interest at the
interest rate applicable to the Karabu Loans (or if such Loans have been paid in
full, at the rate which would have been applicable to the Loans had they
continued to be outstanding), which interest shall be added to the proceeds due
TWA from Karabu in respect of the Ticket Program and (B) be credited, together
with such interest, against the Karabu Loans on such date as TWA receives from
Karabu the next succeeding notice of application of Ticket proceeds unless a
Bankruptcy Event shall occur, in which event the then uncredited amount shall
not be so credited until the then outstanding unused Tickets are actually
utilized for flights on TWA. Karabu shall rescind any such notice at the earlier
of (i) such time as a reasonable creditor would no longer deem itself insecure
with respect to the ability of TWA to continue to honor any Tickets sold under
the Ticket Program or (ii) 30 days after the end of the term of the Ticket
Program or the sale of the last Ticket salable thereunder. After payment in full
of the Karabu Loans, the Purchase Price will be paid over in cash to TWA or, at
Karabu's option, paid over to the Settlement Trust for TWA's account as
prepayments of the New PBGC Notes as provided in clause (ii) of the first
sentence of this Section 10. Payments to TWA or to the Settlement Trust pursuant
to the preceding sentence shall be made on or prior to the thirtieth (30) day
after Karabu receives Monthly Sales Reports covering Tickets sold after the
Karabu Loans are so paid; payments to TWA shall be accompanied by a written
notice of the amount, if any, paid over to the Settlement Trust for application
for TWA's account as a prepayment of the New PBGC Notes (first to overdue or
deferred and unpaid interest and then to principal).
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11. Nondiscrimination. (a) TWA, subject to normal operating conditions of the
computer reservations system which it is then using, will provide no less than
the same access to seat availability in all fare categories on the same basis to
Karabu as it provides to other Travel Agents with respect to all System Tickets
and Tickets sold at Domestic Consolidator Fares and, in the case of sales of all
other Tickets, to other Consolidators (International) and/or Consolidators
(Domestic) respectively. TWA will also comply with the non-discrimination
provisions of Exhibit A hereto; (b) If the Icahn Entities establish or acquire
an ARC or IATA approved travel agency, TWA will deal with any such travel agency
and will permit it to sell air transportation on TWA to and for the account of
such travel agency and its customers in the same manner and on the same basis as
TWA deals generally with other travel agencies (except in so far as any such
dealings would be inconsistent with the terms of this Agreement) and TWA will
not otherwise discriminate against such travel agency.
12. Violation of Terms of the Agreement. (a) (i) If Karabu or another Icahn
Entity (collectively, an "Icahn Entity"):
(aa) commits or engages in conduct constituting a breach of
this Agreement which causes or is reasonably likely to cause material damage to
TWA, or to deprive TWA of any material benefit intended to be provided under
this Agreement, or
(bb) engages in a series of related actions, inactions or
omissions which although individually are in breach of this Agreement, are not
material breaches of this Agreement, but which, when taken together, either
cause or are reasonably likely to cause, material damage to TWA or otherwise
deprives, or is reasonably likely to deprive TWA of any material benefit
contemplated or provided for in this Agreement, or
(cc) engages in a pattern of conduct (through actions,
inactions, or omissions) which individually are in breach of this Agreement and
which when viewed individually would not constitute material breaches of this
Agreement, but when viewed together, either cause or are reasonably likely to
cause material damage to TWA, or otherwise deprives, or is reasonably likely to
deprive TWA of any material benefit contemplated or provided for in this
Agreement; and
(ii) such conduct is not discontinued, such breach is not cured or
such breach does not otherwise cease to exist within five (5) business days of
the Icahn Entity's receipt of a written notice from TWA containing a reasonably
detailed description of the alleged conduct or breach (a "Default Notice");
provided, however, if such conduct is not capable of cure within five (5)
business days, this condition will be satisfied if such cure is commenced and
diligently pursued and satisfied within thirty (30) business days of the Icahn's
Entity's receipt of such Default Notice and further provided that for the
purposes of this Section, debit memos and/or discrepancy notices will, as
applicable, qualify as Default Notices; and
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<PAGE> 16
(iii) TWA subsequently obtains a final, non-appealable judgment from
a court of competent jurisdiction that the Icahn Entity in fact breached this
Agreement and the breach causes or is reasonably likely to cause material damage
to TWA or to deprive TWA of any material benefit intended to be provided under
this Agreement; then, if within the time period after the Icahn's Entity's
receipt of a Default Notice, as referred to in clause (ii) above, the conduct
described in the Default Notice has been discontinued, or the breach described
in the Default Notice has been cured or otherwise ceased to exist, then Karabu
shall pay to TWA immediately on demand, as liquidated damages and not as a
penalty and without any requirement to satisfy subsection(a)(iii) above, an
amount equal to the difference between (x) the Published Fares of all Tickets
sold through the Icahn Entity to all persons pursuant to Section 3(b) hereof
during the time period during which the conduct described in the Default Notice
continued or the breach described in the Default Notice existed, as the case may
be, solely in TWA's market area or areas in which TWA experienced the damage or
deprivation of benefits as specified in the Default Notice and (y) the Purchase
Price of such Tickets.
For the purposes of this Section 12, violation by Karabu of clauses (iv)
or (v) of Section 5 of this Agreement shall not constitute a breach of the
Agreement.
TWA and Karabu acknowledge that certain breaches of this Agreement do not
readily lend themselves to a cure in that no action can be taken by the Icahn
Entity to place the parties in the same position that they were in immediately
prior to the occurrence of such breach. e.g. if an Icahn Entity were to place an
advertisement in violation of Section 5 hereof, the Icahn Entity could take no
action to alter the fact that the advertisement had been made public. In such
instance, TWA and Karabu agree that if the Icahn Entity discontinued the conduct
or the action which gave rise to the breach (e.g. the advertisement is
discontinued), or the breach ceases to exist for any other reason (e.g. the
advertisement was of limited duration and steps were taken, if necessary, to
discontinue it as soon as the Icahn Entity received written notice from TWA),
then Karabu shall be deemed to have cured the breach or the breach shall be
deemed cured, as the case may be, on the date that the conduct or action is so
discontinued or on the date that the breach otherwise ceases to exist provided
that to the extent necessary commercially reasonable steps were taken to cure
the breach upon receipt by the Icahn Entity of the Default Notice relating to
such breach. In such instance, TWA would be entitled to the liquidated damages
set forth in the preceding paragraph if the breach was so cured within the
period specified in clause (ii) above or the liquidated damages provided for in
the next succeeding paragraph of the breach was not so cured within the period
set forth in clause (ii) above.
Notwithstanding the foregoing, if the Icahn Entity shall have failed to
discontinue the conduct or to cure said breach as set forth in such clause (i)
within the time period specified in clause (ii) above, or continues in a pattern
of ten (10) or more such breaches in any thirty-day period (e.g. repeated
violations of the provisions of this Agreement regarding ticketing by an Icahn
Entity exclusive of selling Tickets in excess of the Period Cap and/or the
Monthly Cap as described in clauses (iv) and (v) of Section 5 hereof), then,
upon compliance by TWA with
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<PAGE> 17
clause (a) (iii) above, the Icahn Entity shall immediately pay to TWA, as
liquidated damages and not as a penalty, the sum of Ten Million Dollars
($10,000,000.00), provided, however, that after the Karabu Loans are paid in
full, if the breach by the Icahn Entities results from the failure to pay over
to the Settlement Trust the Purchase Price of Tickets as provided in the last
sentence of Section 10 hereof, the amount of liquidated damages shall be the
greater of Ten Million Dollars ($10,000,000) or the amount that the Icahn
Entities failed to so pay over.
If any third-party, other than another Icahn Entity, with which an Icahn
Entity has a business relationship involving the sale of Tickets by the Icahn
Entity pursuant to this Agreement engages in conduct which, if engaged by an
Icahn Entity, would be a breach of this Agreement, then upon receipt by the
Icahn Entity from TWA of written notice of such conduct containing a reasonable
description thereof, the Icahn Entity shall make commercially reasonable efforts
to cause such third party to cease the conduct causing or otherwise cure such
breach (and for the purposes of this sentence a breach shall be deemed cured as
described in the second preceding paragraph) and, if such breach caused, or is
reasonably likely to cause, material damage to TWA or to deprive TWA of any
material benefit protection intended to be provided under this Agreement and the
Icahn Entity is unable, using commercially reasonable efforts to cause the third
party to cure said breach or cause the same to be cured, upon written request
from TWA, the Icahn Entity will commence and diligently prosecute legal action
against such third party seeking damages for such breach and any recovery to the
Icahn Entity (or TWA, as the case may be) resulting therefrom shall be paid over
to TWA. In the event that the Icahn Entity fails to commence and diligently
prosecute such legal action, TWA may, at Karabu's expense, pursue such action.
No Icahn Entity shall have liability to TWA on account of or any obligation with
respect to any breaches of this Agreement caused by any such third-party except
to comply with this paragraph. TWA acknowledges that while Karabu has an
obligation to inform them of the restrictions set out in this Agreement, it will
not be possible for the Icahn Entities to monitor the activities of all Travel
Agents and end Users with whom the Icahn Entities have business relationships.
In the event that any such Travel Agent or End User engages in conduct not
authorized by the Icahn Entities which causes the Icahn Entities to be in breach
of this Agreement (for example, a Travel Agent uses a UATP account to sell
Tickets to persons other than the UATP cardholder or employees of the UATP
cardholder, or a UATP cardholder purchases Tickets for resale rather than for
use by such cardholder or its employees or a Travel Agent takes a commission on
its issuance or reissuance of a Ticket), such conduct shall be deemed "conduct
by such third-party which, if engaged in by the Icahn Entity would be a breach
of this Agreement" within the meaning of this paragraph, shall not constitute a
breach by the Icahn Entities, and the Icahn Entities sole obligations with
respect thereto shall be to comply with this paragraph.
The remedies for breach by an Icahn Entity set forth in this provision
shall be TWA's sole and exclusive remedies and in no event shall TWA be entitled
to terminate this Agreement or otherwise curtail the Ticket Program provided for
herein as a result thereof.
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(b) (i) If TWA:
(aa) commits or engages in conduct constituting a breach of
this Agreement which causes or is reasonably likely to cause material damage to
Karabu or to deprive Karabu of any material benefit intended to be provided
under this Agreement (which by way of example only shall be deemed to include
deliberate, repeated instances in which TWA denies an Icahn Entity the ability
to make reservations in any specific fare category for a specific flight and
date when there in fact is seat availability for such flight at the time that
the request is made), or
(bb) engages in a series of related actions, inactions or
omissions which, although individually are in breach of this Agreement are not
material breaches of this Agreement, but which, when taken together, either
cause or are reasonably likely to cause, material damage to Karabu (or the other
Icahn Entities), to interfere, in any material respect, with Karabu's or any
other Icahn Entities' ability to market and sell Tickets as contemplated by this
Agreement, or to otherwise deprive, or be likely to deprive, Karabu, or the
other Icahn Entities of any material benefit contemplated or provided for in
this Agreement, and
(cc) engages in a pattern of conduct (through actions,
inactions, or omissions) which individually are in breach of this Agreement and
which when viewed individually would not constitute material breaches of this
Agreement, but when viewed together, either cause or are reasonably likely to
cause material damage to Karabu (or the other Icahn Entities), interfere, in any
material respect, with Karabu's or any other Icahn Entities' ability to market
and sell Tickets as contemplated by this Agreement, or otherwise deprives, or is
likely to deprive, Karabu or the other Icahn Entities any material benefit
contemplated or provided for in this Agreement, and
(ii) such conduct is not discontinued or such breach is not cured or
such breach does not otherwise cease to exist within five (5) business days of
TWA's receipt of a written notice from an Icahn Entity containing a reasonably
detailed, a description of the alleged conduct or breach (a "Default Notice");
provided, however, if such conduct is not capable of cure within five (5)
business days, this condition will be satisfied if such cure is commenced,
diligently pursued and satisfied within thirty (30) business days of TWA's
receipt of such Default Notice; and
(iii) an Icahn Entity subsequently obtains a final, non-appealable
judgment from a court of competent jurisdiction that TWA in fact breached this
Agreement and the breach had a material adverse effect on an Icahn Entity;
then, if the event(s) listed in clause (i) above occurs, and either at the time
TWA receives the Default Notice or within the period referred to in clause (ii)
above the conduct described in the Default Notice has been discontinued or the
breach described in the Default Notice has been cured, then TWA shall pay to
Karabu on demand, as liquidated damages and not as a penalty and
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without any requirement to satisfy subsection 12(b)(iii) hereof, an amount equal
to twice the Published Fare of any Tickets for which reservations were sought
and which were denied.
For the purposes of this Section 12, an inadvertent delay in providing the
information called for in Section 3(g) and the fact that any differentials
mentioned in the last sentence of clause (g) of Section 3 of this Agreement
occurs or exists shall not constitute breaches of the Agreement.
Notwithstanding the foregoing, if TWA shall have failed to discontinue the
conduct or to cure said breach as set forth in such clause (i) within the time
period specified in clause (ii) above or continues in a pattern of ten (10) or
more such breaches in any thirty-day period (e.g. TWA's repeated denial of
reservations in specific fare categories for flights on which such fares were
available at the time that the request was made), then, upon compliance by
Karabu with clause b(iii) above, TWA shall immediately pay to the Icahn Entity,
as liquidated damages and not as a penalty, the sum of Ten Million Dollars
($10,000,000.00) and an Event of Default shall be deemed to have occurred under
the Loan Agreements with the same effect and giving Karabu the same rights as if
any other Event of Default specified in the Loan Agreements had occurred and is
continuing.
The remedies for breach by TWA set forth in this provision shall be the
Icahn Entity's sole and exclusive remedies except for the Icahn Entity's rights
under the Loan Agreement to take any action specified therein or permitted
thereby on account of the occurrence of an Event of Default if an Event of
Default is deemed to have occurred as provided in the immediately preceding
paragraph.
Notwithstanding the foregoing, TWA shall not be in breach of this
Agreement under any of the foregoing sections by reason of any of its usual
promotional sales or ticket programs including but not limited to Consolidator
(Domestic), Consolidator (International) and/or Tour Operator/Wholesaler ticket
agreements requiring the sale of air transportation in connection with an
air/ground and/or air /sea package, the sale of net fares in exchange for
advertising or promotion benefits without regard to the fare level or by virtue
of any agreement with any corporation, business or similar such entity providing
for a discount or rebate of fares for air transportation on TWA provided that no
such agreement prohibits the other party from dealing with Karabu or except
where otherwise prohibited in the Agreement (for example, Karabu cannot sell
Tickets to Travel Agents, Consolidators or Tour Operator(s)/Wholesaler(s)), from
purchasing Tickets from Karabu or otherwise affirmatively penalizes the other
party because of its dealing with Karabu.
Karabu agrees that TWA may market and sell tickets to any End User or to
any other person, firm or entity with which Karabu has an agreement for the sale
of Tickets hereunder.
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TWA agrees that Karabu may market and sell Tickets to any person, firm or
entity with which TWA has an agreement for the sale of air transportation at a
discounted fare level provided that Karabu may not condition its agreement by
prohibiting such person, firm or entity from otherwise dealing directly with
TWA.
In each instance, the party in receipt of a Default Notice containing a
description of the alleged conduct or breach in violation of this Agreement,
will have a reasonable period of time to investigate and shall respond in
writing to the Default Notice with a disclosure of the relevant facts and a
complete explanation of the background to and reasons for the alleged conduct or
breach. Each party will keep and preserve records of matters arising under this
Agreement in the same fashion as business records are generally maintained. TWA
and Karabu agree that routine operating errors with respect to reservations and
ticketing will not be considered to constitute a breach of this Agreement.
TWA will designate to Karabu appropriate staff in its reservations and
revenue accounting departments to be available to respond to questions
concerning TWA's implementation and operations in respect of the Ticket
Programs. Designated reservations staff will be available on a 24 hour basis to
respond to inquiries from Karabu provided however Karabu must contact the
designated staff and not general reservations staff personnel.
Karabu shall designate to TWA personnel able to respond to questions
concerning Karabu's implementation and operation of the Ticket Program.
13. Access. Karabu shall, on a confidential basis, give TWA, upon TWA's prior
written request, reasonable access to Karabu's books, records, and officers and
employees and shall make such information available to TWA as TWA may reasonably
request as, may be necessary for TWA to monitor Karabu's sales of Tickets and
related operations under the Ticket Programs. All information supplied to TWA or
its representatives shall be kept confidential and shall not be disclosed by TWA
to any other person unless such disclosure is required in TWA's counsel's
opinion by operation of law. In the event in TWA's counsel's reasonable opinion
such disclosure is required, TWA shall endeavor to give Karabu at least ten (10)
days prior written notice thereof.
TWA shall, on a confidential basis, give Karabu, upon Karabu's prior
written request, reasonable access to TWA's contracts on a no-name basis with
Consolidators and Tour Operators/Wholesalers and TWA officers and employees
having responsibility for administering such contracts, as, may be necessary for
Karabu to monitor TWA's fares and conditions being provided to Consolidators.
All information supplied to Karabu or its representatives shall be kept
confidential and shall not be disclosed by Karabu to any other person unless
such disclosure is required in Karabu's counsel's opinion by operation of law.
In the event in Karabu's counsel's reasonable opinion such disclosure is
required, Karabu shall endeavor to give TWA at least ten (10) days prior written
notice thereof.
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14. Carrier Fragmentation and Sale of Assets.
(a) If TWA sells, transfers or disposes, in any one transaction or related
series of transactions within a twelve (12) month period, routes which, net of
route acquisitions, produced thirty percent (30%) or more of TWA's revenues for
the twelve month period ending with the end of the most recently completed
fiscal quarter, TWA shall cause the transferee or transferees of such routes to
assume, on substantially equivalent terms and conditions, TWA's obligations with
respect to a percentage of the remaining Ticket Program(s) equivalent to the
percentage TWA's annual revenues produced by the routes which were so
transferred to such transferee or transferees.
(b) If TWA sells, transfers or disposes of all or substantially all of its
assets in any one transaction or related series of transactions, TWA shall cause
the transferee to assume, on substantially equivalent terms and conditions,
TWA's obligations under the remaining Ticket Program(s).
15. Bankruptcy.
(a) if a Bankruptcy Event (which shall include, for this purpose, the
filing by TWA of a petition for relief under Chapter 11 as described in the
proviso of the definition of Bankruptcy Event) occurs, TWA agrees not to seek to
reject this Agreement, pursuant to section 365(a) of the Bankruptcy Code, as an
executory contract, or to support any motion made by a third party seeking to
force a rejection of this Agreement as an executory contract or for any other
reason provided that Karabu honors at all times all of the terms and conditions
of and is not otherwise in breach of the Extension and Consent Agreement and
further provided that, if TWA is in compliance with this clause (a), Karabu
waives any and all claims that it might have against TWA with respect to any
such rejection except that Karabu may file a proof of claim relating to any
claim that it may have under this Agreement or that may arise as a result of a
rejection of this Agreement.
(b) TWA acknowledges and agrees that credits against the Karabu Loans and
payments made in respect of the PBGC Loans pursuant to Section 10 hereof shall
be deemed to be made in the ordinary course of the businesses of the respective
parties hereto, and, if a Bankruptcy Event occurs, TWA shall not seek (or
support any attempt by any third party to seek), pursuant to sections 547(b),
550(a) of the Bankruptcy Code, to avoid and recover either the amounts of such
credits or the funds retained by Karabu from Ticket sales which result in such
credits as preferential transfers provided that Karabu honors at all times all
of the terms and conditions of and is not otherwise in breach of the Extension
and Consent Agreement and further provided that, if TWA is in compliance with
this clause (b) Karabu waives any and all claims that it might have against TWA
with respect to any such preference claims except that Karabu may file a proof
of claim for any amounts or credits determined to be preferential transfers.
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(c) If a Bankruptcy Event (which shall include, for this purpose, the
filing by TWA of a petition for relief under Chapter 11 described in the proviso
of the definition of Bankruptcy Event) occurs, TWA agrees, at the request of
Karabu, to use its best efforts to obtain as soon as practicable an order of the
bankruptcy court approving the assumption of this Agreement under Section 365 of
the Bankruptcy Code and, if a motion is made seeking the rejection of this
Agreement, TWA shall at Karabu request either take all appropriate action to
object to and oppose such motion or make and diligently pursue a cross-motion
seeking an order of the bankruptcy court approving the assumption of this
Agreement under Section 365 of the Bankruptcy Code.
16. Indemnities. (a) Karabu agrees to indemnify and hold harmless TWA, its
officers, directors, shareholders, subsidiaries, affiliates and employees
(collectively, "TWA Indemnitees" and individually "TWA Indemnitee") from and
against any and all claims, actions or cause of action arising directly or
indirectly out Karabu's failure to act in accordance with the terms of
applicable foreign, federal, state or local law, rule, regulation or ordinance
concerning the marketing and sale of air transportation including any failure by
Karabu to collect and pay over to TWA in accordance with Exhibit B hereto any
and all percentage based transportation taxes, flat rate taxes, fees or
surcharges (including without limitation, passenger facility charges,
international departure taxes, APHIS and/or INS fees), together with any
penalties or interest in respect of any thereof (collectively, "Taxes") which
may be imposed on, incurred by or asserted against any TWA Indemnitee arising
out of or in connection with the sale of any Ticket by or on behalf of Karabu or
under the Ticket Program, including, without limitation, any reasonable legal
fees, expenses or costs incurred by any TWA Indemnitee in the investigation or
defense of any Taxes or claim of nonpayment of any Taxes by any governmental
authority.
(b) TWA agrees to indemnify and hold harmless Karabu, its officers,
directors, shareholders, subsidiaries, affiliates, employees, agents,
consultants and independent contractors (collectively, "Karabu Indemnitees" and
individually "Karabu Indemnitee") from and against any and all claims, actions
or causes of action arising out of TWA's failure to pay over to the appropriate
governmental authorities when due any Taxes received from Karabu, including,
without limitation, any reasonable legal fees, expenses or costs incurred by any
Karabu Indemnitee in the investigation or defense of any claims, fines or
penalties or claim of nonpayment of any thereof
(c) If the facts giving rise to any indemnification under clauses (a) or
(b) of this Section 16 shall involve an actual claim or demand by any third
party against a TWA Indemnitee or a Karabu Indemnitee (the "Indemnified Party"),
the party which may be liable for indemnification (the "Indemnifying Party")
shall be entitled to notice of and entitled (without prejudice to the right of
any Indemnified Party to participate at its expense through counsel of its own
choosing) to defend or prosecute such claim at its expense and through counsel
of its own choosing if it gives written notice of its intention to do so no
later than the time by which the interests of the Indemnified Party would be
materially prejudiced as a result of its failure to have
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received such notice; provided, however, that if the defendants in any action
shall include both an Indemnifying Party and an Indemnified Party and the
Indemnified Party shall have been advised by its counsel that the counsel
selected by the Indemnifying Party has a conflict of interest because of the
availability of different or additional defenses to the Indemnified Party, the
Indemnified Party shall have the right to select separate counsel to participate
in the defense of such action on its behalf, at the expense of the Indemnifying
Party. The failure to notify the Indemnifying Party of a third party claim or
demand shall not relieve them of any liability which they may have to any
Indemnified Party except to the extent that such failure materially prejudices
the Indemnifying Party's ability to defend such claim or action. The Indemnified
Party shall cooperate fully in the defense of any such claim or action and shall
make available to the Indemnifying Party pertinent information under its control
relating thereto, but shall be entitled to be reimbursed, as provided in this
clause (c), for all out-of-pocket costs and expenses payable to third parties
incurred by it in connection therewith. If any Indemnifying Party assumes the
defense of any such claim or action, the Indemnifying Party will hold the
Indemnified Party harmless from and against any and all damages arising out of
any settlement approved by such Indemnifying Party on any judgment in connection
with such claim or action. Payment by an Indemnifying Party to an Indemnified
Party shall be made within ten (10) days after demand, unless indemnification
arises on account of a third party claim or action in which event payment shall
be made within ten (10) days after final judgment, settlement or compromise, as
the case may be.
17. Choice of Law. THE PARTIES AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
18. Benefit/Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns;
provided, however, that no party may assign this Agreement without the prior
written consent of the other party except that, upon written notice to TWA, any
one or more Icahn Entities may, by executing and delivering a written agreement
in the form of Exhibit C hereto (a "Joiner Agreement"), join as a party to this
Agreement as if an original signatory hereto with the right to operate all or
any portion of the Ticket Programs (as Karabu and such Icahn Entities may
determine in their discretion), provided, that Karabu shall not be relieved of
any obligations related to the Ticket Programs which are not fully performed by
any such Icahn Entity or of any obligations under any other agreement with TWA.
The references herein to Karabu in the context of the rights and obligations of
the parties hereto and the operation of the Ticket Programs shall mean Karabu
and/or the Icahn Entities which execute and deliver Joinder Agreements.
19. Certain Net Worth Requirements. From and after such time as the Karabu Loans
have been paid in full, either (i) the aggregate book net worth (determined in
accordance with generally accepted accounting principles, "GAAP"), and the net
worth determined on the basis of the fair market value of assets less all
liabilities (including contingent liabilities but excluding
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liabilities relating to minimum funding or the making of termination payments to
or for the benefit of the Pension Plans or the PBGC or minimum funding or
termination liabilities relating to any other employee benefit plan maintained
by such Icahn Entities or trades or businesses under common control of such
Icahn Entities) of the Icahn Entities who shall then be bound to TWA under this
Agreement shall at all times during the term of this Agreement be $10 million or
more, or (ii) there will be provided to TWA a guaranty, in form and substance
reasonably satisfactory to TWA, of the obligations of the Icahn Entities under
this Agreement given by the Icahn Entities having at all times during the term
of this Agreement an aggregate net worth (computed as in clause (i) above ) of $
10 million or more.
20. Tax Ruling.
TWA and Karabu agree to execute the private letter ruling cooperation
letter in the form attached hereto as Exhibit D.
21. Miscellaneous.
The waiver by either party of a breach or violation of any term or
provision of this Agreement shall not operate as, or be construed to be, a
waiver of any subsequent breach of the same provision by any party or of the
breach of any other term or provision of this Agreement.
Each of the parties has agreed to the use of the particular language of
the provisions of this Agreement including all attached exhibits and schedules
and any questions of doubtful interpretation shall not be resolved by any rule
or interpretation against the draftsman but rather in accordance with the fair
meaning thereof, having due regard to the benefits and rights intended to be
conferred upon the parties hereto and the limitations and restrictions upon such
rights and benefits intended to be provided.
Any notice, demand or communication required, permitted, or desired to be
given hereunder shall be in writing and shall be deemed effectively given when
personally delivered, sent by facsimile transmission (receipt confirmed by
phone) or mailed by prepaid certified mail, return receipt requested, addressed
as follows:
TWA:
Trans World Airlines, Inc.
One City Centre
515 N. Sixth Street
St. Louis, Missouri 63101
Attention: Senior Vice President and General
Counsel
FAX: (314) 589-3267
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With a copy to:
Smith, Gambrell & Russell
Suite 3100 Promenade II
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309-3592
Attention: Howard E. Turner
FAX: (404) 815-3509
Karabu:
Karabu Corp.
100 South Bedford Road
Mt. Kisco, New York 10549
Attention: Mr. Carl C. Icahn
FAX: (212) 635-5571
With a copy to:
Gordon Altman Butowsky Weitzen Shalov & Wein
114 West 47th Street, 20th Floor
New York, New York 10036
Attention: Marc Weitzen
FAX: 212-626-0799
or to such other address, and to the attention of such other person or officer
as any party may designate, with copies thereof to the respective counsel
thereof as notified by such party.
In addition, if TWA is notified by Karabu that another Icahn Entity or
Entities have executed Joinder Agreements, TWA shall send copies of all notices,
demands and communications required to be sent to Karabu pursuant to this
Agreement to such Icahn Entity or Entity at the address or addresses designated
for that purpose in the Joinder Agreement.
This Agreement supersedes all prior contracts, understandings and
agreements, whether written or oral, and constitutes the entire agreement of the
parties respecting the within subject matter and no party shall be entitled to
benefits other than those specified herein. As between or among the parties, no
oral statements or prior written material not specifically included herein shall
be of any force and effect; the parties specifically acknowledge that in
entering into and executing this Agreement, the parties rely solely upon the
representations and agreements contained in this Agreement and no others. No
terms, conditions, warranties, or representations, other than those contained
herein and no amendments or modifications hereto, shall be binding unless made
in writing and signed by the party to be charged.
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This Agreement may be executed in multiple originals or counterparts, each
and all of which shall be deemed an original and all of which together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, each of the parties have caused this Agreement to be
executed on its behalf by its duly authorized officers, as of the date
hereinabove first written.
TRANS WORLD AIRLINES, INC.
By:_____________________________________
Title:__________________________________
KARABU CORP.
By:_____________________________________
Title:__________________________________
26
JOINDER AGREEMENT
Joinder Agreement, dated August 14, 1995, between Karabu Corp., a
Delaware corporation ("Karabu") and Global Discount Travel Services LLC, a
Nevada limited liability company ("New Party").
WHEREAS, Karabu is a party to that certain Karabu Ticket Program
Agreement, dated as of June 14, 1995 (the "Ticket Agreement") between Karabu and
Trans World Airlines, Inc. ("TWA"); and
WHEREAS, pursuant to Section 18 any one or more Icahn Entities (as
defined in the Agreement) may, by executing and delivering this Agreement, be
joined as a party to the Ticket Agreement as if an original signatory thereto;
and
WHEREAS, New Party is an Icahn Entity and desires to become a party
to the Ticket Agreement;
NOW THEREFORE, the parties hereto desiring to be legally bound,
hereby agree as follows:
1. New Party elects to be joined as a party to the Ticket Agreement
as if an original signatory thereto and shall be bound by all to the terms,
conditions and restrictions thereof.
2. New Party represents that it is an Icahn Entity as defined in the
Ticket Agreement.
3. Karabu shall remain liable for all of its obligations related to
the Ticket Programs described in the Ticket Agreement notwithstanding the joiner
of New Party as a party to the Ticket Agreement.
4. New Party's address for the purpose of receiving notices pursuant
to the Ticket Agreement is:
4052 South Industrial Road
Las Vegas, Nevada 89103
Attention: Mr. Terry O'Neal
with copies to:
Icahn Associates Corp.
<PAGE> 2
114 West 47th Street, 19th Floor
New York,New York 10036
Attention: Mr. Robert J. Mitchell
Gordon Altman Butowsky
Weitzen Shalov & Wein
114 West 47th Street, 21st Floor
New York,New York 10036
Attention: Douglas S. Rich, Esq.
5. This Agreement shall be governed by the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused the execution of
this Agreement on the day first above written.
KARABU CORP.
By:_____________________________________
Its: Assistant Secretary
Global Discount Travel
Services LLC
By: Karabu Corp., Member
By:_____________________________________
Its: Assistant Secretary
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