EXPURGATED CONFIDENTIAL
TREATMENT
REQUESTED BY
CONTINENTAL
AIRLINES, INC.
Exhibit 4.8(a)
WAIVER, CONSENT AND AMENDMENT TO
CMI LOAN AGREEMENT
WAIVER, CONSENT AND AMENDMENT TO CMI LOAN AGREEMENT,
dated as of March 30, 1995 (this "Amendment"), among CONTINENTAL
MICRONESIA, INC., a Delaware corporation ("Borrower"), AIR
MICRONESIA, INC., a Delaware corporation ("Guarantor"), the
financial institutions party to the Loan Agreement referred to
below ("Lenders"), and GENERAL ELECTRIC CAPITAL CORPORATION, a
New York corporation ("GE Capital"), as agent for said Lenders
under the Loan Agreement (in such capacity, "Agent").
W I T N E S S E T H :
WHEREAS, Borrower, Guarantor, Lenders and Agent are
parties to that certain Loan Agreement, dated as of April 27,
1993 (such Agreement, as it may be hereafter amended,
supplemented or otherwise modified from time to time, being
hereinafter referred to as the "Loan Agreement", and capitalized
terms defined therein and not otherwise defined herein being used
herein as therein defined; and
WHEREAS, Continental Airlines, Inc. ("Continental"),
Continental Express, Inc., GE Capital, General Electric Company,
and Global Project & Structured Finance Corporation, are parties
to that certain Master Restructuring Agreement, dated as of March
30, 1995 (the "Restructuring Agreement"), pursuant to which
certain obligations of Borrower and Continental are being
restructured; and
WHEREAS, Borrower has advised Lenders and Agent that
Borrower wishes to amend certain provisions of the Loan Agreement
in connection with the transactions contemplated by the
Restructuring Agreement, and Borrower has requested that Lenders
agree to various amendments to, and waivers of, certain
provisions of the Loan Agreement in connection therewith; and
WHEREAS, Lenders have agreed so to amend and waive, as
the case may be, certain provisions of the Loan Agreement upon
the terms and subject to the conditions provided herein;
NOW, THEREFORE, in consideration of the premises,
covenants and agreements contained herein, the parties hereto
hereby agree as follows:
SECTION 1. Waiver and Consent. The obligation of
Borrower to make any principal payment of the Loan due and
payable as set forth in Section 2.1(c) of the Loan Agreement on
any Interest Payment Date during the period from January 1, 1995
through December 31, 1996 (a "Deferred Principal Payment Date")
is hereby waived and each such principal payment otherwise due
and payable on such Deferred Principal Payment Date shall instead
be repaid in accordance with Section 2.1(c) of the Loan
Agreement, as amended by this Amendment.
SECTION 2. Amendments to Loan Agreement. The Loan
Agreement is hereby amended as follows:
(a) Section 1 is hereby amended as follows:
(i) by deleting the definition of the term
"Disposition" in its entirety and substituting the following
new definition in lieu therefor:
"'Disposition' shall mean any sale,
transfer, assignment, conveyance or other
disposition.";
(ii) by deleting the definition of the term
"Disposition Notice" in its entirety;
(iii) by inserting in the definition of the term
"Eligible Assignee" before the first reference therein to
"any Person" the reference to "GE Capital, Societe Nationale
d'Etude et de Construction de Moteurs D'Aviation, MTU
Motoren-und Turbinen-Union Munchen, GmbH, any of their
respective Subsidiaries or Affiliates, or";
(iv) by deleting in the definition of the term
"Lender" the reference therein to "by Section 8.1(a)(i) or
8.1(a)(ii)" and substituting the reference to "hereunder" in
lieu therefor; and
(v) by inserting the following new definitions in
proper alphabetical order:
"'CMI Deferred Amount' shall mean the
aggregate amount of all principal payments
deferred in accordance with the terms of Section 1
of the Waiver, Consent and Amendment."
"'CMI Deferred Date' shall mean
December 31, 1996."
"'CMI LIBOR Rate' shall mean the average
of the four rates, reported from time to time by
Telerate News Service (or such other number of
rates as such service may from time to time
report), at which foreign branches of major United
States banks offer United States dollar deposits
to other banks for a 90-day period in the London
interbank market at approximately 11:00 a.m.,
London time, on the second full Eurodollar
Business Day next preceding each Interest Payment
Date set forth on Schedule 2.1 attached hereto
during which any CMI Deferred Amount is to be
outstanding (unless such Interest Payment Date is
not a Business Day, in which event such interest
rates shall be determined two Eurodollar Business
Days prior to the Business Day next succeeding
such Interest Payment Date). If such interest
rates shall cease to be available from Telerate
News Service, the CMI LIBOR Rate shall be
determined from such financial reporting service
or other information as shall be mutually
acceptable to Agent and Borrower. Such CMI LIBOR
Rate, as determined above, will remain in effect
with respect to any outstanding CMI Deferred
Amount to but not including the next Interest
Payment Date, after which the CMI LIBOR Rate
determined in accordance with the prior two
sentences shall be in effect."
[CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
"'Deferred Principal Payment Date' shall have
the meaning set forth in Section 1 of the Waiver,
Consent and Amendment."
"'Eurodollar Business Day' shall mean a
Business Day on which banks in the city of London are
generally open for interbank or foreign exchange
transactions."
[CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
"'Waiver, Consent and Amendment' shall
mean that certain Waiver, Consent and Amendment,
dated as of March 30, 1995, among Borrower,
Guarantor, Lenders and GE Capital, as Agent."
(b) Section 2.1 is hereby amended by deleting
subsection (c) thereof in its entirety and substituting the
following new subsection (c) in lieu therefor:
"(c) The principal amount of each Loan
(other than the CMI Deferred Amount) shall be due
and payable in quarterly installments in the
amounts and on the Interest Payment Dates set
forth in Schedule 2.1 attached hereto. The CMI
Deferred Amount outstanding on the CMI Deferred
Date shall be due and payable in the amounts and
on the dates set forth on Schedule 2.1 attached
hereto.
(c) Section 2.2 is hereby amended as follows:
(i) by deleting in subsection (b) thereof the
first parenthetical contained therein;
(ii) by deleting subsection (f) thereof in its
entirety; and
(iii) by renumbering subsection (g) thereof to be
new subsection (f).
(d) Section 2.2 is hereby amended by deleting clause
(iii) of subsection (d) thereof in its entirety and substituting
the following new clause (iii) in lieu therefor:
"(iii) applied first, ratably to the scheduled
payments of the outstanding amounts set forth in
the column titled Deferred Principal Balance on
Schedule 2.1 hereto, and then, to the scheduled
payments of the outstanding amounts set forth in
the column titled Principal Balance on Schedule
2.1 hereto in the inverse order of maturity.
Notwithstanding anything to the contrary contained
herein, the CMI Deferred Amount may be prepaid in
whole or in part without any prepayment penalty."
(e) Section 2.5 is hereby amended as follows:
(i) by deleting the words "on the average outstanding
principal balance of the Notes outstanding" in the second
sentence of subsection (a) thereof immediately prior to
clause (i) therein and substituting the following words "on
each day during such Payment Period on the amount set forth
in the column titled Principal Balance on Schedule 2.1
hereof (as reduced by any prepayments made during such
Payment Period) opposite the Interest Payment Date that is
the first day of such Payment Period"; and
(ii) by inserting the following new proviso before the
parenthetical at the end of the second sentence of
subsection (a) thereof:
"provided, however, that interest shall accrue on each
day during such Payment Period on the amount set forth
in the column titled Deferred Principal Balance on
Schedule 2.1 hereof (as reduced by any prepayments made
during such Payment Period) opposite the Interest
Payment Date that is the first day of such Payment
Period at a rate per annum equal to 4% above the CMI
LIBOR Rate in effect during such Payment Period".
(f) [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT]
(g) Section 5.1 is hereby amended as follows:
(i) by deleting subsection (a) thereof in its
entirety and substituting the following new subsection (a)
in lieu therefor:
"(a) Upon the earlier to occur of the
date of distribution, in final form, to Borrower's
management or within 45 days after the end of each
fiscal month, (i) a copy of the unaudited
consolidated statement of income of Borrower and
its Subsidiaries for that portion of the Fiscal
Year ending as of the end of such month and, if
prepared in the ordinary course, a copy in final
form of the consolidated balance sheet as of the
close of such month and statement of cash flow of
Borrower and its Subsidiaries for that portion of
the Fiscal Year ending as of the end of such
month, (ii) a copy of the unaudited consolidated
statement of income of Borrower and its
Subsidiaries for such month, in each case,
prepared in the form customarily produced by
Borrower for internal corporate, financial or
accounting purposes, and (iii) a comparison of
actual cash forecasts, budgets and other
information required to be delivered to Lender in
accordance with Sections 5.1(a) and 5.1(g) with
the amounts projected for such fiscal month.";
(ii) by deleting subsection (g) thereof in its
entirety and substituting the following new subsection (g)
in lieu therefor:
"(g) Promptly upon preparation in final form
and in any event at the beginning of each Fiscal Year:
(i) projected consolidated cash flow
statements including summary details of cash
disbursements, including Capital Expenditures, for
such Fiscal Year, and projected consolidated
income statements of Borrower and its
Subsidiaries, on a monthly basis;
(ii) if prepared in the ordinary course,
projected consolidated balance sheets of Borrower
and its Subsidiaries for such Fiscal Year, on a
quarterly basis, together with appropriate
supporting details as requested by Lender;
(iii) any other budgets or formal financial
projections prepared regarding Borrower and
distributed to Borrower's Stockholders; and
(iv) projected budgets for the next 12
months regarding Borrower and its Subsidiaries,
together with statistical information, on a
monthly basis.";
(iii) by inserting at the end of subsection (l)
thereof before the period at the end thereof the reference
to "and shall also provide Agent, upon its reasonable
request, with reasonable opportunities to discuss all of the
foregoing information provided to Agent and each Lender
pursuant to this Section 5 with appropriate members of
management of AMI, Borrower or any of their respective
Subsidiaries, as appropriate".
(h) [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT]
(i) Section 8.1 is hereby amended by deleting it in
its entirety and substituting the reference to "[RESERVED]" in
lieu therefor.
(j) Section 8.2 is hereby amended as follows:
(i) by deleting in subsection (a) thereof the
first parenthetical therein;
(ii) by deleting in subsection (a) thereof the two
references therein to "the Tranche A Loan" and substituting
the reference to "any Loan" in lieu therefor;
(iii) by deleting in subsection (b) thereof the
first parenthetical therein; and
(iv) by deleting in subsection (b) thereof the
reference therein to "the Tranche A Loan" and substituting
the reference to "any Loan" in lieu therefor.
(k) Section 8.3 is hereby amended by deleting in the
first sentence of subsection (d) thereof the reference therein to
"Tranche A Loan to an Eligible Assignee" and substituting the
reference to "Tranche A Loan or Tranche B Loan, as the case may
be, to a Lender or an Eligible Assignee" in lieu therefor.
(l) Section 8.4 is hereby amended as follows:
(i) by deleting the first sentence of
subsection (a) thereof in its entirety and substituting
the following new sentence in lieu therefor:
"Each Lender may sell, transfer, assign or
negotiate all or a portion of the Loans owing to
it and the Notes held by it and a commensurate
portion of its rights and obligations hereunder
and under the other Loan Documents; provided,
however, that (i) each such assignment shall be of
a constant, and not a varying percentage of all of
the assigning Lender's rights and obligations
under this Agreement, (ii) each assignee hereunder
shall also be a Lender or an Eligible Assignee,
(iii) each such sale, transfer or assignment shall
be in an aggregate principal amount of not less
than $5,000,000 and (iv) no such assignment may
result in the Notes being beneficially owned by
more than fifteen (15) Persons in the aggregate.";
(ii) by deleting in the second sentence of
subsection (a) thereof the reference therein to "Tranche A";
and
(iii) by deleting in the first sentence of
subsection (d) thereof the reference therein to "Tranche A".
(m) Section 9.1 is hereby amended by inserting the
following new subsection (s) at the end thereof:
"(s) So long as GE Capital or any of its
Affiliates shall hold any Note or be owed any
Obligation under this Agreement or any of the other
Loan Documents, Borrower shall fail to make any payment
when due, taking into account applicable cure periods,
if any (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) on any
Indebtedness owed by Borrower to GE Capital or any of
its Affiliates; or any such Indebtedness shall be
declared to be due and payable or required to be
prepaid in full (other than by a regularly scheduled
required prepayment) prior to the stated maturity
thereof."
(n) Schedule 2.1 to the Loan Agreement is deleted and
Schedule 2.1 hereto is substituted therefor.
SECTION 3. Effective Date. This Amendment shall
become effective upon the Restructuring Date (as such term is
defined the Restructuring Agreement).
SECTION 4. [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT]
SECTION 5. Miscellaneous. (a) Upon the effectiveness
of this Amendment, on and after the date hereof, each reference
in the Loan Agreement and the other Loan Documents to "this
Agreement," "hereunder," "hereof," "herein," or words of like
import, shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) Except as specifically amended herein, the Loan
Agreement and all of the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed.
Without limiting the generality of the foregoing, Borrower hereby
confirms that all of its obligations under the Collateral
Documents shall continue and shall remain in full force and
effect.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of Lenders or Agent
under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents.
(d) This Amendment may be executed in any number of
separate counterparts, each of which shall, collectively and
separately, constitute one agreement.
(e) The section titles contained in this Amendment are
and shall be without substantive meaning or content of any kind
whatsoever and are not part of the agreement among the parties
hereto.
(f) Except as otherwise expressly provided in any of
the Loan Documents, in all respects, including all matters of
construction, validity and performance, this Amendment shall be
governed by, and construed and enforced in accordance with, the
laws of the State of New York, without regard to the principles
thereof regarding conflicts of law, and any applicable laws of
the United States. Agent, each Lender and Borrower agree to
submit to personal jurisdiction and, to the extent permitted by
applicable law, to waive any objection as to venue in the County
of New York, State of New York. To the extent permitted by
applicable law, service of process on Borrower, Agent or any
Lender in any action arising out of or relating to this Amendment
shall be effective if mailed to such party at the address listed
Section 11.11 of the Loan Agreement. Nothing herein shall
preclude Agent, Lender or Borrower from bringing suit or taking
other legal action in any other jurisdiction.
(g) To the extent permitted by applicable law, the
parties hereto waive all right to trial by jury in any action or
proceeding to enforce or defend any rights under this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
CONTINENTAL MICRONESIA, INC.
By: /s/ JOANNE ROEMER
Name: Joanne Roemer
Title:Vice President & CFO
AIR MICRONESIA, INC.
By: /s/ JOHN LUTH
Name: John E. Luth
Title: Attorney-in-Fact
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and
Lender
By: ERIC M. DULL
Name: Eric M. Dull
Title: Attorney-in-Fact
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]