EXHIBIT 10.2
EXECUTION VERSION
AMENDMENT NO 1
TO SECURED SUPER-PRIORITY DEBTOR IN POSSESSION CREDIT AGREEMENT
AMENDMENT NO.1 (this "Amendment"), dated as of October 7, 2005, to the
SECURED SUPER-PRIORITY DEBTOR IN POSSESSION CREDIT AGREEMENT, dated as of
September 16, 2005 (as amended, supplemented, restated or otherwise modified
from time to time, the "Credit Agreement"), among DELTA AIR LINES, INC., as a
debtor and debtor in possession (the "Borrower"), the other Credit Parties
signatory thereto, each as a debtor and debtor in possession, the Lenders party
thereto from time to time and GENERAL ELECTRIC CAPITAL CORPORATION, as agent for
the Lenders and the Secured Parties (in such capacity, together with its
successors in such capacity, the "Administrative Agent"). Unless otherwise
specified herein, all capitalized terms used in this Amendment shall have the
meanings ascribed to such terms in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrower has requested certain amendments to the Credit
Agreement as herein set forth; and
WHEREAS, the Borrower, the Administrative Agent and the Lenders
signatory to an Acknowledgement and Consent (as defined below) have agreed to
amend the Credit Agreement on the terms and subject to the conditions herein
provided; and
NOW, THEREFORE, in consideration of the premises and the covenants and
obligations contained herein the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
As of the Effective Date (as defined below), the Credit Agreement is
hereby amended as follows:
(a) by deleting all references to "$1,700,000,000" in the Credit
Agreement and inserting in lieu thereof "$1,900,000,000";
(b) by deleting the first sentence of Section 1.1(b)(i) (Term Loan B)
and inserting in lieu thereof the following sentence:
"Subject to the terms and conditions hereof, each Term B Lender agrees
to make a term loan (collectively, the "Term Loan B") to Borrower in an
aggregate principal amount equal to (A) on the Closing Date, its Term B
Commitment in effect as of the Closing Date as set forth on Annex J and (B) on
the Entry Date, the remainder, if any, of its Term B Commitment in effect as of
the Entry Date as set forth on Annex J."
(c) by deleting the first sentence of Section 1.1(c)(i) (Term Loan C)
and inserting in lieu thereof the following sentence:
"Subject to the terms and conditions hereof, each Term C Lender agrees
to make a term loan (collectively, the "Term Loan C") to Borrower in an
aggregate principal amount equal to (A) on the Closing Date, its Term C
Commitment in effect as of the Closing Date as set forth
on Annex J and (B) on the Entry Date, the remainder, if any, of its Term C
Commitment in effect as of the Entry Date as set forth on Annex J."
(d) by deleting the table in Section 1.5 (Interest and Applicable
Margins) in its entirety and inserting in lieu thereof the following table:
Applicable Term A Index Margin... 3.75%
Applicable Term A LIBOR Margin... 4.50%
Applicable Term B Index Margin... 5.75%
Applicable Term B LIBOR Margin... 6.50%
Applicable Term C Index Margin... 8.25%
Applicable Term C LIBOR Margin... 9.00%
(e) by inserting before the period at the end of Section 1.5(e) the
following clause:
", except with the consent of the Administrative Agent in its sole
discretion"
(f) by deleting the lead-in paragraph of Section 2.2 (Conditions to
Subsequent Loans) and inserting in lieu thereof the following paragraph:
"No Lender shall be obligated to make the remaining Term Loan
requested to be made by it after the Closing Date pursuant to Section 1.1 unless
each of the following conditions precedent is satisfied or provided for in a
manner reasonably satisfactory to the Administrative Agent, or duly waived in
writing in accordance with Section 13.2:"
(g) by deleting the reference in Section 2.2(g) to "Post Petition
Skymiles Facility Documents" and inserting in lieu thereof "Skymiles Agreements
(as defined in the Skymiles Intercreditor Agreement)";
(h) by deleting the phrase "'Obligations' (as defined in the
Post-Petition Skymiles Facility Documents)" in Section 6.13(g) (Restricted
Payments) and inserting in lieu thereof the following words:
" 'Obligations' (as defined in the Post-Petition Skymiles Facility
Documents) arising in connection with the Bankruptcy Loans (as defined in the
Post-Petition Skymiles Facility Documents)"
(i) by deleting the last sentence in Section 6.14 (Change of Corporate
Location; Change of Fiscal Year) and inserting in lieu thereof the following
sentence:
"No Credit Party shall change its Fiscal Year."
(j) by deleting the definition of "Entry Date" in Annex A
(Definitions) in its entirety and inserting in lieu thereof the following
definition:
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"Entry Date" means the first date after the entry of the Final Order
on which each of the conditions precedent set forth in Section 2.2 and Amendment
No. 1 to this Agreement is satisfied or provided for in a manner reasonably
satisfactory to the Administrative Agent, or duly waived in writing in
accordance with Section 13.2."
(k) by deleting the definition of "Term B Commitment" in Annex A
(Definitions) in its entirety and inserting in lieu thereof the following
definition:
"Term B Commitment" means (a) as to any Lender with a Term B
Commitment, the commitment of such Lender to make its Pro Rata Share of the Term
Loan B as set forth on Annex J to the Agreement or in the most recent Assignment
Agreement executed by such Lender, and (b) as to all Lenders with a Term B
Commitment, the aggregate commitment of all Lenders to make the Term Loan B,
which aggregate commitment shall be Six Hundred Million Dollars ($600,000,000)
on the Closing Date and Seven Hundred Million Dollars ($700,000,000) on the
Entry Date. After advancing the aggregate amount of the Term B Commitment, each
reference to a Lender's Term B Commitment shall refer to that Lender's Pro Rata
Share of the outstanding Term Loan B."
(l) by deleting the definition of "Term C Commitment" in Annex A
(Definitions) in its entirety and inserting in lieu thereof the following
definition:
"Term C Commitment" means (a) as to any Lender with a Term C
Commitment, the commitment of such Lender to make its Pro Rata Share of the Term
Loan C as set forth on Annex J to the Agreement or in the most recent Assignment
Agreement executed by such Lender, and (b) as to all Lenders with a Term C
Commitment, the aggregate commitment of all Lenders to make the Term Loan C,
which aggregate commitment shall be Five Hundred Million Dollars ($500,000,000)
on the Closing Date and Six Hundred Million Dollars ($600,000,000) on the Entry
Date. After advancing the aggregate amount of the Term C Commitment, each
reference to a Lender's Term C Commitment shall refer to that Lender's Pro Rata
Share of the outstanding Term Loan C."
(m) by deleting Annex J in its entirety and inserting in lieu thereof
Exhibit I attached hereto.
(n) by inserting at the end of Annex L the following new paragraph:
"11. Post-Petition Skymiles Facility Documents. To the extent not
delivered to the Administrative Agent prior to the Entry Date, each
Post-Petition Skymiles Facility Document in form and substance reasonably
satisfactory to the Administrative Agent."
(o) by deleting Disclosure Schedule 3.19 in its entirety and inserting
in lieu thereof Exhibit II attached hereto;
(p) by inserting the following footnote to Disclosure Schedule 6.7:
"1 The listing of any Lien on this Disclosure Schedule 6.7 does not
concede the amount, perfection or priority of such Lien."
(q) by deleting Part F of Disclosure Schedule 6.7 in its entirety and
inserting in lieu thereof Exhibit III attached hereto;
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SECTION 2. CONSENT AND WAIVER. As of the Effective Date, the Lenders hereby
waive compliance with the covenant contained in Section 6.13 (Restricted
Payments) of the Credit Agreement solely to permit the prepayment of the
Post-Petition Skymiles Facility in the aggregate principal amount of $50,000,000
from the proceeds of the additional Term Loan advanced by the Lenders pursuant
to the Credit Agreement, as amended by this Amendment.
SECTION 3. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT.
This Amendment shall become effective as of the date (the "Effective
Date") on which each of the following conditions shall have been satisfied or
duly waived:
(a) Certain Documents. The Administrative Agent shall have received
each of the following, each in form and substance satisfactory to the
Administrative Agent:
(i) this Amendment, duly executed by each of the Credit Parties
and the Administrative Agent;
(ii) written consents to this Amendment (each an "Acknowledgement
and Consent"), duly executed by Lenders (including General Electric Capital
Corporation and Morgan Stanley Senior Funding, Inc.) constituting the percentage
of applicable Lenders required under Section 13.2 (Amendments and Waivers) of
the Credit Agreement;
(iii) amendment to the Skymiles Intercreditor Agreement, duly
executed by Amex and the Administrative Agent;
(iv) amendment to the Skymiles Modification (as defined in the
Skymiles Intercreditor Agreement), duly executed by Amex, Delta Loyalty
Management Services, LLC and the Borrower;
(v) such additional documentation as the Administrative Agent may
reasonably require; and
(vi) the Bankruptcy Court shall have entered the Final Order,
certified by the Clerk of the Bankruptcy Court as having been duly entered, and
the Final Order shall be in full force and effect and shall not have been
vacated, reversed, modified, amended or stayed without the prior written consent
of the Administrative Agent, the Arrangers and the Requisite Lenders.
(b) Payment of Fees and Expenses. The Administrative Agent shall have
received all fees and expenses of the Administrative Agent and the Lenders due
and payable as of the date hereof by the Borrower pursuant to Section 4 below or
the Loan Documents, including, without limitation, all costs, fees and expenses
of the Administrative Agent and Lenders in connection with the preparation,
execution and delivery of this Amendment, including the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto.
(c) Representations and Warranties. Each of the representations and
warranties contained in Section 5 below shall be true and correct in all
respects.
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SECTION 4. FEES AND EXPENSES.
(a) As consideration for the execution of this Amendment, the Borrower
agrees to pay to the Administrative Agent for the account of each Arranger and
the Lenders the fees set forth in the Amendment No. 1 Fee Letter, dated as of
the date hereof, among the Borrower and the Arrangers.
(b) As provided in Section 13.3 (Fees and Expenses) of the Credit
Agreement, the Borrower agrees to reimburse the Administrative Agent for all
reasonable fees, costs and expenses in connection with the preparation,
execution and delivery of this Amendment.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Each Credit Party hereby jointly
and severally represents and warrants to the Administrative Agent and each
Lender, with respect to all Credit Parties, as follows:
(a) After giving effect to this Amendment, each of the representations
and warranties in the Credit Agreement and in the other Loan Documents are true
and correct in all material respects on and as of the date hereof as though made
on and as of such date, except to the extent that any such representation or
warranty expressly relates to an earlier date and except for changes therein
expressly permitted by the Credit Agreement.
(b) Subject to entry by the Bankruptcy Court of the Final Order, the
execution, delivery and performance by each Credit Party of this Amendment have
been duly authorized by all requisite corporate, limited liability company or
limited partnership action on the part of such Credit Party and will not violate
any of the articles of incorporation or bylaws (or other constituent documents)
of such Credit Party.
(c) This Amendment has been duly executed and delivered by each Credit
Party, and, upon entry by the Bankruptcy Court of the Final Order, each of this
Amendment and the Credit Agreement as amended hereby constitutes the legal,
valid and binding obligation of such Credit Party, enforceable against such
Credit Party in accordance with their terms.
(d) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing as of the date hereof.
SECTION 6. REFERENCE TO AND EFFECT ON LOAN DOCUMENTS.
(a) As of the Effective Date, each reference in the Credit Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of like import
shall mean and be a reference to the Credit Agreement as amended hereby and
references in any other Loan Document to the "Credit Agreement," "thereunder,"
"thereof," "therein," or words of like import shall mean and be a reference to
the Credit Agreement as amended hereby.
(b) Except to the extent amended hereby, the Credit Agreement and all
of the other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any Default or Event of Default or any right, power,
privilege or remedy of
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the Administrative Agent, any Lender or any L/C Issuer under the Credit
Agreement or any Loan Document, or constitute a waiver of any provision of the
Credit Agreement or any Loan Document, except as and to the extent expressly set
forth herein.
(d) The Credit Parties hereby confirm that the security interests and
liens granted pursuant to the Loan Documents continue to secure the Obligations
as set forth in the Loan Documents and that such security interests and liens
remain in full force and effect.
SECTION 7. GOVERNING LAW. This Amendment and the rights and obligations of
the parties hereto shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York.
SECTION 8. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
SECTION 9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument. Receipt by the
Administrative Agents of a facsimile copy of an executed signature page hereof
shall constitute receipt by the Administrative Agents of an executed counterpart
of this Amendment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers, general partners or managing members
thereunto duly authorized, as of the date first written above.
DELTA AIR LINES, INC., as Borrower
By: /s/ Paul A. Jacobson
------------------------------------
Name: Paul A. Jacobson
Title: Vice President and Treasurer
GENERAL ELECTRIC CAPITAL CORPORATION, as
Administrative Agent and Lender
By: /s/ Douglas A. Kelly
------------------------------------
Name: Douglas A. Kelly
Title: Duly Authorized Signatory
MORGAN STANLEY SENIOR FUNDING, INC.,
as Lender
By: /s/ Jason Colodne
------------------------------------
Name: Jason Colodne
Title: Authorized Signatory
The following persons are signatories to this Agreement in their capacity as
Credit Parties and not as Borrower.
ASA HOLDINGS, INC.
By: /s/ Kenneth W. Morge
------------------------------------
Name: Kenneth W. Morge
Title: Vice President
COMAIR HOLDINGS, LLC
By: /s/ Donald T. Bornhorst
------------------------------------
Name: Donald T. Bornhorst
Title: Treasurer
AMENDMENT NO. 1 TO DELTA DIP CREDIT AGREEMENT
COMAIR, INC.
By: /s/ Donald T. Bornhorst
------------------------------------
Name: Donald T. Bornhorst
Title: Chief Financial Officer
COMAIR SERVICES, INC.
By: /s/ Mona Warwar
------------------------------------
Name: Mona Warwar
Title: Treasurer
CROWN ROOMS, INC.
By: /s/ Mona Warwar
------------------------------------
Name: Mona Warwar
Title: Assistant Treasurer
DAL AIRCRAFT TRADING, INC.
By: /s/ Kenneth W. Morge
------------------------------------
Name: Kenneth W. Morge
Title: Assistant Treasurer
DAL GLOBAL SERVICES, LLC
By: /s/ Mona Warwar
------------------------------------
Name: Mona Warwar
Title: Assistant Treasurer
DAL MOSCOW, INC.
By: /s/ Mona Warwar
------------------------------------
Name: Mona Warwar
Title: Treasurer
AMENDMENT NO. 1 TO DELTA DIP CREDIT AGREEMENT
DELTA AIRELITE BUSINESS JETS, INC.
By: /s/ Mona Warwar
------------------------------------
Name: Mona Warwar
Title: Assistant Treasurer
DELTA BENEFITS MANAGEMENT, INC.
By: /s/ Michael O. Randolfi
------------------------------------
Name: Michael O. Randolfi
Title: Treasurer
DELTA CONNECTION ACADEMY, INC.
By: /s/ Mona Warwar
------------------------------------
Name: Mona Warwar
Title: Treasurer
DELTA CORPORATE IDENTITY, INC.
By: /s/ Mona Warwar
------------------------------------
Name: Mona Warwar
Title: Assistant Treasurer
DELTA LOYALTY MANAGEMENT SERVICES, LLC
By: /s/ Michael O. Randolfi
------------------------------------
Name: Michael O. Randolfi
Title: Treasurer
DELTA TECHNOLOGY, LLC
By: /s/ E. Alan Arnold
------------------------------------
Name: E. Alan Arnold
Title: Secretary
AMENDMENT NO. 1 TO DELTA DIP CREDIT AGREEMENT
DELTA VENTURES III, LLC
By: /s/ Michael O. Randolfi
------------------------------------
Name: Michael O. Randolfi
Title: Treasurer
EPSILON TRADING, INC.
By: /s/ Michael O. Randolfi
------------------------------------
Name: Michael O. Randolfi
Title: Assistant Treasurer
KAPPA CAPITAL MANAGEMENT, INC.
By: /s/ Michael O. Randolfi
------------------------------------
Name: Michael O. Randolfi
Title: President
SONG, LLC
By: /s/ Kenneth W. Morge
------------------------------------
Name: Kenneth W. Morge
Title: Assistant Treasurer
AMENDMENT NO. 1 TO DELTA DIP CREDIT AGREEMENT
ANNEX J (FROM ANNEX A - COMMITMENTS DEFINITION)
TO
CREDIT AGREEMENT
[Intentionally Omitted]
EXHIBIT I TO AMENDMENT NO. 1
[Intentionally Omitted]
EXHIBIT II TO AMENDMENT NO. 1
[Intentionally Omitted]
EXHIBIT III TO AMENDMENT NO. 1