EXHIBIT 99.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of November 9, 2001
(this "Second Amendment"), is made by and among DELTA AIR LINES, INC., a
Delaware corporation (the "Company") and the financial institutions parties
thereto (the "Banks").
W I T N E S S E T H:
WHEREAS, the Company, the Banks and Bank of America, N.A., as agent
bank (in such capacity, the "Agent Bank") are parties to that certain Credit
Agreement dated as of May 2, 1997, as heretofore amended by that certain First
Amendment to Credit Agreement, dated as of October 27, 2000 (as heretofore
amended, the "Existing Credit Agreement"), pursuant to which the Banks made
certain financial accommodations available to the Company;
WHEREAS, the Company has requested that the Banks amend the Existing
Credit Agreement in certain respects; and
WHEREAS, the Banks are willing to so amend the Existing Credit
Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties hereto
agree as follows:
PART 1
Definitions
SECTION 1.1. Certain Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Second Amendment have the
following meanings:
"Amended Credit Agreement" means the Existing Credit Agreement
as amended hereby.
"Effective Date" shall mean the date on or prior to November
30, 2001 upon which each of the conditions set forth in Section 4.1
have been satisfied.
SECTION 1.2. Other Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Second Amendment have the
meanings provided in the Amended Credit Agreement.
PART 2
Amendments to Existing Credit Agreement
Effective on (and subject to the occurrence of) the Effective Date, the
Existing Credit Agreement is hereby amended in accordance with this Part 2.
Except as so amended, the Existing Credit Agreement shall continue in full force
and effect.
SECTION 2.1. Amendment to Definitions in Section 1.1. Section 1.1 of
the Existing Credit Agreement is amended by revising the definitions of each of
the following terms to read in their entirety respectively as follows:
"Agent Bank" shall mean Bank of America, N.A. in its capacity
as agent for the Banks; provided, however, that if Bank of America,
N.A. shall have resigned or been removed as Agent Bank, then "Agent
Bank" shall mean the bank selected as Agent Bank pursuant to the
provisions of Section 11.8 hereof.
"L/C Commitment Amount" shall mean $350,000,000.
"Letter of Credit Banks" shall mean Bank of America, N.A. or
any other Bank under this Agreement approved by the Company that
agrees, pursuant to documentation in form and substance satisfactory to
the Agent Bank and the Company, to issue Letters of Credit hereunder.
"Main Office" of the Agent Bank shall be Bank of America,
N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 2.2. Addition of New Definitions in Section 1.1. Section 1.1 of
the Existing Credit Agreement is further amended by adding each of the following
definitions in the appropriate alphabetical order:
"Affiliate" shall mean, with respect to any Person, any other
Person (i) directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person or (ii) directly or
indirectly owning or holding fifteen percent (15%) or more of the
capital stock in such Person.
"Eligible Assignee" shall mean (i) a Bank; (ii) an Affiliate
of a Bank; and (iii) any other Person which shall have received the
consent of the Company, which consent shall not be unreasonably
withheld; provided, however, that neither the Company nor any Affiliate
of the Company shall qualify as an Eligible Assignee.
SECTION 2.3. Amendment to Section 2.3. Section 2.3 of the Existing
Credit Agreement is deleted in its entirety without re-numbering any other
section of the Amended Credit Agreement.
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SECTION 2.4. Amendment to Section 8.1. Section 8.1 of the
Existing Credit Agreement is amended by:
(a) deleting "$3,000,000,000" in subclause (i)(a) thereof
and substituting in lieu thereof $5,500,000,000"; and
(b) inserting at the end of subclause (i)(b) thereof the
phrase "and marked thereon with an asterisk."
SECTION 2.5. Amendment to Section 8.2. Section 8.2 of the
Existing Credit Agreement is amended by:
(a) inserting the following clause at the end of Section
8.2(a): ", provided that any calculation of "Current Debt" under this
clause (a) shall not include up to $625,000,000 of debt obligations of
the Company or any Subsidiary incurred and outstanding after the date
hereof that would otherwise constitute "Current Debt""; and
(b) deleting the percentage "150%" in clause (c) of
Section 8.2 and substituting in lieu thereof "175%".
SECTION 2.6. Amendment to Section 12.6. Section 12.6 of the
Existing Credit Agreement is amended to read in its entirety as follows:
Section 12.6. Successors and Assigns.
(a) This Agreement shall be binding upon the Company and
the Banks and their respective successors and assigns, and shall inure
to the benefit of the Company and the Banks and their respective
successors and assigns. The Company may not assign its rights or
obligations hereunder, except as permitted by Section 8.3 hereof. Other
than by virtue of operation of law, no Bank shall assign all or any
portion of its Commitment hereunder unless (a) the amount of the Bank's
Commitment to be assigned is equal to or greater than $10,000,000 (or
such lesser amount as the Company may approve in its sole discretion);
(b) the assigning Bank has provided the Company prior written notice of
the proposed assignment; (c) the Person acquiring the Commitment is an
Eligible Assignee; (d) the Agent Bank has been paid an assignment fee
of $2,500 by the assigning Bank; and (e) the Person acquiring the
Commitment, the assigning Bank, the Agent Bank, and, where the consent
of the Company is required, the Company, shall have executed a Form of
Assignment substantially as set forth on Exhibit D hereto. Upon
compliance with the provisions set forth above, such Person acquiring
the Commitment shall thereupon and thereafter be deemed to be a Bank
for all purposes hereunder. Upon satisfaction of the requirements of
this Section, the Company shall execute in favor of the assignee a
promissory note in substantially the form of Exhibit A-1 attached
hereto in the face amount of the Assigned Commitment (as defined in
Exhibit D attached hereto) and a promissory note in substantially the
form of Exhibit A-2 attached hereto to evidence any
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Competitive Bid Loans. The Company acknowledges and agrees that, upon
satisfaction of the requirements of this Section, the Company shall owe
the Assigned Loans (as defined in Exhibit D attached hereto) to the
assignee as if the assignee were the Bank originally making such loans.
(b) Any Bank may, without the consent of, or notice to,
the Company or the Agent Bank, sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such Bank's
rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans owing to it); provided that
(i) such Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the
Company, the Agent Bank and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank's
rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Bank sells such a participation shall
provide that such Bank shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any
provisions of this Agreement; provided that such agreement or
instrument may provide that such Bank will not, without the consent of
the Participant, agree to any amendment, modification, or waiver
described in subclause (i), (ii), (iii), (iv) or (v) of clause (a) in
Section 12.4 that affects such Participant. Subject to paragraph (c) of
this Section, the Company agrees that each Participant shall be
entitled to the benefits of Sections 3.10 and Article 10 to the same
extent as if it were a Bank and had acquired its interest by assignment
pursuant to paragraph (a) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section
12.5 as though it were a Bank, provided such Participant agrees to be
subject to Section 12.5 as though it were a Bank.
(c) A Participant shall not be entitled to receive any
greater payment under Section 10.1 or 10.4 than the applicable Bank
would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Company's prior written consent.
SECTION 2.7. Amendment to Exhibit D. Exhibit D to the Existing
Credit Agreement is amended to read in its entirety as Exhibit 1 to this Second
Amendment.
PART 3
Representations and Warranties
SECTION 3.1. Representations and Warranties. The Company hereby
represents and warrants that each of the representations and warranties of the
Company contained in the Existing Credit Agreement are true and accurate in all
material respects as of the date hereof except for (i) any representations and
warranties that expressly relate solely to an earlier date, which
representations and warranties were true and accurate in all material respects
on and as of such earlier date, (ii) the representations and warranties
contained in Sections 6.5 and 6.12 of the
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Existing Credit Agreement, which representations and warranties were true and
accurate in all material respects on and as of May 2, 1997, and (iii) (x) the
changes in the condition and operation of the Company that have resulted
directly or indirectly from the terrorist attacks that occurred on September 11,
2001 and related matters and (y) changes disclosed by the Company in a report on
Form 10-K, 10-Q or 8-K filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended, in each case
insofar as such changes affect the representation and warranty contained in the
last sentence of Section 6.2 of the Existing Credit Agreement. The Company
further represents and warrants to the Agent Bank, the Letter of Credit Banks,
and each of the Banks that (i) it has the requisite corporate power and
authority to execute, deliver and perform this Second Amendment, and (ii) this
Second Amendment constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
SECTION 3.2. Amendments to Schedules. Schedule I and Schedule II
of the Existing Credit Agreement, describing the Funded Debt and Subsidiaries of
the Company, respectively, are amended in their entirety to conform to Schedule
I and Schedule II attached to this Second Amendment. The Company represents and
warrants to the Agent Bank, the Letter of Credit Banks, and each of the Banks
that (a) the Company does not have outstanding any Funded Debt except as set
forth on Schedule I to this Second Amendment, and there exists no default under
the provisions of any instrument evidencing such indebtedness or agreement
relating thereto; and (b) Schedule II attached to this Amendment is a complete
and correct list of all present Subsidiaries, all of which are corporations duly
incorporated, in good standing and with corporate power to transact the business
presently conducted by them. Except as disclosed in Schedule II, the Company
owns, directly or indirectly through one or more Subsidiaries, all the shares of
each of the Subsidiaries (except directors' qualifying shares, if any), and all
such shares are validly issued, fully paid and non-assessable and are free and
clear of all liens and rights of others whatsoever.
PART 4
CONDITIONS TO EFFECTIVENESS
SECTION 4.1. Effective Date. This Second Amendment shall be and
become effective on the Effective Date when (i) all of the conditions set forth
in this Section 4.1 shall have been satisfied, and (ii) the Majority Banks and
the Company shall have duly executed counterparts of this Second Amendment and
provided original copies thereof to the Agent Bank.
SECTION 4.1(A). Closing Certificate. The Agent Bank shall have
received an officer's certificate from the Company, in form reasonably
satisfactory to the Agent Bank, certifying that after giving effect to
this Second Amendment, no Default or Event of Default will be in
existence.
SECTION 4.1(B). Prepayment. The Agent Bank shall have
received, (i) for the ratable benefit of each of the Banks, a
prepayment of the Syndicated Loans in an aggregate principal amount of
$625,000,000, together with accrued and unpaid interest thereon, and
(ii) a written notice from the Company pursuant to Section 3.13 of the
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Existing Credit Agreement (which, notwithstanding contrary provisions
of Section 3.13, may be given and become effective on the same day as
the Company makes the prepayment described in clause (i)), irrevocably
reducing the Total Commitments of the Banks to $625,000,000. Such
prepayment shall be without penalty or premium, and amounts prepaid
pursuant to this Section shall be applied to the Syndicated Loan or
Loans designated by the Company in a notice of prepayment delivered to
the Agent Bank pursuant to the first sentence of Section 3.7 of the
Existing Credit Agreement. By their execution hereof, the Banks agree
that (i) notwithstanding contrary provisions contained in Section 3.7
of the Existing Credit Agreement, the Company may prepay Syndicated
Loans pursuant to this Section 4.1(b) on a day other than the last day
of the Interest Period therefor and (ii) such prepayment shall not be
subject to Section 10.3 of the Existing Credit Agreement; provided,
however, that if the Company gives a notice of such prepayment and
fails to make such prepayment, the Company shall be liable for, and
promptly pay upon demand, all funding costs and/or losses as provided
in Section 3.10 of the Existing Credit Agreement.
SECTION 4.1(C). Amendments to Other Facilities. The Company
shall have (a) entered into amendments effecting changes substantially
similar to those effected in Sections 2.4 and 2.5 hereby with respect
to the comparable provisions of (i) the Credit Agreement dated as of
May 19, 2000, as heretofore amended, among the Company, the financial
institutions parties thereto and Bayerische Hypo-und Vereinsbank AG,
New York Branch, as letter of credit bank and agent, and (ii) the
Reimbursement Agreement dated as of May 1, 2000 among the Company, the
financial institutions parties thereto and Commerzbank AG, New York
Branch, as agent and letter of credit fronting bank and (b) terminated
the commitments under (and repaid in full, together with any accrued
interest, all loans under) the Credit Agreement dated as of April 6,
2001 among the Company, the banks parties thereto and Citicorp North
America, Inc., as Administrative Agent.
SECTION 4.1(D). Legal Opinion. The Company shall deliver to
the Agent Bank a legal opinion of counsel to the Company, in form and
content reasonably satisfactory to the Agent Bank, opining that this
Second Amendment has been duly authorized, executed and delivered by
the Company.
SECTION 4.1(E). Business Plan. The Company shall have provided
to the Agent Bank and the Banks its updated business plan for fiscal
year 2002, including without limitation cash flow projections for
fiscal year 2002 on a quarterly basis, such materials being in
substantially the same form and content as the business plan and cash
flow projections most recently presented by the officers of the Company
to the Board of Directors of the Company, or any subcommittee thereof.
SECTION 4.1(F). Amendment Fee. The Agent Bank shall have
received from the Company, for the account of each Bank (a "Consenting
Bank") that has evidenced its agreement hereto as provided in clause
(ii) of Section 4.1 by 5:00 p.m. (Atlanta, Georgia time) on the later
of (i) November 9, 2001 and (ii) the date on which the Agent Bank
issues a notice to the Banks stating that the condition set forth in
clause (ii) of Section 4.1
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has been satisfied, an amendment fee in the amount equal to 15 basis
points (0.15%) on the aggregate amount of such Consenting Bank's
Commitment (determined before giving effect to the reduction in the
Total Commitments contemplated by Section 4.1(b) of this Second
Amendment.
SECTION 4.2. Termination Date. Notwithstanding the terms of
Section 4.1 hereof, in the event that the Company shall fail to comply with each
of the conditions to effectiveness set forth in Section 4.1 on or before
November 30, 2001, this Second Amendment shall not become effective and each of
the signatures submitted by the Majority Banks to the Agent Bank shall be
released.
PART 5
Miscellaneous
SECTION 5.1. References to the Credit Agreement. Each reference to
the Credit Agreement in the Credit Agreement, the Notes or any of the other
instruments, agreements, certificates or other documents executed in connection
therewith (collectively, the "Loan Documents"), shall be deemed to be a
reference to the Amended Credit Agreement, and as the same may be further
amended, restated, supplemented or otherwise modified from time to time in
accordance with Section 12.4 of the Amended Credit Agreement.
SECTION 5.2. Expenses of Agent Bank. The Company agrees to pay, on
demand, all reasonable costs and expenses incurred by the Agent Bank in
connection with the preparation, negotiation and execution of this Second
Amendment and any other Loan Documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including, without
limitation, the reasonable costs and fees of the Agent Bank's legal counsel and
any taxes or expenses associated with or incurred in connection with any
instrument or agreement referred to herein or contemplated hereby.
SECTION 5.3. Benefits. This Second Amendment shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
SECTION 5.4. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA,
WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES.
SECTION 5.5. Effect. Except as expressly herein amended, the terms
and conditions of the Existing Credit Agreement shall remain in full force and
effect without amendment or modification, express or implied. The entering into
this Second Amendment by the Banks shall not be construed or interpreted as an
agreement by the Banks to enter into any future amendment or modification of the
Credit Agreement or any of the other Loan Documents.
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SECTION 5.6. Counterparts; Telecopied Signatures. This Second
Amendment may be executed in any number of counterparts and by different parties
to this Second Amendment on separate counterparts, each of which when so
executed shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns. Any signature delivered or transmitted by
a party by facsimile transmission shall be deemed to be an original signature
hereto.
SECTION 5.7. Further Assurances. The Company agrees to take such
further actions as the Agent Bank shall reasonably request from time to time in
connection herewith to evidence or give effect to the amendments set forth
herein or any of the transactions contemplated hereby.
SECTION 5.8. Section Titles. Section titles and references used
in this Second Amendment shall be without substantive meaning or content of any
kind whatsoever and are not a part of the agreements among the parties hereto.
SECTION 5.9. Release of Claims. To induce the Banks to enter into
this Second Amendment, the Company hereby releases, acquits and forever
discharges the Banks, and all officers, directors, agents, employees, successors
and assigns of the Banks, from any and all liabilities, claims, demands, actions
or causes of actions of any kind or nature (if there be any), whether absolute
or contingent, disputed or undisputed, at law or in equity, or known or unknown,
that the Company now has or ever had against such Persons arising under or in
connection with, directly or indirectly, any of the Loan Documents.
[Signatures omitted]
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