AMENDMENT NO. 1 TO AMENDED AND RESTATED SECURED SUPER-PRIORITY DEBTOR IN POSSESSION CREDIT AGREEMENT
Exhibit
10.5(b)
AMENDMENT
NO. 1
TO
AMENDED AND RESTATED SECURED SUPER-PRIORITY DEBTOR IN POSSESSION CREDIT
AGREEMENT
W
I T N E
S S E T H:
Whereas,
Borrower has requested certain amendments to the Credit Agreement as herein
set
forth; and
Whereas,
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
inserting the following proviso at the end of clause (c)(i) of Section
1.2 (Prepayments):
“provided,
however,
that
solely for the purpose of this clause (i) and solely to the extent that an
appraisal of the Replacement Borrowing Base Assets has not been performed prior
to the Prepayment Date, the value of such Replacement Borrowing Base Assets
set
forth in the Borrowing Base Certificate may be the Borrower’s good faith
estimate of the value of such Replacement Borrowing Base Assets, which shall
be
evidenced in a manner reasonably satisfactory to the Administrative
Agent.”
(b) by
inserting “, as of the Closing Date,” between “identifies” and “those” in the
second sentence of Section
3.17 (Insurance).
(c) by
deleting paragraph (l) of Section
6.2 (Investments, Loans and Advances)
in its
entirety and inserting in lieu thereof the following:
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“(l) Borrower
may
make Investments in the form of advances under a revolving loan facility in
an
aggregate principal amount not to exceed $25,000,000 outstanding at any time,
to
the
Borrower’s Plans or any similar benefit plans of the Borrower (together, the
“Benefits
Plan”)
for the payment of ordinary operating expenses of the Benefits Plans (including
the payment of benefits in accordance with the terms of the Benefits Plans
and
periodic premiums under insurance or annuity contracts) or for purposes
incidental to the ordinary operation of the Benefits Plans;”
(d) by
deleting paragraph (a)(iii) of Section
6.3 (Indebtedness)
in its
entirety and inserting in lieu thereof the following:
“(iii)
Indebtedness consisting of indemnification obligations owed by Comair, Inc.
to
Bombardier Inc., a Canadian national corporation, relating to certain CRJ
leases,
in an amount not to exceed $9,000,000 in the aggregate;”
(e) by
deleting the word “and” at the end of paragraph (a)(xix) of Section
6.3 (Indebtedness),
replacing the period at the end of clause (a)(xx) of Section
6.3
with “;
and” and inserting after paragraph (a)(xx) of Section
6.3
the
following new paragraph (a)(xxi):
“(xxi)
in the event that the transactions underlying the Jet Fuel Inventory Supply
Agreement are recharacterized as Indebtedness owed by the Borrower, such
Indebtedness.”
(f) by
deleting the word “and” at the end of paragraph (r) of Section
6.7 (Liens),
replacing the period at the end of paragraph (s) of Section
6.7
with “;
and”, and inserting after paragraph (s) of Section
6.7
the
following new paragraph (t):
“(t)
the Lien of ▇. ▇▇▇▇ on the Jet Fuel Assets, in the event that the transactions
underlying the Jet Fuel Inventory Supply Agreement are recharacterized as
Indebtedness owed by Borrower.”
(g) by
deleting the word “and” at the end of paragraph (r)
of Section
6.8 (Sale of Stock and Assets),
replacing the period at the end of paragraph (s) of Section
6.8
with “;
and”, and inserting after paragraph (s) of Section
6.8
the
following new paragraph (t):
“(t)
the sale, assignment and/or other transfer of the Jet Fuel Assets to ▇. ▇▇▇▇,
in
each case pursuant to the Jet Fuel Inventory Supply Agreement.”
(h) by
inserting the following at the end of Section 6.17 (No Speculative
Transactions):
“and
except for the transactions underlying the Jet Fuel Inventory Supply
Agreement.”
(i) by
inserting the following proviso at the end of clause (q)(iii) of Section
8.1 (Events of Default):
“and,
provided,
further,
that, if the transactions underlying the Jet Fuel Inventory Supply Agreement
are
recharacterized as Indebtedness owed by Borrower, any action by ▇. ▇▇▇▇, as
secured party, to foreclose or obtain a lien on the Jet Fuel Assets, or the
filing of a motion seeking, or entry by the Bankruptcy Court of, an Order
authorizing such foreclosure or lien shall not constitute an Event of Default
under this clause (iii),”
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(j) by
inserting the following definitions in Annex
A to Credit Agreement (Definitions)
in the
appropriate place to preserve the alphabetical order of the definitions in
such
annex:
“Amendment
No. 1 Effective Date”
has
the
meaning ascribed to the term “Effective Date” in Amendment No. 1 to Amended and
Restated Secured Super-Priority Debtor In Possession Credit Agreement dated
as
of August 31, 2006.
“Benefits
Plans”
has
the
meaning ascribed to such term in Section 6.2(l).
“Comair”
means Comair Holdings, LLC, a Delaware limited liability company, and its
Subsidiaries.
“Connection
Carrier”
means any regional carrier that operates flights using the “DL” designation code
pursuant to contractual arrangements with Borrower.
“▇.
▇▇▇▇”
means ▇. ▇▇▇▇ & Company, a New York general partnership.
“Jet
Fuel Assets”
means (i) the existing jet fuel inventory of Borrower’s or its Subsidiaries’, or
any Connection Carrier’s or SkyTeam Partner’s, operations in or pipelines in
transit to Atlanta, Cincinnati and New York that is to be sold to ▇. ▇▇▇▇
pursuant to the Jet Fuel Inventory Supply Agreement, or other jet fuel subject
to the Jet Fuel Inventory Supply Agreement, (ii) Borrower’s
or its Subsidiaries’ rights in certain existing supply and third-party sale
agreements to be assigned or assumed by ▇. ▇▇▇▇ pursuant to the Jet Fuel
Inventory Supply Agreement, and (iii) Borrower’s
or its Subsidiaries’ rights in certain existing infrastructure agreements to be
transferred to ▇. ▇▇▇▇ pursuant to the Jet Fuel Inventory Supply
Agreement.
“Jet
Fuel Inventory Supply Agreement”
means the Jet Fuel Inventory Supply Agreement among
Borrower, ▇. ▇▇▇▇ and Epsilon Trading, Inc., substantially in the form provided
to the Administrative Agent prior to the Amendment
No. 1 Effective
Date with such modifications or amendments as the Administrative Agent may
approve from time to time in its discretion, such approval not to be
unreasonably withheld or delayed, pursuant to which ▇. ▇▇▇▇ will purchase,
assume and/or otherwise transfer the Jet Fuel Assets and supply jet fuel for
Borrower's operations in Atlanta, Cincinnati and New York.
“SkyTeam
Partner”
means any airline that is a member of the SkyTeam international airline
alliance.
(k) by
deleting the phrase “if it had been placed in service on or prior to October 22,
1994” in each of the definitions of “Non-1110 Aviation Assets” and “Non-1110
Agreements” in Annex
A to Credit Agreement (Definitions)
and
replacing it with “, were it to have been first placed in service after October
22, 1994 rather than prior thereto” in each such definition;
(l) by
adding
the following clause (ix) at the end of the definition of “Excluded Collateral”
in Annex
A to Credit Agreement (Definitions):
“
and (ix) Jet Fuel Assets to the extent subject to the Lien referred to in
Section
6.7(t)”.
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(m) by
deleting “or (o)”
in
clause (iv) of paragraph (a) of the definition of “Net Cash Proceeds” in
Annex
A to Credit Agreement (Definitions)
and
inserting in lieu thereof the following:
“,
(o)
or
(t)”
(n) by
deleting Disclosure
Schedule 3.7 (Labor Matters)
in its
entirety and inserting in lieu thereof Exhibit
A
hereto.
(o) by
deleting Disclosure
Schedule 3.12 (ERISA Plans)
in its
entirety and inserting in lieu thereof Exhibit
B
hereto.
Section 2. Consent
to Amendments of Post-Petition Skymiles Facility Documents.
The
Administrative Agent and the Lenders executing the Acknowledgement and Consent
(as defined in Section 3(a)(ii) below), consent to and approve the terms of
(i) Amendment No. 1 to the Second Amended and Restated Advanced Payment
Supplement to the Co-Branded Credit Card Program Agreement dated as of the
date
hereof among American Express Travel Related Services Company, Inc.
(“TRS”),
American Express Bank, F.S.B., Borrower and DLMS and (ii) Amendment No. 1 to
the
Second Amended and Restated Advanced Payment Supplement to the Membership
Rewards Agreement dated as of the date hereof among Borrower, DLMS and
TRS.
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)
constituting the percentage of applicable Lenders required under Section
13.2 (Amendments and Waivers)
of the Credit Agreement; and
(iii) such
additional documentation as the Administrative Agent may reasonably
require.
(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
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.
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(c) Representations
and Warranties.
Each of the representations and warranties contained in Section
5
below shall be true and correct in all respects.
Section 4. Fees
and Expenses.
As
provided in Section
13.3 (Fees and Expenses)
of the Credit Agreement, 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) 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 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 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.
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(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.
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DELTA
AIR LINES, INC.,
as Borrower
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:
Vice
President and Treasurer
GENERAL
ELECTRIC CAPITAL
CORPORATION,
as
Administrative Agent
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Duly
Authorized Signatory
Other
Credit Parties:
ASA
HOLDINGS, INC.
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:
President
COMAIR
HOLDINGS, LLC
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇
Title:
Assistant
Treasurer
COMAIR,
INC.
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇
Title:
Treasurer
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Amendment
No. 1 to A&R Delta DIP Credit Agreement
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COMAIR
SERVICES, INC.
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇
Title:
Treasurer
CROWN
ROOMS, INC.
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇
Title:
Assistant
Treasurer
DAL
AIRCRAFT TRADING, INC.
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
Title:
Treasurer
DAL
GLOBAL SERVICES, LLC
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇
Title:
Assistant
Treasurer
DAL
MOSCOW, INC.
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
Warwa
Title:
Treasurer
DELTA
AIRELITE BUSINESS JETS, INC.
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇
Title:
Assistant
Treasurer
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Amendment
No. 1 to A&R Delta DIP Credit Agreement
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DELTA
BENEFITS MANAGEMENT, INC.
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:
Treasurer
DELTA
CONNECTION ACADEMY, INC.
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇
Title:
Treasurer
DELTA
CORPORATE IDENTITY, INC.
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇
Title:
Assistant
Treasurer
DELTA
LOYALTY MANAGEMENT SERVICES, LLC
By:
/s/
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
J.
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Vice
President
DELTA
TECHNOLOGY, LLC
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Assistant
Secretary
DELTA
VENTURES III, LLC
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇
Title:
Vice
President - Tax
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Amendment
No. 1 to A&R Delta DIP Credit Agreement
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EPSILON
TRADING, INC.
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇. ▇▇▇▇▇
Title:
Treasurer
and Controller
KAPPA
CAPITAL MANAGEMENT, INC.
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇
Title:
Vice
President and Treasurer
SONG,
LLC
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
Title:
Assistant
Treasurer
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Amendment
No. 1 to A&R Delta DIP Credit Agreement
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[EXHIBITS
INTENTIONALLY OMITTED]