1
Confidential Treatment requested by Atlantic Southeast Airlines, Inc., File No.
0-11097
EXHIBIT 10 (h)
Confidential treatment has been applied for with
respect to certain provisions of this Exhibit, which
provisions have been omitted from this Exhibit,
marked with an asterisk (*) and filed separately with
the XXX
0
XXXXX XXXXXXXXX TO
CREDIT AGREEMENT
DATED APRIL 23, 1987
This Third Amendment To Credit Agreement (this "Third Amendment") is
made and entered into this 17th day of September, 1996, by and among the
ATLANTIC SOUTHEAST AIRLINES, INC., a Georgia corporation (the "Company"), ASA
INVESTMENTS, INC., a Delaware Corporation ("Investments"), MANUFACTURERS
LEASING INTERNATIONAL CORP. ("MHLI"), KAWASAKI LEASING, (USA) INC. as successor
in interest to Kawasaki Leasing International, Inc. [formerly known as Kawasaki
Lease Financing Inc.], and CREDIT LYONNAIS, CAYMAN ISLANDS BRANCH (all of such
financial institutions are hereinafter collectively referred to as the
"Lenders").
W I T N E S S E T H:
WHEREAS, the Company is indebted to the Lenders under the terms of
that certain Credit Agreement dated April 23, 1987, originally among the
Company, Investments, MHLI, and the financial institutions parties thereto as
respectively amended on each of May 23, 1989, and October 31, 1989 (said Credit
Agreement as now or hereafter amended is hereinafter collectively referred to
as the "Credit Agreement"); and
WHEREAS, effective November 30, 1995, Kawasaki Leasing, (USA) Inc. has
succeeded to the participation interest of Kawasaki Leasing International, Inc.
("KLII") under the Credit Agreement; and
WHEREAS, the Company and Investments desire to obtain the approval and
consent of the necessary Lenders to implement a corporate reorganization and an
amendment to the Credit Agreement which will result in (i) each of the Company
and Investments becoming a wholly owned subsidiary of a holding company the
stock of which holding company is owned by the Company's current shareholders
and will be publicly traded, (ii) Investments being removed as a party to the
Credit Agreement and being relieved of its responsibility under any guarantee
thereof, and (iii) the Company being relieved of certain restrictions imposed
under the Credit Agreement; and
WHEREAS, pursuant to the provisions of Section 11.04 of the Credit
Agreement, the parties desire to amend the Credit Agreement as hereinafter
provided.
NOW, THEREFORE, for and in consideration of each party's agreement to
be bound hereby and other good, valuable and adequate consideration, the
parties hereto do hereby agree as follows:
1. All capitalized terms not otherwise specifically defined
herein shall have the meanings ascribed to them under the provisions of the
Credit Agreement.
3
2. Investments shall be removed as a party to the Credit
Agreement with all references to "ASA Investments, Inc." and "Investments"
under the Credit Agreement being hereby deleted in their entirety.
Additionally, from and after the date hereof, Investments shall not be
considered a "Subsidiary" (as defined and provided under the Credit Agreement)
of the Company notwithstanding any provision of the Credit Agreement to the
contrary. In connection therewith, all parties agree that that certain
Guaranty dated as of April 23, 1987, delivered by Investments to MHLI in its
capacity as agent for the benefit of all Lenders (the "Guaranty") is hereby
terminated and shall be of no further force or effect it being the express
agreement of all parties that Investments shall have no obligations or
responsibilities to any one or more of the Lenders and that no Lender shall
have any claim or cause of action against Investments under or in connection
with the Credit Agreement, the credit extended to the Company thereunder, the
Basic Documents, or the Guaranty. In addition, the definition of "Guaranty"
and all references to the "Guaranty" contained in the Credit Agreement or the
Basic Documents are hereby deleted.
3. All references to the "Company" or the "Subsidiaries" of the
Company under the Credit Agreement and all determinations required to be made
with respect thereto shall refer to and include solely and exclusively the
Company and its Subsidiaries (as defined in the Credit Agreement as modified by
this Third Amendment); provided, that in no event shall the Company's
Subsidiaries include (i) Investments, (ii) any parent or holding company owning
all or substantially all of the capital stock of the Company or (iii) any
Person required to be included in any consolidated financial statement, tax
return or governmental filing covering the Company or under any other
statement prepared or determination made in conformity with GAAP which Person
does not meet the definitional requirements of a "Subsidiary" of the Company
under the Credit Agreement.
4. The definitions of "Indebtedness", "Tangible Net Worth",
"Total Assets" and "Total Liabilities" currently contained under Section 1.01
of the Credit Agreement are hereby amended in their entirety to read as
follows:
"Indebtedness" means [*]
"Tangible Net Worth" means as to any Person, the Book Net
Worth of such Person minus (i) the amount, if any, of the Total Assets of such
Person and such Person's Subsidiaries which would be treated as intangibles
under GAAP, (ii) any write-up in the book value of any fixed asset resulting
from a revaluation thereof and (iii) the amount, if any, at which shares of
capital stock of such Person appear on the asset side of such Person's balance
sheet.
"Total Assets" means as to any Person which is a corporation,
all items considered as assets for purposes of GAAP.
"Total Liabilities" means as to any Person which is a
corporation, all items considered as liabilities for purposes of GAAP.
2
4
5. The following definitions shall be added to Section 1.01 of
the Credit Agreement in the appropriate alphabetical order:
"Book Net Worth" means as to any Person, the book value of the
Total Assets of such Person and such Persons's Subsidiaries (exclusive of any
indebtedness owed to such Person or such Person's Subsidiaries by any affiliate
of such Person) which Total Assets are located within the United States of
America minus the book value of the Total Liabilities of such Person and such
Person's Subsidiaries. For purposes of clarity, marketable securities and
commercial paper issued by a foreign entity but held in the United States of
America shall be considered to be assets located within the United States of
America.
"Capitalized Lease" means a capitalized lease of any tangible
real or personal property, as determined pursuant to GAAP.
"Current Maturities of Long Term Debt" means the amounts due,
within any twelve (12) month period following any fiscal quarter end of the
Company, under long-term debt instruments of the Company, as determined
pursuant to GAAP.
[*]
[*]
"GAAP" means generally accepted accounting principles as in
effect in the United States of America and applied on a basis consistent with
that used in the preparation of the Company's audited balance sheet for the
period ending December 31, 1995, and the related results of operation except
for (i) changes therein with which the Company's independent public accountants
concur that are disclosed in the notes to the relevant financial statements and
(ii) any requirements for consolidation inconsistent with the provisions of
Section 3 of the Third Amendment to this Agreement.
[*]
[*]
[*]
"Recent SEC Filings" means collectively (i) the Company's
annual report on Form 10-K for the year ended December 31, 1995 and (ii) the
Company's quarterly reports on Forms 10-Q for the calendar quarters ending
March 31, 1996 and June 30, 1996.
"Subject Reorganization" means the pending proposed
transaction under which (i) the Company shall form a wholly owned Subsidiary
("Holding Company"), (ii) Holding Company shall form a wholly owned subsidiary
("Second Level Subsidiary"), (iii) Second Level Subsidiary shall merge with and
into the Company with the Company surviving and (a) the Company
3
5
shareholders receiving stock in the Holding Company in exchange for the
outstanding stock in the Company, (b) the Holding Company receiving all capital
stock in the Company, and (c) all capital stock in the Holding Company owned by
the Company being canceled, and (iv) the Company's subsequent dividend
distribution to the Holding Company of all capital stock in Investments; all of
which transactions shall result in the Company and Investments becoming wholly
owned subsidiaries of Holding Company.
6. The representations and warranties contained under Sections
5.01 through 5.19 of the Credit Agreement (with all references to "this
Agreement" or "herein" (contained under such Sections to include in particular
the Credit Agreement as amended by this Third Amendment) as they pertain to the
Company are hereby re-affirmed or made (as applicable) by the Company as of the
date hereof; provided that Section 5.10 is being reaffirmed as if "1986" were
"1995" therein. The representations and warranties contained under Sections
5.04, 5.05, 5.06, 5.11, 5.12, 5.13, 5.15, and 5.18 are hereby amended and
restated in their entirety as follows:
"SECTION 5.04 -- Litigation. [*]
SECTION 5.05 -- Financial Statements. (a) The audited balance
sheet as of December 31, 1995, and the unaudited balance sheet as of June 30,
1996, and the related statement of operations for the year (audited) and
quarters (unaudited) then ended and the statements of reconciliations of the
shareholders' equity of the Company (copies of which have been furnished to
Lenders) have been prepared in accordance with generally accepted accounting
principles on a consistent basis with prior years and fairly present the
correct and complete financial condition of the Company as of such dates and
the results of the operations of the Company for such periods, and there has
been no material adverse change of the financial condition or operations of the
Company since June 30, 1996.
SECTION 5.06 -- Title to Properties. The Company has good
title to its properties and assets except for defects which do not materially
affect the operation or financial condition of the Company. There are no
liens, mortgages, security interests, or other encumbrances of any of the items
constituting Collateral under the Security Agreements except those granted and
held in favor of the Lenders.
SECTION 5.11 -- Status as United States Citizen". The Company
is a "citizen of the United States" as that term is used in 49 U.S.C. Section
40102(a)(15), and is an air carrier holding a valid air carrier operating
certificate issued pursuant to 49 U.S.C. Chapter 447 for aircraft capable of
carrying 10 or more individuals.
SECTION 5.12 -- Indebtedness. The Company has no indebtedness
for money borrowed except as disclosed under the Recent SEC Filings.
SECTION 5.13 -- Contingent Liabilities. The Company has no
contingent liabilities except as disclosed under the Recent SEC Filings.
4
6
SECTION 5.15 -- Forms 10-K and 10-Q. The Recent SEC Filings,
as previously delivered to Lenders, correctly describe the principal properties
of the Company and the general nature of the business conducted by the Company.
SECTION 5.18 -- Location of Offices. The Company maintains is
Chief Executive Office and principal place of business is located at 000
Xxxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000".
7. The following representation and warranty is hereby added as a
new Section 5.19:
"SECTION 5.19 -- Subject Reorganization. Upon the
consummation of the Subject Reorganization, the Company shall be and remain in
compliance with all applicable provisions of this Agreement including without
limitation, those covenants contained in Section 6.02, 6.04, 6.05 and 6.06."
8. All representations and warranties contained under Article V
of the Credit Agreement solely as and only to the extent they pertain or apply
to Investments are hereby deleted.
9. Section 6.01 of the Credit Agreement is hereby amended by (i)
deleting Sections 6.01(i)(y) [in both places] and 6.01(i)(z) [in both places],
(ii) deleting Sections 6.01(ii)(y) [in both places] and 6.01(ii)(z) [in both
places], (iii) deleting the phrase "and Investments" as it appears in
6.01(iii)(a), (iv) deleting 6.01(iii)(a)(y), (v) deleting the phrase
"Investments, and immediately upon the filing of any one or more actions or
proceedings against" as it appears in Section 6.01(vii) and (vi) adding the
following phrase after the word "Company" as it appears in Section 6.01 (iv):
"or any parent or holding company of the Company"
10. Section 6.02 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"SECTION 6.02 -- [*]
11. Section 6.03 of the Credit Agreement is hereby deleted in its
entirety and such Section is hereby reserved for future use.
12. Sections 6.04, 6.05 and 6.06 are hereby amended in their
entirety to read as follows:
"SECTION 6.04 -- [*]
SECTION 6.05 -- [*]
SECTION 6.06 -- [*]
5
7
13. Section 6.14 of the Credit Agreement is hereby deleted in its
entirety and such Section is hereby reserved for future use.
14. Sections 7.01 through 7.04 are hereby amended and restated in
their entirety to read as follows:
"SECTION 7.01 -- [*]
SECTION 7.02 -- [*]
SECTION 7.03 -- [*]
SECTION 7.04 -- [*]
15. Section 7.06 is hereby amended and restated in its entirety to
read as follows:
"SECTION 7.06 -- [*]
16. Sections 7.07 and 7.08 of the Credit Agreement are hereby
deleted in their entirety and such Sections are hereby reserved for future use.
17. Sections 9.01(a)(i), 9.01(a)(ii), 9.01(a)(iii), 9.01(a)(iv),
and 9.01(a)(ix) of the Credit Agreement are hereby amended to delete the phrase
"or Investments" where included therein.
18. Section 9.01(a)(viii) of the Credit Agreement is hereby
amended to replace the reference to [*] with [*].
19. Section 9.01(a)(x) of the Credit Agreement is hereby amended
to delete the phrase "or the Guaranty," where the same is located therein.
20. Section 9.01(b) of the Credit Agreement is hereby amended to
delete the phrase "and Investments" in the three places such phrase appears
therein.
21. Section 11.01 of the Credit Agreement is hereby amended so as
to delete the phrases "the Guaranty" and "or Investments" in the two places
each such respective phrase appears therein.
22. Section 11.03 of the Credit Agreement is hereby amended so as
to delete the phrases "the Guaranty" and "and Investments" in each and every
place either such respective phrase appears therein.
6
8
23. Section 11.04 of the Credit Agreement is hereby amended so as
to delete the phrase "Investments," in the one place such phrase appears
therein.
24. Section 11.05 of the Credit Agreement is hereby amended so as
to delete the phrase "and Investments" in the two places such phrase appears
therein.
25. Section 11.09 of the Credit Agreement is hereby amended so as
to delete the phrase " or Investments" in the one place such phrase appears
therein.
26. Section 11.10 of the Credit Agreement is hereby amended so as
to delete (i) the phrases "or Investments" and "and Investments" and (ii) the
word "Investments" in the one place each such respective phrase or word appears
therein.
27. Section 11.12 of the Credit Agreement is hereby deleted in its
entirety.
28. Each of the undersigned Lenders represents and warrants to the
Company that such undersigned Lender has all requisite power and authority to
execute this Third Amendment which shall, upon execution by all of the
undersigned Lenders, constitute the legally binding obligation of such Lender.
29. The undersigned Lenders hereby consent to the implementation
and consummation of the Subject Reorganization (as defined in this Third
Amendment) by the Company and Investments and hereby waive (i) the Company's
and Investment's compliance with any other provisions contained under the
Credit Agreement or any other Basic Document which are deemed, interpreted or
construed to prohibit, prevent or restrict the Company's and Investment's
undertaking of the Subject Reorganization or (ii) any default or breach of any
provision of either the Credit Agreement or any Basic Document resulting solely
from the implementation and consummation of the Subject Reorganization by the
Company and Investments provided, that nothing contained under subclause (ii)
hereof shall be deemed, interpreted or construed to constitute a waiver by any
Lender of any default or breach committed by the Company under the Credit
Agreement or any Basic Document (as amended hereby) from and after the
consummation of the Subject Reorganization.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be executed by their duly authorized officers as of the date first
above written.
ASA Investments, Inc Atlantic Southeast Airlines, Inc.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxx
------------------------------ ---------------------------------
Title: Treasurer Title: Vice President - Finance
7
9
Manufacturers Hanover Leasing International Credit Lyonnais, Cayman Islands Branch
Corp., as Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxxx Xxxxxx
------------------------------------- ---------------------------------------
Title: Attorney in Fact Title:
Kawasaki Leasing, (USA) Inc
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Title: President
8
