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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-1/A
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 4)
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ASA HOLDINGS, INC.
(Name of Issuer)
DELTA AIR LINES, INC.
DELTA AIR LINES HOLDINGS, INC.
DELTA SUB, INC.
(Bidders)
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Common Stock, $0.10 Par Value
(Title of Class of Securities)
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04338Q 10 7
(CUSIP Number of Class of Securities)
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Robert S. Harkey, Esquire
Senior Vice President - General Counsel
Delta Air Lines, Inc.
Hartsfield Atlanta International Airport
Atlanta, GA 30320
(404) 715-2387
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Bidders)
-----------------------
With Copies to:
Joseph Rinaldi
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
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February 22, 1999
(Date Tender Offer First Published, Sent or Given to Security Holder)
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<PAGE>
This Amendment No. 4 amends and supplements the Tender Offer Statement on
Schedule 14D-1 filed on February 22, 1999, as amended and supplemented on March
3, 1999, March 5, 1999 and March 11, 1999 (the "Schedule 14D-1"), by (i) Delta
Air Lines, Inc., a Delaware corporation ("Delta"), (ii) Delta Sub, Inc., a
Georgia corporation and an indirect, wholly owned subsidiary of Delta ("Delta
Sub") and (iii) Delta Air Lines Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of Delta, relating to the offer by Delta Sub to purchase
all of the issued and outstanding shares (the "Shares") of common stock, $0.10
par value per share, of ASA Holdings, Inc., a Georgia corporation ("ASA"), at a
price of $34.00 per Share, net to the seller in cash, upon the terms and subject
to the conditions set forth in the Offer to Purchase dated February 22, 1999 and
in the related Letter of Transmittal, copies of which are attached as Exhibits
(a)(1) and (a)(2) to the Schedule 14D-1 (which are herein collectively referred
to as the "Offer").
Capitalized terms not separately defined herein shall have the meanings
specified in the Schedule 14D-1.
Item 4. Source and Amount of Funds or Other Consideration
Items 4(a)-(c) are hereby amended and supplemented as follows:
Pursuant to a commitment letter dated March 4, 1999 (the "Commitment
Letter"), Delta has obtained a commitment from The Chase Manhattan Bank
("Chase") to provide to Delta a senior unsecured term loan (the "Term Loan") of
up to $500 million, the proceeds of which would be used to pay a portion of the
funds required by Delta and Delta Sub to consummate the Offer and the Merger and
to pay related fees and expenses. Chase will serve as administrative agent in
respect of the Term Loan and Chase Securities Inc. ("CSI") will serve as lead
arranger and book manager. The principal terms of the Term Loan, including the
covenants and events of default thereunder, shall be substantially similar to
those applicable to the 1997 Bank Credit Agreement.
The Term Loan may be funded in two drawings: (i) on a date following the
Expiration Date, in connection with the consummation of the Offer (the "First
Drawdown Date"), and (ii) on a date following the consummation of the Merger
(the "Second Drawdown Date"). Notwithstanding the foregoing, all unfunded
commitments in respect of the Term Loan shall automatically terminate on the
120th day after the First Drawdown Date. All borrowings under the Term Loan will
mature twenty-four months after the First Drawdown Date. All amounts outstanding
under the Term Loan will bear interest, at Delta's option, at the base rate plus
an applicable margin or at the Eurodollar rate plus an applicable margin (such
Eurodollar borrowings being available to Delta in interest periods of 1, 2, 3 or
6 months). Interest payments on base rate borrowings shall be made quarterly in
arrears, whereas interest payments on Eurodollar borrowings shall be made at the
end of the interest period designated by Delta (but not less than once every
three months, in the case of 6-month interest periods). The applicable margin to
base rate and Eurodollar borrowings will vary between 0% and 1.00% (in the case
of base rate borrowings) and between .625% and 2.00% (in the case of Eurodollar
borrowings), in each case depending on the rating applicable to Delta's long
term senior unsecured debt as established from time to time by Standard & Poor's
and Moody's Investors Services. If such ratings are below BBB- (in the case of
Standard & Poor's) and Baa3 (in the case of Moody's Investor Services), then
Delta shall be required to maintain as of the last day of each fiscal quarter a
ratio (determined on a rolling four-quarter basis) of (i) consolidated EBITDA
plus aircraft operating rental expense to (ii) consolidated interest expense
plus aircraft operating rental expense, of not less than 1.5 to 1.
Chase's commitment to fund Delta on the First Drawdown Date is subject to
a number of conditions, including (i) Chase's and CSI's completion of and
satisfaction in all respects with a due diligence investigation of Delta, ASA
and their respective subsidiaries, (ii) there not having been, since December
31, 1998, any material adverse change in the condition or operations of the
Delta and its subsidiaries, considered as a whole (on a pro forma basis assuming
consummation of the Offer and Merger), (iii) no information submitted to Chase
and CSI, when considered as a whole with all such information so submitted,
should prove to have been inaccurate, incomplete or misleading in any material
respect, (iv) Chase and CSI not becoming aware after March 4, 1999 of any
information or other matter (including any matter relating to financial models
and underlying assumptions relating to any projections previously provided by
Delta to Chase or CSI) that in their judgment is inconsistent in a material and
adverse manner with any information or other matter disclosed to them prior to
March 4, 1999, (v) there not having occurred a material disruption of or
material adverse change in conditions in the financial, banking or capital
markets that, in Chase's and CSI's reasonable judgment, could impair the
syndication of the Term Loan, (vi) Chase's and CSI's satisfaction that, until
the First Drawdown Date, there shall be no competing offering,
2
<PAGE>
placement or arrangement of any bank financing (including liquidity facilities)
by or on behalf of Delta or any of its affiliates (other than ASA), (vii)
preparation of satisfactory documentation relating to the Term Loan, (viii)
consummation of the Offer, (ix) the receipt by Delta and/or ASA of all necessary
governmental and third party consents and approvals in connection with the Term
Loan and the Offer, and the expiration of all applicable waiting periods, except
in each case to the extent that failure to obtain any such consent or approval
would not have a material adverse effect on Delta, ASA and their respective
subsidiaries considered as a whole (on a pro forma basis, assuming consummation
of the Offer and the Merger), (x) the absence of any litigation, investigation
or proceeding pending or threatened in any court or before any arbitrator or
governmental instrumentality (A) with respect to which there is a reasonable
possibility of an adverse decision that would be reasonably likely to have a
material adverse effect on the condition or operations of Delta, ASA and their
respective subsidiaries considered as a whole (on a pro forma basis, assuming
consummation of the Offer and the Merger) or (B) that purports to affect the
validity of the Term Loan, (xi) payment of all fees due to CSI and Chase under
the Term Loan and (xii) other customary closing conditions.
Chase's obligation to fund Delta on the Second Drawdown Date is
contingent upon the consummation of the Merger (with the aggregate cash
consideration paid to ASA shareholders in the Offer and the Merger not exceeding
$750,000,000) and other customary conditions substantially similar to those that
would be applicable to borrowings under the 1997 Bank Credit Agreement,
including absence of any default and reaffirmation of representations and
warranties, except representations and warranties relating to material adverse
change and certain other matters. Delta may prepay the Term Loan in whole or in
part at any time, subject to payment by Delta of customary "broken funding"
costs, if any, associated with any prepayment of a Eurodollar loan other than at
the end of the applicable interest period. The Commitment Letter also provides
that Delta shall pay to Chase a commitment fee of 0.20% per annum on all
unfunded commitments under the Term Loan facility for the period beginning on
the date of execution of the definitive documentation for the Term Loan and
ending on the date on which no unfunded commitments remain in place.
The foregoing summary of certain provisions of the Commitment Letter does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, the Commitment Letter, a copy of which appears as Exhibit (b)(3)
hereto.
Item 11. Material to Be Filed as Exhibits
Item 11 is hereby amended and supplemented as follows:
(b)(3) Term Loan Commitment Letter from Chase Securities Inc. and The
Chase Manhattan Bank to Delta Air Lines, Inc., dated as of
March 4, 1999.
3
<PAGE>
After due inquiry and to the best of our knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
March 11, 1999 DELTA AIR LINES, INC.
By: /s/ Maurice W. Worth
-------------------------------------
Name: Maurice W. Worth
Title: Chief Operating Officer
DELTA AIR LINES HOLDINGS, INC.
By: /s/ Leslie P. Klemperer
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Name: Leslie P. Klemperer
Title: Vice President and Secretary
DELTA SUB, INC.
By: /s/ Dean C. Arvidson
-------------------------------------
Name: Dean C. Arvidson
Title: Secretary
4
<PAGE>
EXHIBIT INDEX
Exhibit No.
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(b)(3) Term Loan Commitment Letter from Chase Securities Inc. and The Chase
Manhattan Bank to Delta Air Lines, Inc., dated as of March 4, 1999.
EXHIBIT (b)(3)
[GRAPHIC OMITTED]
CHASE LOGO
CHASE SECURITIES INC.
270 Park Avenue
New York, New York 10017
THE CHASE MANHATTAN BANK
270 Park Avenue
New York, New York 10017
March 4, 1999
$500,000,000 Term Loan
Commitment Letter
-----------------
Delta Air Lines, Inc.
Hartsfield Atlanta International Airport
Atlanta, Georgia 30320
Attention: Warren C. Jenson
Executive Vice President and
Chief Financial Officer
Ladies and Gentlemen:
Delta Air Lines, Inc. (the "Buyer" or the "Borrower") has
advised Chase Securities Inc. ("CSI") and The Chase Manhattan Bank ("Chase")
that the Buyer intends to acquire (the "Acquisition") all of the outstanding
common stock of ASA Holdings, Inc. (the "Target") for cash consideration not to
exceed $750,000,000. References herein to the "Acquisition" shall include the
financings described herein and all other transactions related to the
Acquisition. You have also advised us that you wish to obtain a senior unsecured
term loan (the "Term Loan") in the amount of up to $500,000,000 to provide
partial financing of the Acquisition.
CSI is pleased to advise you that it is willing to act as lead
arranger and book manager for the Term Loan, and Chase is pleased to advise you
of its commitment to provide the entire amount of the Term Loan. The Statement
of Terms and Conditions attached as Exhibit A hereto (the "Term Sheet") sets
forth the principal terms and conditions on and subject to which Chase is
willing to make available the Term Loan.
Commitment Letter
<PAGE>
2
It is agreed that Chase will act as the sole and exclusive
administrative agent in respect of the Term Loan, and that CSI will act as lead
arranger and book manager in respect of the Term Loan, and each will, in such
capacities, perform the duties and exercise the authority customarily performed
and exercised by it in such roles. You agree that no other agents, co-agents or
arrangers will be appointed (except as provided in the Term Sheet), no other
titles will be awarded and no compensation (other than that expressly
contemplated by the Fee Letter referred to below) will be paid in connection
with the Term Loan unless you and we shall so agree.
We intend to syndicate the Term Loan to a group of financial
institutions (together with Chase, the "Lenders") identified by us and
reasonably acceptable to you. CSI intends to commence syndication efforts
promptly, and you agree actively to assist CSI in completing a syndication
satisfactory to it. Such assistance shall include (a) your using commercially
reasonable efforts to ensure that the syndication efforts benefit materially
from your existing lending relationships, (b) direct contact between your senior
management and advisors and the proposed Lenders, (c) assistance in the
preparation of a Confidential Information Memorandum and other marketing
materials to be used in connection with the syndication and (d) the hosting,
with CSI, of one or more conference calls with prospective Lenders.
CSI will manage all aspects of the syndication in consultation
with you, including decisions as to the selection of institutions to be
approached and when they will be approached, when their commitments will be
accepted, which institutions will participate, the allocations of the
commitments among the Lenders and the amount and distribution of fees among the
Lenders. To assist CSI in its syndication efforts, you agree promptly to prepare
and provide to CSI and Chase such information with respect to the Borrower, the
Target, the Acquisition and the other transactions contemplated hereby,
including financial information and projections (the "Projections"), as we may
reasonably request in connection with the arrangement and syndication of the
Term Loan. You hereby represent and covenant that (a) all information other than
the Projections (the "Information") that has been or will be made available to
Chase or CSI by you or any of your representatives, as supplemented from time to
time prior to the Closing Date (as such term is defined in the Term Sheet),
shall be complete and correct in all material respects and does not or will not,
as so supplemented, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained
therein not materially misleading in light of the circumstances under which such
statements are made, provided that, in the case of Information relating to the
Target, this representation and covenant is being given only as to the
Borrower's actual knowledge, and (b) the Projections that have been or will be
made available to Chase or CSI by you or any of your representatives have been
or will be prepared in good faith based upon reasonable assumptions. You
understand that in arranging and syndicating the Term Loan we may use and rely
on the Information and Projections without independent verification thereof. The
effectiveness of this paragraph and the two preceding paragraphs shall survive
the execution and delivery of definitive financing documentation.
As consideration for Chase's commitment hereunder and CSI's
agreement to perform the services described herein, you agree to pay to Chase
the nonrefundable fees set forth in the Fee Letter (the "Fee Letter") delivered
herewith.
Chase's commitment hereunder and CSI's agreement to perform
the services described herein are subject to (i) our completion of and
satisfaction in all respects with a due diligence investigation of the Borrower,
the Target and their respective subsidiaries, (ii) there not having been, since
December 31, 1998, any material adverse change in the condition or operations of
the Buyer and its subsidiaries, considered as a whole (on a pro forma basis
assuming consummation of the Acquisition), (iii) our not becoming aware after
the date hereof of any information or other matter (including any
Commitment Letter
<PAGE>
3
matter relating to financial models and underlying assumptions relating to the
Projections) that in our judgment is inconsistent in a material and adverse
manner with any information or other matter disclosed to us prior to the date
hereof, (iv) there not having occurred a material disruption of or material
adverse change in conditions in the financial, banking or capital markets that,
in our reasonable judgment, could impair the syndication of the Term Loan, (v)
our satisfaction that, until the Closing Date, there shall be no competing
offering, placement or arrangement of any bank financing (including liquidity
facilities) by or on behalf of the Borrower or any of its affiliates (other than
the Target), and (vi) the other conditions set forth or referred to in the Term
Sheet. Such commitment and agreement of Chase and CSI are also subject to the
satisfactory negotiation, execution and delivery of loan documents for the Term
Loan on or prior to April 26, 1999, which shall be based upon and substantially
consistent with the Term Sheet and, except as otherwise specifically
contemplated hereby or by the Term Sheet, shall be substantially similar to the
Existing Credit Agreement (as defined in the Term Sheet).
You agree (a) to indemnify and hold harmless Chase, CSI, their
affiliates and their respective officers, directors, employees, advisors, and
agents (each, an "indemnified person") from and against any and all losses,
claims, damages and liabilities to which any such indemnified person may become
subject arising out of or in connection with this Commitment Letter, the Term
Loan, the use of the proceeds thereof, the Acquisition or any related
transaction or any claim, litigation, investigation or proceeding relating to
any of the foregoing, regardless of whether any indemnified person is a party
thereto, and to reimburse each indemnified person upon demand for any legal or
other expenses incurred in connection with investigating or defending any of the
foregoing, provided that the foregoing indemnity will not, as to any indemnified
person, apply to losses, claims, damages, liabilities or related expenses to the
extent they are found by a final, non-appealable judgment of a court to arise
from the willful misconduct or gross negligence of such indemnified person, and
(b) to reimburse Chase, CSI and their affiliates on demand for all reasonable
out-of-pocket expenses (including syndication expenses and reasonable fees,
charges and disbursements of counsel) incurred in connection with the Term Loan
and any related documentation (including this Commitment Letter and the
definitive financing documentation). No indemnified person shall be liable for
any damages arising from the use by others of Information or other materials
obtained through electronic, telecommunications or other information
transmission systems or for any special, indirect, consequential or punitive
damages in connection with the Term Loan.
You acknowledge that Chase and its affiliates (the term
"Chase" as used below in this paragraph being understood to include such
affiliates) may be providing debt financing, equity capital or other services
(including financial advisory services) to other companies in respect of which
you may have conflicting interests regarding the transactions described herein
and otherwise. Chase will not use confidential information obtained from you by
virtue of the transactions contemplated by this Commitment Letter or its other
relationships with you in connection with the performance by Chase of services
for other companies, and Chase will not furnish any such information to other
companies. Chase further confirms that it will comply with its obligations under
the confidentiality agreement dated January 22, 1999 previously delivered to
you. You also acknowledge that Chase has no obligation to use in connection with
the transactions contemplated by this Commitment Letter, or to furnish to you,
confidential information obtained from other companies.
This Commitment Letter shall not be assignable by you without
the prior written consent of Chase and CSI (and any purported assignment without
such consent shall be null and void), is intended to be solely for the benefit
of the parties hereto and is not intended to confer any benefits upon, or create
any rights in favor of, any person other than the parties hereto. This
Commitment Letter may not be amended or waived except by an instrument in
writing signed by you, Chase and CSI. This Commitment
Commitment Letter
<PAGE>
4
Letter may be executed in any number of counterparts, each of which shall be an
original, and all of which, when taken together, shall constitute one agreement.
Delivery of an executed signature page of this Commitment Letter by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof. This Commitment Letter and the Fee Letter are the only agreements that
have been entered into among us with respect to the Term Loan and set forth the
entire understanding of the parties with respect thereto. This Commitment Letter
shall be governed by, and construed in accordance with, the laws of the State of
New York.
This Commitment Letter is delivered to you at your request on
the understanding that neither this Commitment Letter, the Term Sheet or the Fee
Letter nor any of their terms or substance shall be disclosed, directly or
indirectly, to any other person except (a) to the officers, agents and advisors
of the Buyer who are directly involved in the consideration of this matter, (b)
in the case of the Commitment Letter and the Term Sheet only, to the officers,
agents and advisors of the Target who are directly involved in the consideration
of this matter, on a confidential basis, or (c) as may be compelled in a
judicial or administrative proceeding or as otherwise required by law (in which
case you agree to inform us promptly thereof), provided, that the foregoing
restrictions shall cease to apply (except in respect of the Fee Letter and its
terms and substance) after this Commitment Letter has been accepted by you.
The compensation, reimbursement, indemnification and
confidentiality provisions contained herein and in the Fee Letter shall remain
in full force and effect regardless of whether definitive financing
documentation shall be executed and delivered and notwithstanding the
termination of this Commitment Letter or Chase's commitment hereunder.
If the foregoing correctly sets forth our agreement, please
indicate your acceptance of the terms hereof and of the Term Sheet and the Fee
Letter by returning to us executed counterparts hereof and of the Fee Letter,
not later than 5:00 p.m., New York City time, on March 4, 1999. This offer will
automatically expire at such time in the event we have not received such
executed counterparts in accordance with the immediately preceding sentence.
Commitment Letter
<PAGE>
5
We are pleased to have been given the opportunity to assist
you in connection with this important financing.
Very truly yours,
CHASE SECURITIES INC.
By: /s/ Marian N. Schulman
------------------------------
Name: Marian N. Schulman
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Matthew H. Massie
------------------------------
Name: Matthew H. Massie
Title: Managing Director
Accepted and agreed to as of
the date first above written:
DELTA AIR LINES, INC.
By: /s/ Edward H. West
----------------------------
Name: Edward H. West
Title: Vice President -
Financial Planning & Analysis
Commitment Letter
<PAGE>
EXHIBIT A
---------
[GRAPHIC OMITTED]
CHASE LOGO
DELTA AIR LINES, INC.
$500,000,000 TERM LOAN
TERM SHEET
Delta Air Lines, Inc. intends to acquire (the "Acquisition")
all of the outstanding common stock of ASA Holdings, Inc. (the "Target") for
cash consideration not to exceed $750,000,000. References herein to the
"Acquisition" shall include the financings described herein and all other
transactions related to the Acquisition. Set forth below is a summary of terms
and conditions for a senior unsecured term loan to be used to provide partial
financing of the Acquisition.
Borrower: Delta Air Lines, Inc. (the "Buyer" or the "Borrower").
Lead Arranger and Book
Manager: Chase Securities Inc. ("CSI"; in such capacity, the
"Arranger").
Administrative Agent: The Chase Manhattan Bank ("Chase"; in such capacity,
the "Administrative Agent").
Syndication Agent: Citibank, N.A. ("Citibank"; in such capacity, the
"Syndication Agent").
Lenders: Chase and/or other financial institutions selected by
the Arranger and reasonably acceptable to the
Borrower.
Amount of Term Loan: Senior unsecured term loan of up to $500 million
(the "Term Loan").
Purpose/Use of Proceeds: To finance a portion of the cash consideration to be
paid in connection with the Acquisition and to pay
related fees and expenses.
Final Maturity of Term
Loan: Twenty-four months following the Closing Date (as
defined below).
Availability: The Term Loan may be funded in two drawings, on the
Closing Date and on the date on which the Target shall
become a wholly owned subsidiary of the Borrower
pursuant to a merger transaction (the "Merger").
Notwithstanding the foregoing, all unfunded
commitments in respect of the Term Loan shall
automatically terminate on the 120th day after the
Closing Date.
Amortization: None.
Interest Rate: All amounts outstanding under the Term Loan shall bear
interest, at the Borrower's option, as follows:
A. at the Alternate Base Rate ("ABR") plus the
Applicable Margin per annum; or
B. at the Eurodollar Rate plus the Applicable
Margin per annum.
The Applicable Margin shall be determined based upon
the Borrower's long term senior unsecured debt ratings
from time to time as established by Standard & Poor's
(the "S&P Rating") and Moody's Investors Services (the
"Moody's Rating") as set forth below:
Eurodollar ABR
Applicable Applicable
Level Rating Margin Margin
- ----- ------ ------ ------
1 BBB+ or higher 0.625% 0%
or Baa1 or
higher
2 BBB or Baa2 0.750% 0%
3 BBB- or Baa3 0.875% 0%
4 BB+ or Ba1 1.375% 0.375%
5 BB or lower or 2.00% 1.00%
Ba2 or lower
The Administrative Agent shall determine the
Applicable Margin from time to time in accordance with
the above table and notify the Borrower and the
Lenders of such determination from time to time. In
the event the S&P Rating and the Moody's Rating
correspond to different levels on the above table
resulting in different Applicable Margin
determinations, the following provisions shall apply.
In the event the S&P Rating and the Moody's Rating
differ by one level, the Applicable Margin shall be
that corresponding to the higher Rating. In the event
the S&P Rating and the Moody's Rating differ by two
levels the Applicable Margin shall be that
corresponding to that level which is in between the
two applicable levels. In the event the S&P Rating and
the Moody's Rating differ by three levels, the
Applicable Margin shall be that corresponding to the
level immediately below the higher of such Ratings. In
the event the S&P Rating and the Moody's Rating differ
by four levels (i.e. a ratings split between level 1
and level 5), the Applicable Margin shall be that
corresponding to level 4.
In the event only one rating agency exists or
continues rating the Borrower's long term senior
unsecured debt, such agency's rating shall be used for
purposes of the above table. In the event: (i) neither
agency exists or continues rating the Borrower's long
term senior unsecured debt or (ii) the Borrower no
longer has any outstanding long term senior unsecured
debt to be rated, the Applicable Margin for the first
90 days after such occurrence shall be the Applicable
Margin in effect as determined using the above
immediately prior to such occurrence. During such
90-day period, the Administrative Agent and the
Borrower shall negotiate in good faith to agree upon a
new pricing grid or other appropriate pricing terms.
Any such new grid or pricing terms shall be approved
by the Requisite Lenders. In the event the
Administrative Agent, the Borrower and the Requisite
Lenders cannot agree upon such new pricing grid or
pricing terms by the end of such 90-day period, the
Applicable Margin shall be that corresponding to level
5 of the above table for the remainder of the term of
the Term Loan.
Any necessary adjustment in the Applicable Margin
pursuant to the terms hereof shall become effective
immediately upon any change in a rating.
A commitment fee shall be payable to the Lenders at
the rate of 0.20% per annum in respect of the period
commencing on the date of execution of the Credit
Agreement and ending on the date on which no unfunded
commitments remain in effect. The Borrower shall have
the right to terminate or reduce the amount of the
unfunded commitments at any time.
Other provisions with respect to interest rates,
funding protection, taxes and reserve requirements,
capital adequacy protection, and similar matters shall
be substantially similar to those contained in the
Existing Credit Agreement.
Interest Payments: Quarterly for loans bearing interest with reference to
the ABR, on the last day of selected interest periods
(which shall be one, two, three and six months) for
loans bearing interest with reference to the
Eurodollar Rate (and at the end of every three months,
in the case of interest periods of longer than three
months), and upon prepayment; in each case payable in
arrears and computed on a basis consistent with the
Borrower's existing Credit Agreement dated as of May
2, 1997, as amended through the date hereof (the
"Existing Credit Agreement").
Voluntary Prepayment: The Term Loan may be prepaid in whole or in part
(provided that with respect to loans bearing interest
with reference to the Eurodollar Rate prepaid other
than at the end of the applicable interest period, the
Borrower will pay customary "broken funding" costs, if
any, on terms substantially similar to those contained
in the Existing Credit Agreement).
Representations and
Warranties: Substantially similar to those contained in the
Existing Credit Agreement and, on a basis consistent
with the tenor and scope of such representations and
warranties, such additional representations and
warranties relating to the Acquisition as are
appropriate.
Covenants: Substantially similar to those contained in the
Existing Credit Agreement.
In addition, at any time when the S&P Rating is less
than BBB- and the Moody's Rating is less than Baa3,
the Borrower will be required to maintain as of the
last day of each fiscal quarter a ratio (determined on
a rolling four-quarter basis) of (a) Consolidated
EBITDA plus aircraft operating rental expense to (b)
consolidated interest expense plus aircraft operating
rental expense, of not less than 1.5 to 1.
In the event that any negative covenants contained in
the Existing Credit Agreement, as amended or replaced
(in whole or in part) from time to time, shall be more
restrictive than the negative covenants contained in
the Credit Agreement, the Credit Agreement shall
automatically be deemed to have been amended to add
such more restrictive covenants.
Events of Default: Substantially similar to those contained in the
Existing Credit Agreement.
Conditions Precedent to
Initial Funding of
Term Loan: Substantially similar to the Existing Credit
Agreement, together with the following additional
conditions (the date on which such conditions are
satisfied, the "Closing Date"):
1. Satisfactory Documentation. The Credit Agreement
and related loan documents shall be prepared by
counsel to the Administrative Agent and shall be
consistent with the terms hereof and of the
Commitment Letter.
2. Tender Offer. Concurrently with the initial
borrowing under the Term Loan, the Borrower
shall acquire, pursuant to a tender offer (the
"Tender Offer"), at least a majority of the
outstanding common stock of the Target.
3. No Material Adverse Change. (a) Since December
31, 1998, there shall not have been any material
adverse change in the condition or operations of
the Buyer and its subsidiaries, considered as a
whole (on a pro forma basis assuming
consummation of the Acquisition), and (b) no
information submitted to the Arranger or the
Administrative Agent shall prove, when
considered as a whole with all such information
so submitted, to have been inaccurate,
incomplete or misleading in any material
respect.
4. Certain Financial Statements. The Administrative
Agent shall have received a pro forma balance
sheet for the Borrower and its subsidiaries and
the Target and its subsidiaries giving effect to
the Acquisition as of the quarterly date
immediately preceding the Closing Date and pro
forma income and cash flow statements for the
Borrower and its subsidiaries and the Target and
its subsidiaries for the twelve month period
ending on the quarterly date immediately
preceding the Closing Date. Such pro forma
financial statements shall reflect the expenses
and financing necessary to consummate the
Acquisition.
5. Consents and Approvals. All material necessary
governmental and third party consents and
approvals in connection with the Term Loan, the
Tender Offer and the other transactions
contemplated by the Term Loan shall have been
obtained and remain in effect, and all
applicable waiting periods shall have expired
without any action being taken by any applicable
authority, except to the extent the failure to
obtain any such consent or approval would not
have a material adverse effect on the Buyer,
Target and their respective subsidiaries
considered as a whole (on a pro forma basis,
assuming consummation of the Acquisition).
6. Litigation, etc. There shall exist no action,
suit, investigation, litigation or proceeding
pending or threatened in any court or before any
arbitrator or governmental instrumentality (a)
with respect to which there is a reasonable
possibility of an adverse decision that would be
reasonably likely to have a material adverse
effect on the condition or operations of the
Borrower, the Target, and their respective
subsidiaries, considered as a whole (on a pro
forma basis, assuming consummation of the
Acquisition) or (b) that purports to affect the
validity or binding effect of the Term Loan.
7. Payments of Amounts Due. All fees and other
compensation contemplated hereby payable to the
Arranger, the Administrative Agent or the
Lenders shall have been paid to the extent due.
8. Customary Closing Documents. All documents
required to be delivered under the definitive
financing documents, (including customary legal
opinions), corporate records and documents from
public officials and officers' certificates,
shall have been delivered to the reasonable
satisfaction of the Administrative Agent.
Conditions Precedent to
Second Funding of Term
Loan: Consummation of the Merger (with the aggregate cash
consideration paid for the overall Acquisition not
exceeding $750,000,000), together with customary
additional conditions substantially similar to those
applicable to ongoing borrowings under the Existing
Credit Agreement, including absence of any default and
reaffirmation of representations and warranties,
except representations and warranties relating to
material adverse change and certain other matters.
Assignments and
Participations: The Lenders may assign all or, in an amount of not
less than $5 million, any part of their share of the
Term Loan to affiliates or one or more banks,
financial institutions or other entities that are
eligible assignees (to be described in the Credit
Agreement) and are acceptable to the Administrative
Agent and the Borrower, such consents not to be
unreasonably withheld, and upon such assignment, such
affiliate, bank, financial institution or entity shall
become a Lender for all purposes of the loan
documentation; provided that assignments made to
affiliates and other Lenders shall not be subject to
the $5 million minimum assignment requirement. In
connection with each assignment the Administrative
Agent shall be paid by the assigning Lender an
assignment fee of $3,500. The Lenders will have the
right to sell participations, subject only to
customary limitations on voting rights, in their share
of the Term Loan.
Requisite Lenders: Lenders holding 51% of the Term Loan, except
that with respect to certain matters relating to the
interest rates, maturity, the definition of Requisite
Lenders and certain other matters (substantially
similar to those set forth in the Existing Credit
Agreement), Requisite Lenders will be defined as
Lenders holding 100% of the Term Loan.
Indemnity: Substantially similar to the Existing Credit
Agreement.
Governing Law
and Jurisdiction: The Borrower will submit to the non-exclusive
jurisdiction and venue of the federal
and state courts of the State of New York and
(together with the Arranger, the Administrative Agent
and the Lenders) shall waive any right to trial by
jury. New York law shall govern the Credit Agreement
and related loan documents.
