EXHIBIT 10.6.2
FIRST AMENDMENT AND CONSENT
FIRST AMENDMENT AND CONSENT (this "AMENDMENT"), dated as of November 30,
2004, among ATLAS FREIGHTER LEASING III, INC., a Delaware corpration (the
"BORROWER"), the lenders from time to time party to the Credit Agreement (each a
"LENDER" and, collectively, the "LENDERS"), and DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Administrative Agent (in such capacity, the "ADMINISTRATIVE
AGENT"). Unless otherwise defined herein, all capitalized terms used herein and
defined in the Credit Agreement referred to below are used herein as therein
defined.
W-I-T-N-E-S-S-E-T-H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into an Amended and Restated Credit Agreement, dated as of July 27, 2004
(the "CREDIT AGREEMENT"); and
WHEREAS, subject to the terms and conditions set forth below, the parties
hereto wish to amend certain provisions of the Credit Agreement as provided
herein;
NOW, THEREFORE, it is agreed;
A. AMENDMENTS TO THE CREDIT AGREEMENT
1. The definition of "Exit Facility" appearing in Section 1.1 of the
Credit Agreement is hereby amended deleting such definition in its entirety and
inserting the following text in lieu thereof:
""EXIT FACILITY" means the primary senior revolving credit facility or
facilities of the Company and/or Polar Air, whether now existing or
hereafter arising, which allow the Company and/or Polar Air to borrow and
reborrow amounts (or have letters of credit issued for its account) up to
a borrowing base determined by the lenders thereunder, as same may be
amended, modified, supplemented, refinanced or replaced from time to
time."
B. CONSENT
1. The Lenders hereby consent to amend the Leases as provided in the
amendment to the Leases attached hereto as Exhibit A.
C. MISCELLANEOUS PROVISIONS
1. In order to induce the Lenders to enter into this Amendment, the
Borrower herby represents and warts to each of the Lenders that (i) all of the
representations and warranties contained in the Credit Agreement and in the
other Loan Documents are true and correct in all material respects on and as of
the First Amendment Effective Date (as defined below), both before and after
giving effect to this Amendment (unless such representations and warranties
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date), and (ii) there
exists no Default or Event of Default on the First Amendment Effective Date,
both before and after giving effect to this Amendment.
2. This Amendment is limited as specified and shall not constitute an
amendment, modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Loan Document.
3. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
5. This Amendment shall become effective on the date (the "FIRST AMENDMENT
EFFECTIVE DATE") when the Borrower and the Required Lenders shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of telecopier) the same to the Administrative Agent.
6. From and after the First Amendment Effective Date, all references in
the Credit Agreement and in the other Loan Documents to the Credit Agreement
shall be deemed to be referenced to the Credit Agreement as modified hereby.
* * *
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered as of the date first above written.
ATLAS FREIGHTER LEASING III, INC.
By: /s/ William C. Bradley
------------------------------
Name: William C. Bradley
Title: Treasurer & Secretary
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Administrative Agent
By: /s/ Mark B. Cohen
------------------------------
Name: Mark B. Cohen
Title: Managing Director
Head of [ILLEGIBLE]
CREDIT SUISSE FIRST BOSTON
By: /s/ Gil Golan
------------------------------
Name: Gil Golan
Title: Assistant Vice President
By: /s/ Joseph Brosnan
------------------------------
Name: Joseph Brosnan
Title: Vice President
[Signature Page to the First Amendment and Consent
to the Amended and Restated Credit Agreement]
APEX (IDM) CDOI, LTD
ELC (CAYMAN) LTD, CDO Series 1999-I
ELC (CAYMAN) LTD, 1999-II
ELC (CAYMAN) LTD, 1999-III
ELC (CAYMAN) LTD, 2000-I
By: /s/ [ILLEGIBLE]
-------------------------------
Title: Managing Director
BABSON CAPITAL
MANAGEMENT LLC, IN ITS
CAPACITY AS COLLATERAL
MANAGER, PORTFOLIO MANAGER
OR INVESTMENT MANAGER
[Signature Page to the First Amendment and Consent
to the Amended and Restated Credit Agreement]
TRYON CLO LTD 2000-I
SUFFIELD CLO, LIMITED
By: /s/ [ILLEGIBLE]
-------------------------------
Title: MANAGING DIRECTOR
BABSON CAPITAL MANAGEMENT LLC,
AS COLLATERAL MANAGER
[Signature Page to the First Amendment and Consent
to the Amended and Restated Credit Agreement]
GOLDMAN SACHS CREDIT PARTNERS L.P.,
By: /s/ [ILLEGIBLE]
-------------------------------
Title: Managing Director
[Signature Page to the First Amendment and Consent
to the Amended and Restated Credit Agreement]
CANPARTNERS INVESTMENTS IV, LLC
By: CANPARTNERS INVESTMENTS IV, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
By: /s/ R. Christian B. Evensen
--------------------------------------
R. Christian B. Evensen
Managing Director
[Signature Page to the First Amendment and Consent
to the Amended and Restated Credit Agreement]
RZB Finance LLC
By: /s/ Christoph Hoedl /s/ Elisabeth Hirst
--------------------------------------------
Title: Christoph Hoedl Elisabeth Hirst
Vice President AVP
[Signature Page to the First Amendment and Consent
to the Amended and Restated Credit Agreement]
Sankaty High Yield Partners II, L.P.
By: /s/ Jeffrey Hawkins
---------------------------------
Title: JEFFREY HAWKINS
SENIOR VICE PRESIDENT
[Signature Page to the First Amendment and Consent
to the Amended and Restated Credit Agreement]
Sankaty High Yield Partners III, L.P.
By: /s/ Jeffrey Hawkins
---------------------------------
Title: JEFFREY HAWKINS
SENIOR VICE PRESIDENT
[Signature Page to the First Amendment and Consent
to the Amended and Restated Credit Agreement]
Sankaty Advisors, LLC as Collateral Manager for
Prospect Funding I, LLC, as Term Lender
By: /s/ Jeffrey Hawkins
-------------------------------------------
Title: JEFFREY HAWKINS
SENIOR VICE PRESIDENT
[Signature Page to the First Amendment and Consent
to the Amended and Restated Credit Agreement]
Sankaty High Yield [ILLEGIBLE] Partners, L.P.
By: /s/ Jeffrey Hawkins
---------------------------------------------
Title: JEFFREY HAWKINS
SENIOR VICE PRESIDENT
[Signature Page to the First Amendment and Consent
to the Amended and Restated Credit Agreement]
Sankaty Credit Opportunities, L.P.
By: /s/ Jeffrey Hawkins
------------------------------
Title: JEFFREY HAWKINS
SENIOR VICE PRESIDENT
[Signature Page to the First Amendment and Consent
to the Amended and Restated Credit Agreement]
EXHIBIT A
[Attached.]
EXECUTION COPY
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED LEASE AGREEMENT(1)
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED LEASE AGREEMENT (this
"AMENDMENT"), dated as of November 30, 2004, between ATLAS FREIGHTER LEASING
III, INC., a Delaware corporation ("LESSOR"), ATLAS AIR, INC., a Delaware
corporation ("LESSEE") and accepted and agreed to by ATLAS AIR WORLDWIDE
HOLDINGS, INC. ("HOLDINGS") and by DEUTSCHE BANK TRUST COMPANY AMERICAS, as
administrative agent under the Credit Agreement (in such capacity, the "AGENT").
Unless otherwise defined herein, all capitalized terms used herein and defined
in the Lease referred to below are used herein as therein defined.
W-I-T-N-E-S-S-E-T-H:
WHEREAS, the Lessor, the lenders from time to time party thereto (each a
"LENDER" and, collectively, the "LENDERS") and the Agent have entered into an
Amended and Restated Credit Agreement, dated as of July 27, 2004 (the "CREDIT
AGREEMENT");
WHEREAS, Lessor and Lessee are party to the Amended and Restated Lease
Agreement, dated as of July 27, 2004 (the "LEASE"), which Lease is further
described on Annex A attached hereto; and
WHEREAS, subject to the terms and conditions set forth below, the parties
hereto wish to amend certain provisions of the Lease as provided herein;
NOW, THEREFORE, it is agreed;
A. AMENDMENTS TO THE LEASE
1. The definition of "ACMI Contract" appearing in Section 1 of the Lease
is hereby amended by deleting such definition in its entirety and inserting the
following text in lieu thereof:
""ACMI CONTRACT" means (i) any contract entered into by the Lessee
pursuant to which Lessee furnishes the aircraft, crew, maintenance and
insurance and customers bear all
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(1) This Amendment has been executed in several counterparts. To the extent,
if any, that this Amendment constitutes chattel paper (as such term is
defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction), no security interest in this Amendment may be created
through the transfer or possession of any counterpart other than the
original. The counterpart to be deemed the original shall be the
counterpart that contains the receipt therefor executed by Deutsche Bank
Trust Company Americas, as Administrative Agent, on the signature page
thereof and no security interest in this Amendment may be created through
the transfer of any counterpart other than said original counterpart.
other operating expenses, (ii) any similar contract in which the customer
provides the flight crew, all in accordance with the Lessee's historical
practices and (iii) any wet lease or service contract whereby the Lessee
agrees to furnish an aircraft to a third party pursuant to which the
aircraft shall at all times be in operational control of the Lessee."
2. Section 1 of the Lease is hereby amended by inserting the following new
definition in the appropriate alphabetical order:
""BLADE AND DISK CAPITAL EXPENDITURES" means Consolidated Capital
Expenditures for under platform cracking, including blade and disk
replacement, required for CF6-80C2 engines. "
3. The definition of "Exit Facility" appearing in Section 1 of the Lease
is hereby amended by deleting such definition in its entirety and inserting the
following text in lieu thereof:
""EXIT FACILTY" means the primary senior revolving credit facility or
facilities of the Lessee and/or Polar Air, whether now existing or
hereafter arising, which allow the Lessee and/or Polar Air to borrow and
reborrow amounts (or have letter of credit issued for its account) up to a
borrowing base determined by the lenders thereunder, as same may be
amended, modified, supplemented, refinanced or replaced from time to
time."
4. The definition of "Maximum Capital Expenditure Amount" appearing in
Section 1 of the Lease is hereby amended by deleting such definition in its
entirety and inserting the following text in lieu thereof:
""MAXIMUM CAPITAL EXPENDITURE AMOUNT" means for any Fiscal Year,
$25,000,000."
5. Section 7(a)(8) of the Lease is hereby amended by deleting the text
"the Lessee" appearing therein and inserting the text "Holdings and its
Subsidiaries" in lieu thereof.
6. Section 7(b)C. of the Lease is hereby amended by inserting the text
"and the Exit Facility" immediately following the text "Credit Agreement"
appearing in the first sentence thereof.
7. Section 7(d)(4) of the Lease is hereby amended by deleting such section
in its entirety and inserting the following text in lieu thereof:
"(6) Holdings and its Subsidiaries may become and remain liable with
respect to Contingent Obligations arising under the Exit Facility;"
8. Section 7(g)(7) of the Lease is hereby amended by deleting such section
in its entirety and inserting the following text in lieu thereof:
"(7) Holdings and its Subsidiaries may make (V) Consolidated Capita
Expenditures not in excess of the Maximum Capital Expenditure Amount
during any Fiscal Year, (W) Consolidated Capital Expenditures required to
retrofit airplanes in order to conform to FAA regulations in an amount not
to exceed $7,000,000 in the aggregate, (X) Consolidated Capital
Expenditures constituting the reinvestment of proceeds of Asset
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Sales not required to repay the Loans pursuant to subsection 2.4B(ii)(a)
of the Amended Aircraft Credit Facility, (y) Blade and Disk Capital
Expenditures in an amount not to exceed $15,000,000 in the aggregate and
(z) Consolidated Capital Expenditures required to satisfy Back-To-Birth
Traceability Issues; PROVIDED that up to 50% of any amount of such
Consolidated Capital Expenditures permitted pursuant to clause (V) of this
subsection (7), but not made, in any Fiscal Year may be carried forward to
and made during the immediately succeeding Fiscal Year (but no amount once
carried forward to the next Fiscal Year may be carried forward to any
Fiscal Year thereafter);"
9. Section 7(m) of the Lease is hereby amended by inserting the following
new sentence at the end thereof:
"Notwithstanding anything to the contrary contained in clause (1) and (2)
above in this paragraph, Holdings and its Subsidiaries may pledge shares
of capital stock of any of its Subsidiaries (including Holdings and such
Subsidiary, but excluding the capital stock of Lessor) to secure the Exit
Facility or their Contingent Obligations arising thereunder."
B. MISCELLANEOUS PROVISIONS
1. In order to induce the Agent to enter into this Amendment, Holdings
hereby represents and warrants to each of the Lender that (i) all of the
representations and warranties contained in the Lease are true and correct in
all material respects on and as of the First Amendment Effective Date, both
before and after giving effect to this Amendment (unless such representations
and warranties relate to a specific earlier date, in which case such
representations and warranties shall be true and correct as of such earlier
date), and (ii) there exists no Default or Event of Default on the First
Amendment Effective Date, both before and after giving effect to this Amendment.
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Lease.
3. This Amendment may be execute in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
executed by all the pares hereto shall be lodged with Holdings and the Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
5. This Amendment shall become effective on the date (the "FIRST AMENDMENT
EFFECTIVE DATE") when Holdings, Lessor, Lessee and the Agent shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of telecopier) the same to the Agent, thereafter a
counterpart of this Amendment will be filed for recordation with the Federal
Aviation Administration Civil Aircraft Registry.
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6. From and after the First Amendment Effective Date, all references in
the Lease and in the other Loan Documents to the Lease shall be deemed to be
referenced to the Lease as modified hereby.
* * *
-4-
EXECUTION COPY
IN WITNESSS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered as of the date first above written.
ATLAS FREIGHTER LEASING III, INC.
By:
------------------------------
Name:
Title:
ATLAS AIR, INC.
By:
------------------------------
Name:
Title:
Accepted and Agreed:
ATLAS AIR WORLDWIDE HOLDINGS, INC.
By:
------------------------------
Name:
Title:
Accepted and Agreed:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Agent
By:
------------------------------
Name:
Title:
ANNEX A
[add description of lease and aircraft engines covered thereby]