EXHIBIT 10.6.5
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 (ii) 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 FACILITY" 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 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."
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 Capital
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 Loan 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 Lenders 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 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 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.
* * *
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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
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Name: William C. Bradley
Title: Treasurer & Secretary
Lease Amendment
(N505MC)
ATLAS AIR, INC.
By: /s/ Dorinda Pannozzo
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Name: Dorinda Pannozzo
Title: Assistant Treasurer
Lease Amendment
(N505MC)
Accepted and Agreed:
ATLAS AIR WORLDWIDE HOLDINGS, INC.
By: /s/ T. Wakelee Smith
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Name: T. Wakelee Smith
Title: Senior Vice President &
Chief Operating Officer
Lease Amendment
(N505MC)
Accepted and Agreed:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Agent
By: /s/ David J Bell
------------------------------
Name: David J Bell
Title: Managing Director
Lease Amendment
(N505MC)
Annex A
1. BOEING 747-2D3B AIRCRAFT WITH SERIAL NUMBER 21251 AND UNITED STATES
REGISTRATION NUMBER N505MC AND FOUR GENERAL ELECTRIC MODEL CF6-50E2
ENGINES WITH SERIAL NUMBERS 517597, 530388, 530389 AND 517599
LEASE:
Lease Agreement (N505MC) dated as of April 25, 2000 between Atlas
Freighter Leasing III, Inc., as lessor, and Atlas Air, Inc., as lessee, with
Lease Supplement No. 1 dated April 25, 2000 attached thereto, which was recorded
by the FAA as one instrument on May 24, 2000 and assigned Conveyance No.
DD018944,
as supplemented by Lease Supplement No. 2 dated as of November 13, 2000,
which was recorded by the FAA on December 20, 2000 and assigned Conveyance No.
SS016139,
as amended by Amendment No. 1 to Lease Agreement dated as of October 15,
2001, which was recorded by the FAA on January 11, 2002 and assigned Conveyance
No. SSO18007,
as amended by Amendment No. 2 to Lease Agreement dated as of October 30,
2001, which was recorded by the FAA on January 9, 2002 and assigned Conveyance
No. SS018001,
as amended by Amendment No. 3 to Lease Agreement dated as of December 14,
2001, which was recorded by the FAA on March 20, 2002 and assigned Conveyance
No. TT016420,
as amended by Amendment No. 4 to Aircraft Lease Agreement dated as of June
14, 2002 which was recorded by the FAA on August 21,2002 and assigned Conveyance
No. YY034495,
as amended by Amendment No. 5 to Lease Agreement dated as of August 14,
2002, which was recorded by the FAA on March 4, 2003 and assigned Conveyance No.
GG029430,
as amended by Amendment No. 6 to Lease Agreement dated as of December 31,
2002, which was recorded by the FAA on March 4, 2003 and assigned Conveyance No.
GG029431, and
as amended and restated by Amended and Restated Lease Agreement (N505MC)
dated as of July 27, 2004, with Lease Supplement No.1 dated July 27, 2004
attached thereto, which was recorded by the FAA on August 24, 2004 and assigned
Conveyance No. NN027685.
Schedule to Exhibit 10.6.5
The agreements listed below are substantially identical to this exhibit and are
not being filed separately as exhibits pursuant to instruction 2 to Regulation
S-K, Item 601.
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REGISTRATION MANUFACTURER'S SERIAL LESSEE LESSOR AGREEMENT
NUMBER NUMBER(S)
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N509MC 21221 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N509MC)
dated as of November 30,
2004
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N512MC 21220 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N512MC)
dated as of November 30,
2004
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N517MC 23300 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N517MC)
dated as of November 30,
2004
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N522MC 21783 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N522MC)
dated as of November 30,
2004
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N523MC 21782 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N523MC)
dated as of November 30,
2004
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N524MC 21784 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N524MC)
dated as of November 30,
2004
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N526MC 22337 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N526MC)
dated as of November 30,
2004
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N527MC 22471 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N527MC)
dated as of November 30,
2004
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N528MC 22472 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N528MC)
dated as of November 30,
2004
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N534MC 21832 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N534MC)
dated as of November 30,
2004
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N808MC 21048 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N808MC)
dated as of November 30,
2004
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N809MC 20887 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
III and Restated Lease (N809MC)
dated as of November 30,
2004
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CF6-50E2 Spare 530168; 517530; Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
Engines 517790; 517602; III and Restated Lease
517547; 517,538; (CF6-50E2 Spare Engines)
517,539; 455167; 530255 dated as of November 30,
2004
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CF6-80C2 BSF Spare 704,699; 704860; 704918 Atlas Air, Inc. Atlas Freighter Leasing Amendment No. 1 to Amended
Engines III and Restated Lease
(CF6-80C2 BSF Spare
Engines) dated as
of November 30, 2004
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