EXHIBIT 10.6.8
CONSENT AND LIMITED WAIVER
CONSENT AND LIMITED WAIVER (this "WAIVER"), dated as of July 27, 2005,
among ATLAS FREIGHTER LEASING III, INC., a Delaware corporation (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.
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into an Amended and Restated Credit Agreement, dated as of July 27, 2004
(as amended, supplemented or otherwise modified, the "CREDIT AGREEMENT"); and
WHEREAS, subject to the terms and conditions set forth below, the parties
hereto wish to provide a waiver in respect of Section 6.5 of the Credit
Agreement, and of certain provisions of the Leases, as provided herein;
NOW, THEREFORE, it is agreed;
A. LIMITED WAIVER TO THE CREDIT AGREEMENT
1. Notwithstanding anything in Section 6.5 of the Credit Agreement to the
contrary, effective on the Waiver Effective Date, the Lenders waive the
limitation on Holdings and its Subsidiaries to, directly or indirectly,
repurchase (the "REPURCHASE") from the employees and directors (the "RSU
RECIPIENTS") of Holdings and its Subsidiaries that number of shares of Holdings'
Common Stock necessary for Holdings to pay to such RSU Recipients an amount
equal to all withholding taxes (including, without limitation, state, federal,
local and FICA (if applicable)) imposed on such RSU Recipients in connection
with the issuance by Holdings of up to 250,000 restricted share units to such
RSU Recipients pursuant to Holdings' 2004 Long Term Incentive and Share Award
Plan; PROVIDED that, before and after giving effect to such Repurchase, Holdings
will be in compliance on a Pro Forma Basis with the covenant set forth in
subsection 7(f)(2) of each of the Leases; and PROVIDED FURTHER that such
Repurchase shall be excluded from the calculation of the $1,000,000 limit
contained in Section 7(e)(2) of each of the Leases.
B. CONSENT
1. The Lenders hereby consent to the omnibus limited waiver in respect of
the Leases in the form attached hereto as Exhibit A.
C. MISCELLANEOUS PROVISIONS
1. In order to induce the Lenders to enter into this Waiver, the Borrower
hereby represents and warrants 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 Waiver Effective Date (as defined below), both before and after giving
effect to this Waiver (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 Waiver Effective Date, both before and after giving
effect to this Waiver.
2. This Waiver 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 Waiver 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 WAIVER 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 Waiver shall become effective on the date (the "WAIVER 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 Waiver 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.
* * *
-2-
IN WITNESS WHEREOF, the undersigned have caused this Waiver to be duly
executed and delivered as of the date first above written.
ATLAS FREIGHER LEASING III, INC.
By: /s/ William C. Bradley
-----------------------------
Name: William C. Bradley
Title: Treasurer & Secretary
DEUTSCHE BANK TRUST COMPANY
AMERICAS, Individually and as Administrative
Agent
By: /s/ David J. Bell
------------------------
Name: David J. Bell
Title: Managing Director
By: /s/ Robert M. Wood
-------------------------
Name: Robert M. Wood, Jr
Title: Director
ANCHORAGE CAPITAL MASTER OFFSHORE, LTD:
By: /s/ Kevin Ulrich
-------------------
Name: Kevin Ulrich
Title: Director
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
NAME OF LENDER:
---------------------------------
APEX (IDM) CDO I, LTD.
By: Babson Capital Management LLC
as Collateral Manager
By: /s/ Russell D. Morrison
--------------------------
Name: Russell D. Morrison
Title: Managing Director
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
NAME OF LENDER:
---------------------------------
ELC (CAYMAN) LTD. CDO SERIES 1999-I
By: Babson Capital Management LLC
as Collateral Manager
By: /s/ Russell D. Morrison
--------------------------
Name: Russell D. Morrison
Title: Managing Director
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
` NAME OF LENDER:
FERNWOOD RESTRUCTURINGS LIMITED
By: /s/ Robert Gaviglio
----------------------
Name: Robert Gaviglio
Title: VP
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
NAME OF LENDER:
FERNWOOD FOUNDATION FUND LLC
By: /s/ Robert Gaviglio
----------------------
Name: Robert Gaviglio
Title: VP
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
NAME OF LENDER:
FERNWOOD ASSOCIATES LLC
By: /s/ Robert Gaviglio
----------------------
Name: Robert Gaviglio
Title: VP
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
GOLDMAN SACHS CREDIT PARTNERS L.P.:
-----------------------------------
By: /s/ Pedro Ramirez
---------------------------
Name: Pedro Ramirez
Title: Authorized Signatory
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
NAME OF LENDER:
DiMaio Ahmad Capital LLC as advisor to
Lispenard Street Credit (Master) Ltd.
By: /s/ Nasser Ahmad
------------------------
Name: Nasser Ahmad
Title: Managing Director
Signature Page to the Consent and Limited
Waiver to the AFL III Amended and Restated Credit Agreement
NAME OF LENDER:
Restoration Holdings Ltd.
By: /s/ Pamela M. Lawrence
-------------------------
Name: Pamela M. Lawrence
Title: Director
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
NAME OF LENDER:
RZB Finance LLC
By: /s/ Christoph Hoedl
---------------------------
Name: Christoph Hoedl
Title: Group Vice President
/s/ Dan Dobrjanskyj
DAN DOBRJANSKYJ
VICE PRESIDENT
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
-------------------------------------
Sankaty High Yield Partners III, L.P.
-------------------------------------
By: /s/ Kristin W. Mugford
-------------------------
Name: KRISTIN W. MUGFORD
Title: MANAGING DIRECTOR
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
-------------------------------------
Sankaty High Yield Partners II, L.P.
By: /s/ Kristin W. Mugford
-------------------------
Name: KRISTIN W. MUGFORD
Title: MANAGING DIRECTOR
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
----------------------------------------
Sankaty High Yield Asset Partners, L.P.
----------------------------------------
By: /s/ Kristin W. Mugford
-----------------------------
Name: KRISTIN W. MUGFORD
Title: MANAGING DIRECTOR
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
----------------------------------------
Sankaty Advisors, LLC as Collateral
Manager for Prospect Funding I,
LLC as Term Lender
By: /s/ Kristin W. Mugford
-----------------------------
Name: KRISTIN W. MUGFORD
Title: MANAGING DIRECTOR
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
NAME OF LENDER:
SOL Loan Funding LLC, for itself or as
agent for SOL2 Loan Funding LLC.
--------------------------------------
By: /s/ Dominic Blea
-----------------------------
Name: DOMINIC BLEA
Title: AS ATTORNEY-IN-FACT
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
NAME OF LENDER:
SUFFIELD CLO, LIMITED
By: Babson Capital Management LLC
as Collateral Manager
----------------------------------
By: /s/ Russell D. Morrison
-----------------------------
Name: Russell D. Morrison
Title: Managing Director
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
NAME OF LENDER:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Dale L. Welke
-----------------------------
Name: Dale L. Welke
Title: Vice President
[Signature Page to the Consent and Limited
Waiver to the Amended and Restated Credit Agreement]
OMNIBUS LIMITED WAIVER(1)
OMNIBUS LIMITED WAIVER (this "WAIVER"), dated as of July 27, 2005, among
ATLAS AIR WORLDWIDE HOLDINGS, INC. ("HOLDINGS"), ATLAS FREIGHTER LEASING III,
INC., a Delaware corporation ("LESSOR"), ATLAS AIR, INC., a Delaware corporation
("LESSEE") and 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 Leases
referred to below are used herein as therein defined.
WITNESSETH:
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 (as amended,
supplemented or otherwise modified, the "CREDIT AGREEMENT");
WHEREAS, Lessor and Lessee are party to fourteen Amended and Restated
Lease Agreements, each dated as of July 27, 2004 (each a "LEASE" and,
collectively, the "LEASES"), which Leases are further described on Annex A
attached hereto; and
WHEREAS, subject to the terms and conditions set forth below, the parties
hereto wish to provide a waiver in respect of Section 7(e) of each of the Leases
as provided herein;
NOW, THEREFORE, it is agreed;
A. LIMITED WAIVER TO THE LEASES
1. Notwithstanding anything in Section 7(e) of the Credit Agreement to the
contrary, effective on the Waiver Effective Date, the Lenders waive the
limitation on Holdings and its Subsidiaries to, directly or indirectly,
repurchase (the "REPURCHASE") from the employees and directors (the "RSU
RECIPIENTS") of Holdings and its Subsidiaries that number of shares of Holdings'
Common Stock necessary for Holdings to pay to such RSU Recipients an amount
equal to all withholding taxes (including, without limitation, state, federal,
local and FICA (if applicable)) imposed on such RSU Recipients in connection
with the issuance by Holdings of up
- ----------
(1) This Waiver to the Amended and Restated Lease Agreement has been executed
in several counterparts. To the extent, if any, that this Waiver to the
Amended and Restated Lease Agreement 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 Waiver to the
Amended and Restated Lease Agreement 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 Waiver to the Amended and Restated Lease Agreement may be
created through the transfer of any counterpart other than said original
counterpart.
to 250,000 restricted share units to such RSU Recipients pursuant to Holdings'
2004 Long Term Incentive and Share Award Plan; PROVIDED that, before and after
giving effect to such Repurchase, Holdings will be in compliance on a Pro Forma
Basis with the covenant set forth in subsection 7(f)(2) of each of the Leases;
and PROVIDED FURTHER that such Repurchase shall be excluded from the calculation
of the $1,000,000 limit contained in Section 7(e)(2) of each of the Leases.
B. MISCELLANEOUS PROVISIONS
1. In order to induce the Agent to enter into this Waiver, Holdings hereby
represents and warrants to each of the Lenders that (i) all of the
representations and warranties contained in the Leases are true and correct in
all material respects on and as of the Waiver Effective Date, both before and
after giving effect to this Waiver (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 Waiver Effective Date, both before
and after giving effect to this Amendment.
2. This Waiver is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Leases.
3. This Waiver 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 WAIVER 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 Waiver shall become effective on the date (the "WAIVER 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.
6. From and after the Waiver Effective Date, all references in the Leases
and in the other Loan Documents to the Leases shall be deemed to be referenced
to the Leases as modified hereby.
* * *
-2-
IN WITNESS WHEREOF, the undersigned have caused this Waiver 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
ATLAS AIR, INC.
BY: /s/ Dorinda Pannozzo
-----------------------------
Name: Dorinda Pannozzo
Title: Assistant Treasurer
Accepted and Agreed:
ATLAS AIR WORLDWIDE HOLDINGS, INC.
By: /s/ Jeffrey H. Erickson
-----------------------------
Name: JEFFREY H. ERICKSON
Title: PRESIDENT & CEO
Accepted and Agreed:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Agent
By: /s/ David J. Bell
-----------------------------
Name: David J. Bell
Title: Managing Director
By: /s/ Robert M. Wood
-----------------------------
Name: Robert M. Wood, Jr.
Title: Director