Exhibit 10.3.3
EXECUTION VERSION
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT,
CONSENT AND WAIVER
THIS AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT, CONSENT AND WAIVER
(this "AMENDMENT NO. 2"), dated as of June 27, 2005, among ATLAS AIR, INC., a
Delaware corporation ("ATLAS AIR"), POLAR AIR CARGO, INC., a California
corporation ("POLAR", and together with Atlas Air, each individually, a
"BORROWER" and collectively, "BORROWERS"), ATLAS AIR WORLDWIDE HOLDINGS, INC., a
Delaware corporation ("ATLAS HOLDINGS"), and AIRLINE ACQUISITION CORP I, a
Delaware corporation (together with Atlas Holdings, each individually, a
"GUARANTOR" and collectively, "GUARANTORS"), WACHOVIA BANK, NATIONAL
ASSOCIATION, successor by merger to Congress Financial Corporation, a national
banking association, in its capacity as agent acting for and on behalf of the
parties to the Loan Agreement (as hereinafter defined) as lenders (in such
capacity, "AGENT"), and the parties to the Loan Agreement as lenders (each
individually a "LENDER" and collectively, "LENDERS"). Unless otherwise defined
herein, all capitalized terms used herein and defined in the Loan Agreement
referred to below are used herein as therein defined.
W I T N E S S E T H:
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into
financing arrangements pursuant to which Lenders (or Agent on behalf of Lenders)
have made and may make loans and advances and provide other financial
accommodations to Borrowers as set forth in the Loan and Security Agreement,
dated November 30, 2004, by and among Agent, Lenders, Borrowers and Guarantors
as amended hereby (as the same may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, the "LOAN AGREEMENT", and
together with all agreements, documents and instruments at any time executed
and/or delivered in connection therewith or related thereto, as from time to
time amended, modified, supplemented, extended, renewed, restated, or replaced,
collectively, the "FINANCING AGREEMENTS");
WHEREAS, in connection with the Loan Agreement, Polar executed and
delivered to the Agent that certain Aircraft Engines Security Agreement dated as
of November 30, 2004 (the "POLAR SECURITY AGREEMENT"), relating to, among other
things, thirteen (13) General Electric model CF6-50E2 aircraft engines (the "GE
ENGINES") and sixteen (16) Pratt & Whitney model JT9D aircraft engines;
WHEREAS, the GE Engines are owned by Atlas Air and not Polar;
WHEREAS, the GE Engines were inadvertently listed as assets of Polar and
included on SCHEDULE I of the Polar Security Agreement;
WHEREAS, Borrowers have requested that the two (2) GE Engines bearing
manufacturer's serial numbers 517817 ("ENGINE 517817") and 530273 ("ENGINE
530273", and together with Engine 517817, the "REPLACED ENGINES") be substituted
with two (2) General
Electric model CF6-50E2 aircraft engines bearing manufacturer's serial numbers
517658 and 517598 (the "SUBSTITUTE ENGINES") in accordance with SECTION
9.7(B)(IV) of the Loan Agreement;
WHEREAS, on January 24, 2005, (i) Engine 517817, (ii) that certain Boeing
model 747-212F airframe bearing manufacturer's serial number 21048 and FAA
registration number N8O8MC, and (iii) those certain General Electric model
CF6-50E2 aircraft engines bearing manufacturer's serial numbers 517814, 517943
and 455167 were damaged in an accident (collectively, the "DAMAGED AIRCRAFT");
WHEREAS, Borrowers have requested that (i) the Agent and Polar release the
GE Engines from the lien and security interest of the Polar Security Agreement
and (ii) the Agent and Atlas Air enter into a new security agreement relating to
the GE Engines, as modified by the replacement of the Replaced Engines with the
Substitute Engines;
WHEREAS, Borrowers have requested that the Lenders waive any Default or
Event of Default that may arise under SECTION 10 of the Loan Agreement as a
result of the inadvertent inclusion by Borrower of the GE Engines under the
Polar Security Agreement rather than under a separate security agreement
delivered by Atlas Air (the "SPECIFIED DEFAULT");
WHEREAS, Borrowers have requested that the Agent and Lenders acknowledge,
consent and agree that all insurance proceeds payable under the Settlement (as
hereinafter defined) will be payable directly to Atlas Air, without joinder of
Agent or Lenders; and
WHEREAS, Borrowers have requested that Agent and Lenders agree to certain
amendments to the Loan Agreement and Agent and Lenders are willing to so agree,
subject to the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
and covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
NOW, THEREFORE, it is agreed:
A. AMENDMENTS TO LOAN AGREEMENT.
1. As used herein, the following term shall have the meaning given to them
below, and the Loan Agreement and the other Financing Agreements are hereby
amended to include, in addition and not in limitation, the following definition:
"AMENDMENT NO. 2" shall mean that certain Amendment No. 2 to Loan
and Security Agreement, Consent and Waiver dated as of June 27, 2005 by
and among Agent, Lenders, Borrowers and Guarantors, as the same now exists
or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced.
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2. The definition of "Engines" set forth in SECTION 1.76 of the Loan
Agreement is amended by deleting such definition in its entirety and replacing
and restating such definition, in its entirety, as follows:
"ENGINES" shall mean goods of a Borrower or Guarantor consisting of
aircraft engines having the equivalent of 750 or more rated take off shaft
horsepower and that are owned by a Borrower or Guarantor and used in
connection with the operation of its Aircraft, whether now owned or
hereafter acquired and wherever located; PROVIDED, HOWEVER, "Engines"
shall not mean those certain General Electric model CF6-50E2 aircraft
engines bearing manufacturer's serial numbers 517817, 517814, 517943 and
455167.
3. The definition of "Equipment" set forth in SECTION 1.78 of the Loan
Agreement is amended by deleting such definition in its entirety and replacing
and restating such definition, in its entirety, as follows:
"EQUIPMENT" shall mean, as to each Borrower and Guarantor, all of
such Borrower's and Guarantor's now owned and hereafter acquired
equipment, wherever located, including machinery, data processing and
computer equipment (whether now owned or licensed and including embedded
software), Aircraft, Engines, flight simulators, Spare Parts, vehicles,
tools, furniture, fixtures, all attachments, accessions and property now
or hereafter affixed thereto or used in connection therewith, and
substitutions and replacements thereof, wherever located; PROVIDED,
HOWEVER, "Equipment" shall not mean (i) that certain Boeing model 747-21
2F airframe bearing manufacturer's serial number 21048 and FAA
registration number N8O8MC, or (ii) those certain General Electric model
CF6-50E2 aircraft engines bearing manufacturer's serial numbers 517817,
517814, 517943 and 455167.
B. ATLAS SECURITY AGREEMENT AND PARTIAL RELEASE
1. Concurrently with the delivery of this Amendment No. 2, Atlas Air
and Agent, as Secured Party, shall duly execute and deliver that certain
Aircraft Engines Security Agreement in the form attached hereto as EXHIBIT A
covering the GE Engines, reflecting the replacement of the Replaced Engines with
the Substitute Engines (the "ATLAS SECURITY AGREEMENT"), to be filed and
recorded with the FAA as appropriate to effect the perfection of the first
priority security interest of Agent, for the benefit of the Lenders, with
respect to the Collateral subject thereto.
2. Concurrently with the delivery of this Amendment No. 2, Agent, as
Secured Party, shall duly execute and deliver that certain FAA Partial Release
in the form attached hereto as EXHIBIT B, which shall have the effect of
releasing the GE Engines from the security interest and lien of the Polar
Security Agreement (the "RELEASE").
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C. CONSENT AND WAIVER
1. The Lenders hereby acknowledge, consent and agree that all
insurance proceeds payable under the compromise and settlement (the
"SETTLEMENT") entered into by Atlas Air with its insurance carrier relating to
certain claims and casualty losses including, among other things, claims for the
damage to the Damaged Aircraft as set forth in that certain letter dated April
6, 2005 from Atlas Holdings to Willis Global Aviation, a copy of which is
attached hereto as EXHIBIT C, will be payable directly and solely to Atlas Air,
without joinder of Agent or Lenders.
2. Subject to the satisfaction of the agreements set forth herein,
and in accordance with SECTION 11.3 of the Loan Agreement, the Agent and the
Lenders hereby waive any Default or Event of Default that may arise from the
Specified Default; PROVIDED, HOWEVER, that such waiver shall be effective only
in the specific instance and for the specific purpose set forth herein and does
not allow for any other or further departure from the terms and conditions of
the Financing Agreements, which terms and conditions shall remain in full force
and effect. Without limiting the generality of the foregoing, it is understood
and agreed that nothing in this Amendment No. 2 shall be deemed a waiver of any
other Default or Event of Default whether known or unknown by the Lenders and
whether now existing or hereafter arising.
D. REPRESENTATIONS, WARRANTIES AND COVENANTS. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrowers and Guarantors to Agent and Lenders pursuant to the other
Financing Agreements, each of Borrowers and Guarantors, jointly and severally,
hereby represents, warrants and covenants with and to Agent and Lenders as
follows (which representations, warranties and covenants are continuing and
shall survive the execution and delivery hereof and shall be incorporated into
and made a part of the Financing Agreements):
1. This Amendment No. 2 has been duly authorized, executed and
delivered by all necessary corporate action on the part of each Borrower and
Guarantor which is a party hereto, and is in full force and effect as of the
date hereof, and the agreements and obligations of Borrowers and Guarantors
contained herein constitute legal, valid and binding obligations of Borrowers
and Guarantors enforceable against them in accordance with their terms.
2. All of the representations and warranties set forth in the Loan
Agreement and the other Financing Agreements, each as amended or modified as
contemplated hereby, are true and correct in all material respects on and as of
the date hereof as if made on the date hereof, except to the extent any such
representation or warranty is made as of a specified date, in which case such
representation or warranty shall have been true and correct as of such date.
3. After giving effect to the waiver set forth in SECTION C above,
no Default or Event of Default shall exist or have occurred and be continuing on
the date hereof.
4. All necessary actions and proceedings required by the Financing
Agreements in connection with this Amendment No. 2, applicable law or regulation
and the transactions contemplated thereby have been duly and validly taken in
accordance with the terms thereof, and all required consents thereto under any
agreement, document or instrument to
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which Borrowers and Guarantors are a party, and all applicable consents or
approvals of governmental authorities, have been obtained.
E. CONDITIONS PRECEDENT. The effectiveness of the amendments contained
herein shall only be effective upon the satisfaction of each of the following
conditions precedent in a manner satisfactory to Agent:
1. Agent shall have received, as of the date hereof, this Amendment
No. 2, duly authorized, executed, and delivered by the parties hereto.
2. Agent shall have received, as of the date hereof, the Atlas
Security Agreement, duly authorized, executed, and delivered by the parties
thereto.
3. Agent shall have received, as of the date hereof, a legal opinion
of Crowe and Dunlevy, P.C., FAA counsel to the Borrowers, in form and substance
satisfactory to Agent.
4. after giving effect to the waiver set forth in SECTION C above,
no Default or Event of Default shall exist or have occurred and be continuing on
the date hereof.
F. EFFECT OF THIS AMENDMENT NO. 2. This Amendment No. 2 constitutes the
entire agreement of the parties with respect to the subject matter hereof and
thereof, and supersedes all prior oral or written communications, memoranda,
proposals, negotiations, discussions, term sheets and commitments with respect
to the subject matter hereof and thereof. Except as expressly amended pursuant
hereto and except for the agreements expressly contained herein, no other
changes or modifications or waivers to the Financing Agreements are intended or
implied, and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent that any provision of the Loan Agreement or
any of the other Financing Agreements are inconsistent with the provisions of
this Amendment No. 2, the provisions of this Amendment No. 2 shall control.
G. GOVERNING LAW. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of New York (but excluding any principles of
conflicts of law or other rule of law that would cause the application of the
law of any jurisdiction other than the laws of the State of New York).
H. BINDING EFFECT. This Amendment No. 2 shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
I. COUNTERPARTS. This Amendment No. 2 may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment No, 2, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties hereto. Delivery of an executed counterpart of this
Amendment No. 2 by telecopier shall have the same force and effect as delivery
of an original executed counterpart of this Amendment No. 2. Any party
delivering an executed counterpart of this Amendment No. 2 by telecopier also
shall deliver an original executed counterpart of this Amendment No. 2, but the
failure to deliver an original
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executed counterpart shall not affect the validity, enforceability, and binding
effect of this Amendment No. 2 as to such party or any other party.
J. FURTHER ASSURANCES. The parties hereto agree to promptly take such
action, upon the reasonable request of the Agent or the Lenders as is reasonably
necessary to carry out the intent of this Amendment No. 2.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES TO FOLLOW.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
Loan and Security Agreement, Consent and Waiver to be duly executed and
delivered by their authorized officers as of the day and year first above
written.
AGENT: BORROWERS:
WACHOVIA BANK, NATIONAL ATLAS AIR, INC.
ASSOCIATION,
as successor by merger to Congress Financial By: /s/ Dorinda Pannozzo
Corporation, as Agent -----------------------------
Title: Assistant Treasurer
By: /s/ Dave Luce --------------------------
-------------------------------
Title: VICE PRESIDENT POLAR AIR CARGO, INC.
----------------------------
By: /s/ William C. Bradley
-----------------------------
Title: Vice President & Treasurer
--------------------------
LENDERS: GUARTANTORS:
WACHOVIA BANK, NATIONAL ATLAS AIR WORLDWIDE
ASSOCIATION, HOLDINGS, INC.
as successor by merger to Congress Financial
Corporation, as Agent By: /s/ William C. Bradley
-----------------------------
By: /s/ Dave Luce Title: Vice President & Treasurer
------------------------------- --------------------------
Title: VICE PRESIDENT
----------------------------
AIRLINE ACQUISITION CORP I
By: /s/ William C. Bradley
-----------------------------
Title: Vice President & Treasurer
--------------------------