Exhibit 10.5.4
CONSENT AND SECOND AMENDMENT
CONSENT AND SECOND AMENDMENT (this "AMENDMENT"), dated as of July 28,
2005, among ATLAS AIR WORLDWIDE HOLDINGS, INC., a Delaware corporation
("HOLDINGS"), ATLAS AIR, INC., a Delaware corporation ("COMPANY"), the lenders
from time to time party to the Credit Agreement referred to below (each a
"LENDER" and, collectively, the "LENDERS"), and DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Administrative Agent for the Lenders, (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, Holdings, Company, the Lenders and the Administrative Agent have
entered into a Fifth Amended and Restated Credit Agreement, dated as of July 27,
2004 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"); and
WHEREAS, Holdings and Company have requested that the Lenders amend the
Credit Agreement and enter into a consent in respect of the Credit Agreement and
the Aircraft Chattel Mortgages as set forth below;
NOW, THEREFORE, it is agreed;
A. AMENDMENT TO THE CREDIT AGREEMENT
1. The definition of "AFL III Equipment" appearing in Section 1.1 of the
Credit Agreement is hereby amended by (x) deleting the text "thirteen" appearing
therein and (y) inserting the text "twelve" in lieu thereof; by (z) deleting the
text ", N808MC" contained therein.
B. CONSENT
1. The Lenders hereby consent to amend Section 4(g)(ii) of each of the
Aircraft Chattel Mortgages to reduce the minimum required insured value in
respect of each Financed Aircraft to an amount not less than $15,000,000.
C. MISCELLANEOUS PROVISIONS
1. In order to induce the Lenders to enter into this Amendment, Holdings
and Company hereby represent and warrant 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 the Second
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 Second 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 Company and the
Administrative 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 "SECOND
AMENDMENT EFFECTIVE DATE") when Holdings, Company 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 Second 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.
* * *
-2-
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered as of the date first above written.
ATLAS AIR WORLDWIDE HOLDINGS, INC.
By: /s/ Dorinda Pannozzo
------------------------------
Name:
Title:
ATLAS AIR, INC.
By: /s/ Dorinda Pannozzo
------------------------------
Name:
Title:
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, Jr.
----------------------------------------
Name: Robert M. Wood, Jr.
Title: Director
NAME OF LENDER:
Canpartners Investments IV, LLC
By: /s/ Mitchell R. Julis
--------------------------------------
Mitchell R. Julis
Managing Director
By: Canpartners Investment IV, LLC,
a California limited liability company
PROPORTIONATE VOTING PROVISIONS
The above signed, Canpartners Investments IV, LLC ("Canyon"), is a Lender to
Atlas Air, dated as of July 27, 2004 (the "Credit Agreement"). Canyon's approval
of a Consent and Second Amendment to the Fifth Amended and Restated Credit
Agreement has been requested pursuant to the terms of the Credit Agreement.
Canyon hereby votes its percentage interest as a Lender in favor of and/or
against the approval of the Consent and Second Amendment to the Fifth Amended
and Restated Credit Agreement in direct proportion to the votes of those other
Lenders under the Credit Agreement that have voted for or against the approval
of the Consent and Second Amendment to the Fifth Amended and Restated Credit
Agreement (without counting failure to vote or abstentions.)
[Signature Page to the Consent and Second Amendment
to the Fifth 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 Second Amendment
to the Fifth 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 Second Amendment
to the Fifth 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 Second Amendment
to the Fifth Amended and Restated Credit Agreement]
Sankaty Advisors, LLC as Collateral
Manager for Prospect Funding I,
LLC as Term Lender
NAME OF LENDER:
___________________________
By: /s/ Diane J. Exter
--------------------------------------
Name: Diane J. Exter
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
[Signature Page to the Consent and Second Amendment
to the Fifth 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 Second Amendment
to the Fifth Amended and Restated Credit Agreement]
NAME OF LENDER:
__________________________
By: /s/ Suzanne Kelcher
--------------------------------------
Name: Suzanne Kelcher
Title: Attorney-In-Fact
Royal Bank of Canada
[Signature Page to the Consent and Second Amendment
to the Fifth Amended and Restated Credit Agreement]
NAME OF LENDER:
Sankaty High Yield Asset Partners, L.P.
By: /s/ Diane J. Exter
--------------------------------------
Name: Diane J. Exter
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
[Signature Page to the Consent and Second Amendment
to the Fifth Amended and Restated Credit Agreement]
NAME OF LENDER:
Sankaty High Yield Asset Partners II, L.P.
By: /s/ Diane J. Exter
--------------------------------------
Name: Diane J. Exter
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
[Signature Page to the Consent and Second Amendment
to the Fifth Amended and Restated Credit Agreement]
NAME OF LENDER:
Sankaty High Yield Asset Partners III, L.P.
By: /s/ Diane J. Exter
---------------------------------------
Name: Diane J. Exter
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
[Signature Page to the Consent and Second Amendment
to the Fifth 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 Second Amendment
to the Fifth Amended and Restated Credit Agreement]