EX-10.6.2 16 c37970ex10_6-2.txt 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. * * * -2- 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 ---------- (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 -2- 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. -3- 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]