EXHIBIT 10.6.7
CONSENT AND SECOND AMENDMENT
CONSENT AND SECOND AMENDMENT (this "Amendment"), dated as of May 31,
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.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to that certain Amended and Restated Credit Agreement, dated as of July
27, 2004 (as amended, supplemented and/or otherwise modified from time to time,
the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders amend certain
provisions of the Credit Agreement and enter into certain consents in respect of
the Credit Agreement, each of the Leases and each of the Aircraft Chattel
Mortgages as set forth below; and
WHEREAS, on January 24, 0000, Xxxxxxxx X000XX and Engine Nos. 517943
and 455157 (collectively, the "Damaged Engines") were damaged in an accident;
NOW, THEREFORE, it is agreed;
A. AMENDMENTS TO THE CREDIT AGREEMENT
1. The definition of "Spare Engine Pool" appearing in Section 1.1
of the Credit Agreement is hereby amended by (x) deleting the text "455167"
appearing therein, and (y) inserting the text "517557" in lieu thereof.
2. The proviso to Section 2.4B(ii)(c) of the Credit Agreement is
hereby amended by (x) deleting the text "Section 4(f)(iv)(A) or 4(f)(iv)(B)"
appearing therein, and (y) inserting the text "Section 4(f)(iii)(A) or
4(f)(iii)(B)" in lieu thereof.
3. Schedule 2.3 of the Credit Agreement is hereby amended and
restated in the form of Schedule 2.3 attached hereto.
B. CONSENT
1. The Lenders hereby consent and agree to (i) the settlement
(the "Settlement") entered into by the Borrower with its insurance carrier in
respect of the damage to Airframe N808MC and the Damaged Engines as set forth in
that certain letter dated April 6, 2005 from Atlas Air Worldwide Holdings Inc.
to Xxxxxx Global Aviation, (ii) the mandatory prepayment (the "Prepayment") to
the Lenders in accordance with Section 2.4B(ii)(b) of the Credit Agreement, for
application to the Loans in accordance with Section 2.4B(iii)(b) of the Credit
Agreement, of $12,249,824 (the "Net Proceeds"), which is an amount equal to the
gross cash proceeds under the Settlement, totaling $12,550,000, less actual and
documented reasonable costs incurred in connection with the Settlement, in the
amount of $300,176, (iii) the Prepayment being made by Atlas, on behalf of the
Borrower, in advance of the receipt of cash payments under the Settlement, (iv)
the Prepayment as full satisfaction of the Borrower's obligations under Section
2.4B(ii)(b) of the Credit Agreement in respect of the Settlement and relating to
Airframe N808MC and the Damaged Engines, (v) the termination of the Lease in
respect of Aircraft N808MC, and (vi) the sale of Xxxxxxxx X000XX, the Damaged
Engines and Engine Nos. 517598 and 517658 by the Borrower to Atlas.
2. The Lenders hereby consent and authorize the Administrative
Agent to enter into such amendments to the Aircraft Chattel Mortgages and to the
Leases, in respect of Aircraft N808MC and of each of the Damaged Engines, and
such other related documents, agreements and instruments (the "Amendment
Documents") deemed necessary or desirable by the Administrative Agent to
implement the transactions contemplated by the Settlement and the Prepayment,
including to release the Administrative Agent's Lien on Airframe N808MC, on the
Damaged Engines, and on Engine Nos. 517598 and 517658 and to disclaim any
interest of the Administrative Agent in the Settlement.
3. The Lenders hereby consent to further amend Section 14(b) of
each of the Leases and Section 4(g)(ii) of each of the Aircraft Chattel
Mortgages to reduce the minimum required insured value in respect of each
Aircraft to the greater of the Stipulated Loss Value (as defined in each Lease)
and $15,000,000.
C. MISCELLANEOUS PROVISIONS
1. In order to induce the Lenders to enter into this Amendment,
the Borrower hereby represents and warrants to each of the Lenders that (i) all
of the representations and warranties (excluding, solely in respect of Aircraft
N808MC, Engine 517943 and Engine 455167, the representations and warranties made
in Section 4.5(B) of the Credit Agreement) contained in the Credit Agreement and
in the other Loan Documents are true and correct in all material respects on and
as of the Swap Consent Effective Date and the Second Amendment Effective Date
(each 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 Swap Consent Effective Date and 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 the
Borrower and the Administrative Agent.
-2-
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. The amendment provided in Section A.1 above, and the consent
provided in Section B.2 above, solely as such consent relates to the amendments
to the Leases and to the Aircraft Chattel Mortgages in respect of Aircraft
N808MC, Aircraft N517MC and the Spare Engine Pool, and related documentation, in
all cases required to implement the "swap" under the relevant Loan Documents of
(x) Engine No. 517577 for Engine No. 455167, and (y) Engine Xx. 000000 for
Engine No. 517943, shall become effective on the date (the "SWAP CONSENT
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.
This Amendment, including all other amendments and consents hereunder, shall
become effective on the date (the "SECOND 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, the Administrative
Agent shall have received (including by way of telecopier) the other Amendment
Documents and related legal opinions duly executed and delivered by the
appropriate parties thereto, and the Administrative Agent shall have received
the Net Proceeds in immediately available funds.
6. From and after the Swap Consent Effective Date and the 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.
* * *
-3-
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered as of the date first written above.
ATLAS FREIGHTER LEASING III, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: XXXXXXX X. XXXXXXX
Title: TREASURER & SECRETARY
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
NAME OF LENDER:
ANCHORAGE CAPITAL MASTER OFFSHORE, LTD.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Director
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
NAME OF LENDER:
Canpartners Investments IV, LLC.
By: /s/ X. Xxxxxxxxx X. Xxxxxxx
----------------------------------
Name: X. Xxxxxxxxx X. Xxxxxxx
Title: Managing Director
PROPORTIONATE VOTING PROVISION
The above signed, CANPARTNERS INVESTMENTS IV, LLC ("Canyon"), is a Lender to
ATLAS FREIGNTER LEASING III, INC., dated as of JULY 27, 2004 (the "Credit
Agreement"). Canyon's approval of a CONSENT AND SECOND AMENDMENT 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 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 (without counting
failure to vote or abstentions.)
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
NAME OF LENDER:
CITIGROUP FINANCIAL PRODUCTS, INC.,
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name:
Title: AUTHORIZED SIGNATORY
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
NAME OF LENDER:
LISPENARD STREET CREDIT (MASTER) LTD.
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
NAME OF LENDER:
Intermarket Corp, as agent for Fernwood Associates,
Fernwood Restructurings, Fernwood Foundation Fund
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
NAME OF LENDER:
XXXXXXX XXXXX CREDIT PARTNERS LP
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
NAME OF LENDER:
XXXXXXX XXXXX CREDIT PRODUCTS, LLC
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: XXXXX XXXXXX
Title: VICE PRESIDENT
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
Sankaty Advisors, LLC as Collateral
Manager for Prospect Funding I,
LLC as Term Lender
NAME OF LENDER:
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
RZB FINANCE LLC:
By: /s/ Xxxxxxxxx Xxxxx
----------------------------------
Name: XXXXXXXXX XXXXX
Title: GROUP VICE PRESIDENT
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: XXXX X. XXXXXXX
Title: FIRST VICE PRESIDENT
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
Sankaty High Yield Asset Partners, L.P.
NAME OF LENDER:
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: XXXXXXX XXXXX
Title: SENIOR VICE PRESIDENT
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
Sankaty High Yield Partners II, L.P.
NAME OF LENDER:
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: XXXXXXX XXXXX
Title: SENIOR VICE PRESIDENT
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
Sankaty High Yield Partners III, L.P.
NAME OF LENDER:
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: XXXXXXX XXXXX
Title: SENIOR VICE PRESIDENT
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
Sankaty High Yield Partners III, L.P.
NAME OF LENDER:
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: XXXXXXX XXXXX
Title: SENIOR VICE PRESIDENT
[Signature Page to Second Amendment and Consent
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/ Xxxxxxx Xxxxx
----------------------------------
Name: XXXXXXX XXXXX
Title: AS ATTORNEY-IN-FACT
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
NAME OF LENDER:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx x. Xxxxx
Title: Vice President
[Signature Page to Second Amendment and Consent
to the Amended and Restated Credit Agreement]
