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
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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.
2
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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 (
