Exhibit 10.6
E XECUTION V ERSION
AMENDED AND RESTATED FIRST
NON-NEGOTIABLE PROMISSORY NOTE
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$31,000,000
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New York, New York
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May 8, 2009
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ABX Air, Inc., a Delaware
corporation (the “ Maker ”), for value received,
hereby unconditionally promises to pay to DHL Express (USA), Inc.,
an Ohio corporation (the “ Holder ”), as
successor to Airborne, Inc., a Delaware corporation, the principal
sum of $31,000,000, plus all accrued but unpaid interest thereon,
at 12:00 noon New York time on or before August 15, 2028 (the
“ Payment Date ”), at the offices of DPWN
Holdings (USA), Inc. (“ DPWN Holdings ”), 1200
South Pine Island Road, Suite 3000, Plantation, FL 33321, or to
make such payment at such other place as may otherwise be directed
in writing by the Holder from time to time in accordance with the
terms of this Amended and Restated First Non-Negotiable Promissory
Note (this “ Note ”). The terms and conditions
of this Note are set forth below.
Terms and
Provisions
Section 1. Payments
. All payments to be made
by the Maker hereunder shall be made without set-off or
counterclaim, in United States dollars in immediately available
funds at the office of DPWN Holdings or such other place as may be
designated by the Holder in writing from time to time. Whenever any
payment hereunder shall be stated to be due on a day that is not a
Business Day (as defined in Section 10 ), such payment
shall be made on the next succeeding Business Day.
Section 2. Interest
.
(a) This Note shall bear interest
from the date hereof at a rate of five percent (5%) per
annum . Prior to the Payment Date, accrued interest shall be
payable in immediately available funds on each
December 1 st and June 1 st ,
commencing on June 1, 2009. Interest shall be computed on
the basis of a year of 365/366 days for actual days elapsed.
Accrued interest also shall be payable on demand in respect of any
past due amounts and upon payment in full of this Note on the
Payment Date. Interest shall accrue and be paid by the Maker in
arrears. Anything in this Note to the contrary notwithstanding, the
Holder shall not be permitted to charge or receive, and the Maker
shall not be obligated to pay, interest in excess of the maximum
rate from time to time permitted by applicable law.
(b) Any principal, interest or any
other amount hereunder which is not paid when due (whether as
stated, by acceleration or otherwise) shall, to the extent
permitted by law, thereafter bear interest at a rate of two percent
(2%) per annum above the rate described
above.
Section 3. Prepayment
. The Maker may at any
time and from time to time, with two (2) Business Days prior
written notice to the Holder, prepay in immediately available
funds, this Note in whole or in part without premium or penalty;
provided that such prepayment is accompanied by the payment
of all unpaid interest accrued to the date of prepayment and any
other amounts due under this Note; and provided ,
further , that, except for required prepayments called for
under Section 8(b) , each partial prepayment shall be
in an amount not less than $100,000 or a whole multiple thereof
(or, if less, the remaining outstanding principal amount thereof).
Amounts prepaid may not be re-borrowed.
Section 4. Repayment on a
Change of Control . The Maker shall give the Holder written notice
in the event of a Change of Control (as defined below) that occurs
after the date hereof at or prior to its consummation prior to the
Payment Date. Upon receipt of such notice, the Holder shall have 60
days to demand in writing the repayment in full of this Note,
including all accrued but unpaid interest, and the Maker hereby
unconditionally agrees that it shall, on the second (2
nd ) Business Day following the receipt of
such demand from the Holder, pay to the Holder, in immediately
available funds, an amount equal to the entire outstanding
principal amount of this Note, plus all accrued but unpaid interest
thereon.
For purposes of this Note, a “
Change of Control ” means the occurrence of any of the
following after the date of this Note: (i) during any period
of two (2) consecutive years, individuals who at the beginning
of such period constituted the directors of ATSG (as defined in
Section 10 ) (together with any new directors whose
election by such directors or whose nomination for election by the
stockholders of ATSG was approved by a vote of a majority of the
directors of ATSG then still in office who were either directors at
the beginning of such period or whose election or nomination for
election was previously so approved), cease for any reason to
constitute a majority of the directors of ATSG then in office,
(ii) (A) any merger, consolidation or other business
combination of ATSG with or into any other entity, or any other
similar transaction, whether in a single transaction or series of
related transactions where (1) the stockholders of ATSG,
immediately prior to such transaction in the aggregate, cease to
own at least fifty percent (50%) of the voting securities of
the entity surviving or resulting from such transaction (or the
ultimate parent thereof) (such ownership being based solely on the
voting securities of ATSG owned by such stockholders immediately
prior to such event) or (2) any Person (as defined in
Section 10 ) becomes the beneficial owner of more than
fifty percent (50%) of the voting securities of the entity
surviving or resulting from such transaction (or the ultimate
parent thereof) with ATSG or (B) a change in the ownership of
the Maker such that ATSG (or the ultimate parent thereof) fails
directly or through one or more Subsidiaries to (1) own
legally and beneficially at least 51%, on a fully diluted basis, of
the issued and outstanding voting securities of the Maker or
(2) have the power to direct or cause the direction of the
management and policies of the Maker, (iii) any transaction or
series of related transactions after which in excess of fifty
percent (50%) of ATSG’s (or the ultimate parent thereof)
voting power is held by any Person or group (within the meaning of
Regulation 13D under the Securities Exchange Act of 1934), or
(iv) any sale, transfer, lease, assignment, conveyance,
exchange, mortgage or other disposition of all or substantially all
of the assets, property or business of ATSG and its Subsidiaries,
taken as a whole, other than (A) in connection with the
granting of any security interest or other lien pursuant to the
Senior Credit Facility ( provided , however , that if
any secured party takes possession or control of any material
portion of such pledged assets, for any purpose other than to
perfect its security interest in such pledged asset, a Change of
Control shall be deemed to have occurred) or (B) any
transaction in the ordinary course of business involving the sale
and leaseback of any aircraft ( provided , however ,
that such transaction does not involve all or substantially all of
the aircraft of ATSG and its Subsidiaries, taken as a whole).
Without limiting the generality of the foregoing, a “Change
of Control” shall not include any transaction consummated
before the date of this Note.
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Section 5.
Representations and Warranties . The Maker hereby represents and warrants to the
Holder that (i) the Maker is duly organized, validly existing
and in good standing under the laws of its jurisdiction of
organization, has the full power and authority to make, deliver and
perform this Note and its obligations hereunder on the terms and
conditions hereof, (ii) the execution, delivery and
performance of this Note have been duly authorized by the Maker,
and this Note has been duly executed and delivered on behalf of the
Maker, (iii) no consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental
Authority (as defined in Section 10 ) or any other
Person is required in connection with the debt hereunder or with
the execution, delivery, performance, validity or enforceability of
this Note, except for consents, authorizations, filings and notices
that have been obtained or made and are in full force and effect,
(iv) this Note constitutes a legal, valid and binding
obligation of the Maker enforceable against it in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and
by general equitable principles (whether enforcement is sought by
proceedings in equity or at law), (v) the execution, delivery
and performance of this Note will not violate any requirement of
law or any of the applicable articles or certificates of
incorporation, bylaws or similar organizational documents of the
Maker or its Subsidiaries and (vi) no Event of Default (as
defined below) has occurred and is continuing.
Section 6. Events of
Default . If:
(a) the Maker fails to pay the
principal amount in accordance with the terms of this
Note;
(b) the Maker fails to pay any
interest on this Note or any fee or any other amount (other than an
amount referred to in clauses (a) or (h) of this
Section 6 ) payable under this Note, when and as the
same shall become due and payable, and such failure shall continue
unremedied for a period of thirty (30) days;
(c) the Maker fails to observe or
perform in any material respect any covenant, condition or
agreement contained in this Note, and such default shall continue
for a period of sixty (60) days after notice is given by the
Holder to comply with such covenant, condition or
agreement;
(d) any representation or warranty
made by the Maker in or in connection with this Note or any
amendment or modification hereof or waiver hereunder proves to have
been incorrect in any material respect when made and such defect
shall continue for a period of sixty (60) days after notice is
given by the Holder to comply with such representation or
warranty;
(e) by virtue of a default by the
Maker or, as applicable, any of its Affiliates or Subsidiaries
under the Senior Credit Facility, the entire indebtedness
outstanding under the Senior Credit Facility has been accelerated
by the holders of such indebtedness, and, thereby, such
indebtedness becomes immediately due and payable in advance of the
regularly scheduled maturity date for such indebtedness;
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(f) the Maker or any of its
Affiliates or Subsidiaries commences any case, proceeding or other
action (i) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to
adjudicate it bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to its debts, or
(ii) seeking appointment of a receiver, trustee, custodian or
other similar official for any substantial part of its assets, or
the Maker makes a general assignment for the benefit of its
creditors;
(g) there shall be commenced against
the Maker or any of its Subsidiaries any case, proceeding or other
action of a nature referred to in paragraph (f) above which
(i) results in the entry of an order for relief for any such
adjudication or appointment or (ii) remains undismissed,
undischarged or unbonded for a period of sixty (60) days;
or
(h) the Maker fails to make any
payment to the Holder in accordance with Section 8(b)
of this Note on the date that the first payment made in connection
with any transaction contemplated by Section 8(b) of
this Note is made;
then, and in any such event (each,
an “ Event of Default ”), the Holder may, by
notice of default given to the Maker in writing (including by
facsimile transmission), declare any unpaid principal, accrued but
unpaid interest and all other amounts payable under this Note to be
immediately due and payable without presentment, demand, protest or
other notice of any kind on the part of the Holder. Any cure
periods provided for in this Section 6 shall be
available from time to time in respect of subsequent failures or
deficiencies so long as this Note remains outstanding.
Section 7. Ranking
. The obligations of the
Maker in respect of this Note shall rank pari passu with all
other unsecured debt of the Maker that is not expressly
subordinated to the indebtedness outstanding hereunder.
Section 8. Covenants
. Until the principal of
and interest and all other amounts due on this Note have been paid
in full, the Maker covenants and agrees with the Holder
that:
(a) Intentionally
Omitted.
(b) Restricted
Payments.
(i) ATSG, its Subsidiaries and
Affiliates shall not purchase or otherwise acquire, directly or
indirectly, the issued and
