Exhibit 10.2
Execution Version
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of February 13, 2019 (this “
Amendment
”), by and among CARGO AIRCRAFT MANAGEMENT, INC., a Florida corporation (the “
Borrower
”), AIR TRANSPORT SERVICES GROUP, INC., a Delaware corporation (“
Holdings
”), each of the Guarantors party hereto, each of the financial institutions party hereto as “Lenders” and SUNTRUST BANK, in its capacity as Administrative Agent (in such capacity, the “
Administrative Agent
”).
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WHEREAS, the Borrower, Holdings, the Lenders and the Administrative Agent are parties to that certain Second Amended and Restated Credit Agreement dated as of November 9, 2018 (the “
Credit Agreement
”); and
WHEREAS, the Borrower has requested that the Lenders modify the collateral ratio in Section 9.14 of the Credit Agreement as more fully described herein; and
WHEREAS, the Lenders party to this Amendment and the Administrative Agent are willing to modify Section 9.14 of the Credit Agreement on and subject to the terms and conditions herein.
NOW, THEREFORE, for and in consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
1.
Defined Terms
. Capitalized terms which are used herein without definition and which are defined in the Credit Agreement shall have the same meanings herein as in the Credit Agreement.
2.
Amendment to Credit Agreement
.
The Credit Agreement is hereby amended by deleting
Section 9.14
in its entirety and substituting in lieu thereof the following new
Section 9.14
to read in its entirety as follows:
Section 9.14
Collateral Ratio
. Holdings will not at any time permit the Collateral to Outstanding Loan Ratio to be less than (A) 1.02:1.00 at any time from the Closing Date through and including December 30, 2019, (B) 1.15:1.00 at any time from December 31, 2019 through and including December 30, 2020 and (C) 1.25:1.00 at any time on and after December 31, 2020. If the Collateral to Outstanding Loan Ratio falls below the required minimum for any Test Period, the Borrower shall as soon as reasonably practicable, but not in any event later than 45 days thereafter, cause one or more Qualified Aircraft to be admitted to the Collateral Pool such that the Collateral to Outstanding Loan Ratio will be in compliance with this
Section 9.14
as of any such Test Period.
3.
Conditions Precedent to Effectiveness
.
The effectiveness of this Amendment is subject to the truth and accuracy of the warranties and representations set forth in Sections 4 and 5 below and receipt by the Administrative Agent of each of the following, each of which shall be in form and substance satisfactory to Administrative Agent:
(a) This Amendment, duly executed and delivered by the Borrower, Holdings, the Required Lenders and the Administrative Agent;
(b) A certificate of the Borrower dated as of the date hereof signed by an Authorized Officer of the Borrower certifying that, before and after giving effect to the amendments contemplated by this Amendment (i) the representations and warranties contained in Section 7 of the Credit Agreement and the other Credit Documents are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date and (ii) no Default or Event of Default exists before or after giving effect to the amendments contemplated by this Amendment;
(c) A Reaffirmation of Obligations Under Credit Documents (the “
Reaffirmation
”) dated as of the date hereof duly executed by each Credit Party, in the form of Exhibit I attached hereto; and
(d) Such other documents as the Administrative Agent may reasonably request.
4.
Representations
.
Each of the Borrower and Holdings represents and warrants to the Administrative Agent and the Lenders that:
(a)
Power and Authority
. Each of the Borrower and the other Credit Parties have the power and authority to execute, deliver and perform the terms and provisions of this Amendment and the Credit Agreement, as amended by this Amendment, and have taken all necessary corporate action to duly authorize the execution, delivery and performance of this Amendment. Each of this Amendment and the Credit Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation of the Borrower and Holdings enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles.
(b)
No Violation
. The execution, delivery and performance by the Borrower and the other Credit Parties of this Amendment, and compliance by them with the terms and provisions of the Credit Agreement, as amended by this Amendment: (i) will not contravene any provision of any law, statute, rule or regulation or any order, writ, injunction or decree of any court or federal, state or local Governmental Authority, (ii) will not conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien upon any of the property or assets of any Credit Party pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other agreement, contract or instrument, to which any Credit Party is a party or by which they or any of their property or assets is bound or
to which they may be subject or (iii) will not violate any provision of the certificate or articles of incorporation or bylaws of the Borrower, Holdings or any other Credit Party.
(c)
Governmental Approvals; Consents
. No order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for those that have otherwise been obtained or made on or prior to the date of the effectiveness of this Amendment and which remain in full force and effect on such date), or exemption by, any Governmental Authority, and no consent, approval, authorization, registration, filing or order under any Contractual Obligation or applicable law, is required to authorize, or is required in connection with, (i) the execution, delivery and performance of this Amendment by the Borrower or Holdings or (ii) the legality, validity, binding effect or enforceability of the Credit Agreement, as amended by this Amendment, against the Borrower or Holdings.
(d)
No Default
. No Default or Event of Default has occurred and is continuing as of the date hereof and no Default or Event of Default will exist immediately after giving effect to this Amendment.
(e)
No Impairment
. The execution, delivery, performance and effectiveness of this Amendment will not: (a) impair the validity, effectiveness or priority of the Liens granted pursuant to any Credit Document, and such Liens continue unimpaired with the same priority to secure repayment of all of the applicable Obligations, whether heretofore or hereafter incurred, and (b) require that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens.
(f)
Credit Parties
. The list of signatories to the Reaffirmation represents a true, correct and complete list of all Persons who are required by the terms of the Credit Documents to be or to become a Credit Party as of the date hereof.
(g)
Disclosure
. As of the date hereof, all information (other than projections, other forward-looking information and information of a general economic or industry-specific nature) that has been made available concerning the Credit Parties and/or the transactions contemplated by this Amendment prepared by, or on behalf of, the Borrower or Holdings or by any of their respective representatives or affiliates, and made available to any Lender or the Administrative Agent in connection with the transactions contemplated by this Amendment on or before the date hereof, when taken as a whole, did not, when furnished, contain any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made.
5.
Reaffirmation of Representations
. Each of the Borrower and Holdings hereby repeats and reaffirms all representations and warranties made to the Administrative Agent and the Lenders in the Credit Agreement and the other Credit Documents on and as of the date hereof (and after giving effect to this Amendment) with the same force and effect as if such representations and warranties were set forth in this Amendment in full (except to the extent that such representations and warranties relate expressly to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).
6.
No Further Amendments; Ratification of Liability
. Except as expressly amended or waived hereby, the Credit Agreement and each of the other Credit Documents shall remain in full force and effect in accordance with their respective terms, and the Lenders and the Administrative Agent hereby require strict compliance with the terms and conditions of the Credit Agreement and the other Credit Documents in the future. Each of the Borrower and Holdings hereby (i) restates, ratifies, confirms and reaffirms its respective liabilities, payment and performance obligations (contingent or otherwise) and each and every term, covenant and condition set forth in the Credit Agreement and the other Credit Documents to which it is a party, all as amended by this Amendment, and the liens and security interests granted, created and perfected thereby and (ii) acknowledges and agrees that this Amendment shall not in any way affect the validity and enforceability of any Credit Document to which it is a party, or reduce, impair or discharge the obligations of the Borrower or Holdings or the Collateral granted to the Administrative Agent and/or the Lenders thereunder. The Lenders’ agreement to the terms of this Amendment or any other amendment of the Credit Agreement or any other Credit Document shall not be deemed to establish or create a custom or course of dealing between the Borrower, Holdings or the Lenders, or any of them. This Amendment shall be deemed to be a “Credit Document” for all purposes under the Credit Agreement. After the effectiveness of this Amendment, each reference to the Credit Agreement in any of the Credit Documents shall be deemed to be a reference to the Credit Agreement as amended by this Amendment.
7.
Other Provisions
.
(a)
This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, and all counterparts, taken together, shall constitute but one and the same document.
(b)
The Borrower agrees to reimburse the Lenders and the Administrative Agent on demand for all reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by such parties in negotiating, documenting and consummating this Amendment, the other documents referred to herein, and the transactions contemplated hereby and thereby.
(c)
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(d)
THIS AMENDMENT CONSTITUTES THE ENTIRE CONTRACT AMONG THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL PREVIOUS DISCUSSIONS, CORRESPONDENCE, AGREEMENTS AND OTHER UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF.
(e)
In consideration of the amendments contained herein, each of the Borrower and Holdings hereby waives and releases each of the Lenders and the Administrative Agent from any
and all known claims and defenses with respect to the Credit Agreement and the other Credit Documents and the transactions contemplated thereby.
(f)
Each of the Borrower and Holdings agrees to take all further actions and execute such other documents and instruments as the Administrative Agent may from time to time reasonably request to carry out the transactions contemplated by this Amendment, the Credit Documents and all other agreements executed and delivered in connection herewith.
(g)
THE PARTIES HERETO HAVE ENTERED INTO THIS AMENDMENT SOLELY TO AMEND TERMS OF THE CREDIT AGREEMENT. THE PARTIES DO NOT INTEND THIS AMENDMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS AMENDMENT AND THE TRANSACTION CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE BORROWER OR HOLDINGS UNDER OR IN CONNECTION WITH THE CREDIT AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS.
IN WITNESS WHEREOF, the Borrower, Holdings, the Lenders and the Administrative Agent have caused this First Amendment to Second Amended and Restated Credit Agreement to be duly executed by their respective duly authorized officers and representatives as of the day and year first above written.
CARGO AIRCRAFT MANAGEMENT, INC.
By:
/s/ W. Joseph Payne
Name: W. Joseph Payne
Title: Vice President, Secretary
AIR TRANSPORT SERVICES GROUP, INC.
By:
/s/ Joseph C. Hete
Name: Joseph C. Hete
Title: President & CEO
[Signatures Continue on Following Pages]
SUNTRUST BANK, as Administrative Agent and as a Lender
By:
/s/ Anika Kirs
Name: Anika Kirs
Title: Vice President
[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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BANK OF AMERICA, N.A., as a Lender
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By:
/s/ Gregg A. Bush
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Name: Gregg A. Bush
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Title: Senior Vice President
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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PNC BANK, NATIONAL ASSOCIATION, as a Lender
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By:
/s/ David Beckett
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Name: David Beckett
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Title: Senior Vice President
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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JPMORGAN CHASE BANK, N.A., as a Lender
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By:
/s/ Poonam Patel
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Name: Poonam N. Patel
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Title: Authorized Officer
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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REGIONS BANK, as a Lender
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By:
/s/ Tim Blakley
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Name: Tim Blakley
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Title: Director
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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BRANCH BANKING AND TRUST COMPANY, as a Lender
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By:
/s/ Melinda Gulledge
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Name: Melinda Gulledge
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Title: Assistant Vice President
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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COMPASS BANK, as a Lender
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By:
/s/ Jeff Bork
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Name: Jeff Bork
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Title: Senior Vice President
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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GOLDMAN SACHS BANK USA,
as a Lender
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By:
/s/ Jamie Minieri
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Name: Jamie Minieri
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Title: Authorized Signatory
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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CIBC BANK USA, as a Lender
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By:
/s/ Nick Fadel
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Name: Nick Fadel
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Title: Managing Director
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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THE NORTHERN TRUST COMPANY, as a Lender
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By:
/s/ John Di Legge
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Name: John Di Legge
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Title: Senior Vice President
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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UNION BANK & TRUST, as a Lender
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By:
/s/ deK Bowen
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Name: deK Bowen
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Title: Senior Vice President
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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ATLANTIC CAPITAL BANK, N.A., as a Lender
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By:
/s/ Preston McDonald
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Name: Preston McDonal
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Title: Senior Vice President
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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BOKF, NA, as a Lender
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By:
/s/ Jane P. Faulkenbery
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Name: Jane P. Faulkenbery
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Title: Senior Vice President
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[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
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TRISTATE CAPITAL BANK, as a Lender
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By:
/s/ Ellen Frank
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Name: Ellen Frank
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Title: Senior Vice President
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[End of Signatures]
[Signature Page to First Amendment to Second Amended and Restated Credit Agreement]
EXHIBIT I
REAFFIRMATION OF OBLIGATIONS UNDER CREDIT DOCUMENTS
February 13, 2019
Reference is hereby made to (i) that certain Second Amended and Restated Credit Agreement dated as of November 9, 2018 among Cargo Aircraft Management, Inc. (the “
Borrower
”), Air Transport Services Group, Inc., the Lenders a party thereto and SunTrust Bank, as Administrative Agent (the “
Credit Agreement
”; capitalized terms used herein and not defined herein have the meanings ascribed to such terms in the Credit Agreement) and (ii) that certain First Amendment to Second Amended and Restated Credit Agreement dated as of the date hereof (the “
Amendment
”) among the Borrower, each other Credit Party party thereto, the Lenders and the Administrative Agent.
Each Credit Party acknowledges and reaffirms that (i) all liens and security interests granted to the Administrative Agent and the Lenders under the Security Documents remain in full force and effect and shall continue to secure the Obligations and (ii) the validity, perfection, enforceability or priority of such liens and security interests will not be impaired in any way by the Amendment.
Each of the undersigned Credit Parties hereby further reaffirms its continuing obligations owing to the Administrative Agent and the Lenders under each of the Credit Documents (including, without limitation, the guarantee obligations of each Guarantor under the Guarantee and Collateral Agreement) to which such Person is a party, and each Credit Party agrees that the amendments contained in the Amendment are solely to amend the terms of the Credit Agreement and do not in any way affect the validity and/or enforceability of any Credit Document, or reduce, impair or discharge the obligations of such Person thereunder.
Each of the undersigned Credit Parties hereby represents and warrants to the Administrative Agent and the Lenders that: (a) the execution and delivery by the Credit Parties of this Reaffirmation is within the power (corporate or otherwise) and authority of the Credit Parties, has been duly authorized and approved by all requisite action on the part of the Credit Parties, and does not and will not contravene, breach or conflict with any provision of applicable law or any of the charter or other organic documents of the Credit Parties, or any indenture, agreement, instrument or undertaking binding on the Credit Parties; (b) this Reaffirmation has been duly executed by the Credit Parties; and (c) the Credit Documents remain in full force and effect and constitute the legal, valid and binding obligations of the Credit Parties, enforceable in accordance with their terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting generally the enforcement of creditor's rights; and (d) all of the Obligations are absolute and unconditional, and such Obligations are not subject to any claim, defense, deduction, right of offset or otherwise.
THE CREDIT PARTIES DO NOT INTEND THE AMENDMENT NOR THE TRANSACTIONS CONTEMPLATED THEREBY TO BE, AND THE AMENDMENT AND THE TRANSACTION CONTEMPLATED THEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE CREDIT PARTIES UNDER OR IN CONNECTION WITH THE CREDIT AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS.
This Reaffirmation shall be construed in accordance with and be governed by the law (without giving effect to the conflict of law principles thereof) of the State of New York.
[Signatures Appear on Following Page]
IN WITNESS WHEREOF, each of the undersigned has duly executed and delivered this Reaffirmation of Obligations under Credit Documents as of the date first written above.
CARGO AIRCRAFT MANAGEMENT, INC.
By:
Name: W. Joseph Payne
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Title: Vice President, Secretary
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ABX AIR, INC.
By:
Name: W. Joseph Payne
Title: Vice President, General Counsel & Secretary
LGSTX DISTRIBUTION SERVICES, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
AIRBORNE GLOBAL SOLUTIONS, INC.
By:
Name: W. Joseph Payne
Title: Vice President & Secretary
[Signatures Continue on Following Pages]
[Signature Pages to Reaffirmation of Obligations Under Credit Documents]
AIRBORNE MAINTENANCE AND ENGINEERING SERVICES, INC.
By:
Name: W. Joseph Payne
Title: Vice President & Secretary
AIR TRANSPORT INTERNATIONAL LIMITED LIABILITY COMPANY
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
AMES MATERIAL SERVICES INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
AIR TRANSPORT INTERNATIONAL, INC.
By:
Name: James F. O’Grady
Title: President
CARGO AVIATION, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
[Signature Pages to Reaffirmation of Obligations Under Credit Documents]
CARGO HOLDINGS INTERNATIONAL, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
LGSTX FUEL MANAGEMENT, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
LGSTX SERVICES, INC.
By:
Name: W. Joseph Payne
Title: Secretary
AIR TRANSPORT SERVICES GROUP, INC.
By:
Name: W. Joseph Payne
Title: Chief Legal Officer & Secretary
GLOBAL FLIGHT SOURCE, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
[Signature Pages to Reaffirmation of Obligations Under Credit Documents]
LGSTX CARGO SERVICES, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
PEMCO WORLD AIR SERVICES, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
OMNI AIR INTERNATIONAL, LLC
By:
Name: Richard F. Corrado
Title: Vice President, Secretary
OMNI AVIATION LEASING, LLC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
T7 AVIATION LEASING, LLC
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
[Signature Pages to Reaffirmation of Obligations Under Credit Documents]
ADVANCED FLIGHT SERVICES, LLC
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
[End of Signatures]
[Signature Pages to Reaffirmation of Obligations Under Credit Documents]
Exhibit 10.3
Execution Version
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 24, 2019 (this “
Amendment
”), by and among CARGO AIRCRAFT MANAGEMENT, INC., a Florida corporation (the “
Borrower
”), AIR TRANSPORT SERVICES GROUP, INC., a Delaware corporation (“
Holdings
”), each of the financial institutions party hereto as “Lenders” and SUNTRUST BANK, in its capacity as Administrative Agent (in such capacity, the “
Administrative Agent
”).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Borrower, Holdings, the Lenders and the Administrative Agent are parties to that certain Second Amended and Restated Credit Agreement dated as of November 9, 2018 (the “
Credit Agreement
”); and
WHEREAS, the Borrower has requested certain amendments and other modifications to the terms and provisions of the Credit Agreement, including a request to provide Incremental Revolving Commitments in an aggregate principal amount of $100,000,000 and a one year extension of the Final Maturity Date;
WHEREAS, the Lenders party to this Amendment and the Administrative Agent are willing to so amend or otherwise modify such terms and provisions and to extend the Final Maturity Date, in each case, on and subject to the terms and conditions herein; and
WHEREAS, each of the Lenders listed on
Annex 1.1A
attached hereto (collectively, the “
Incremental Lenders
”) are willing to provide Incremental Revolving Commitments to the Borrower in the amounts set forth on such
Annex 1.1A
on and subject to the terms and conditions herein.
NOW, THEREFORE, for and in consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
1.
Defined Terms
. Capitalized terms which are used herein without definition and which are defined in the Credit Agreement shall have the same meanings herein as in the Credit Agreement.
2.
Amendments to Credit Agreement
.
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(a)
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Section 1.1. of the Credit Agreement is hereby amended by adding the following new
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definitions in the appropriate alphabetical order:
“
Amazon Investment Agreements
” shall mean, collectively, (i) that certain Investment Agreement dated as of March 8, 2016, by and between Holdings and Amazon.com, Inc. (“
Amazon
”) and (ii) that certain Investment Agreement dated
as of December 20, 2018, by and between Holdings and Amazon, each as in effect on the Second Amendment Effective Date.
“
Second Amendment Effective Date
” shall mean May 24, 2019.
(b)
The Credit Agreement is hereby further amended by deleting the defined terms “
Revolving Facility Final Maturity Date
” and “
Term Facility Final Maturity Date
” in Section 1.1. thereof and substituting in lieu thereof the following defined terms, respectively:
“
Revolving Facility Final Maturity Date
” shall mean May 30, 2024, or such later date to which the Revolving Facility Final Maturity Date may be extended pursuant to the terms hereof or, if earlier, the date on which the Revolving Commitments are terminated pursuant to
Section 10
.
“
Term Facility Final Maturity Date
” shall mean May 30, 2024, or such later date to which the Term Facility Final Maturity Date may be extended pursuant to the terms hereof or, if earlier, the date on which the Term Loans are declared immediately due and payable pursuant to
Section 10
.
(c)
The Credit Agreement is hereby further amended by deleting the definition of “
Change in Control
” in Section 1.1. thereof in its entirety and substituting in lieu thereof the following:
“‘
Change in Control
’ shall mean, at any time, (i) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) (a) shall have acquired, directly or indirectly, beneficial or record ownership (within the meaning of Rule 13d-3 under the 1934 Act) of 30% or more on a fully diluted basis of the total voting power represented by the Capital Stock of Holdings or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of Holdings (other than pursuant to proxies solicited by the board of directors of Holdings in connection with an election of directors); (ii) Holdings shall cease to beneficially own (as defined in Rule 13d-3 under the 1934 Act) 100% on a fully diluted basis of the Capital Stock of the Borrower; or (iii) during any period of 24 consecutive months, a majority of the members of the board of directors of Holdings cease to be composed of individuals who are Continuing Directors (as defined below);
provided
, however, that (x) an underwriter, initial purchaser, investor or holder of any Permitted Convertible Indebtedness or Permitted Warrant Transaction shall be deemed to not directly or indirectly acquire or own the shares of Capital Stock of Holdings issuable upon conversion or exercise, as applicable, thereof for the purposes of clause (i)(a) above unless and until such shares of Capital Stock are “beneficially owned” by such person within the meaning of Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder and (y) for purposes of determining whether a “Change of Control” has occurred under clause (i)(a) above, any Capital Stock of Holdings acquired and owned beneficially and of record by Amazon.com, Inc., or one or more of its direct or indirect wholly owned
domestic subsidiaries, pursuant to exercise of any or all of the Warrants (as defined in the Amazon Investment Agreements) issued pursuant to (and in accordance with) the Amazon Investment Agreements shall be disregarded. For purposes of this definition, “
Continuing Director
” shall mean, with respect to any period, any individuals (A) who were members of the board of directors of Holdings on the first day of such period, (B) whose election or nomination to that board was approved by individuals referred to in
clause (A)
above constituting at the time of such election or nomination at least a majority of that board, or (C) whose election or nomination to that board was approved by individuals referred to in
clauses (A)
and
(B)
above constituting at the time of such election or nomination at least a majority of that board.”
(d)
The Credit Agreement is hereby further amended by deleting the first sentence of Section 2.16(a) thereof in its entirety and substituting in lieu thereof the following:
“At least 45 days but not more than 65 days prior to the first, second, third, fourth and fifth Anniversary Date, provided that all of the conditions set forth in Section 6.2(a), (b) and (c) have been met in each case, the Borrower, by written notice to the Administrative Agent, may request an extension of the Term Facility Final Maturity Date and/or the Revolving Facility Final Maturity Date in effect at such time by one calendar year from the then scheduled applicable Final Maturity Date.”
(e)
The Credit Agreement is hereby further amended by deleting Section 5.2(a)(ii) thereof in its entirety and substituting in lieu thereof the following:
“(ii) The Borrower shall be required to repay the principal amount of the Term Loans A-1 on the last day of March, June, September and December of each year, commencing December 31, 2018 (each such repayment, a “
Term Loan A-1 Scheduled Repayment
”), each such installment on any such date to be in the amount set forth below opposite such date:
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“
Date
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Installment Amount
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December 31, 2018
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$3,750,000
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March 31, 2019
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$3,750,000
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June 30, 2019
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$3,750,000
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September 30, 2019
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$3,750,000
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December 31, 2019
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$3,750,000
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March 31, 2020
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$3,750,000
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June 30, 2020
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$3,750,000
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September 30, 2020
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$3,750,000
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December 31, 2020
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$3,750,000
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March 31, 2021
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$3,750,000
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June 30, 2021
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$3,750,000
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September 30, 2021
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$3,750,000
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December 31, 2021
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$3,750,000
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March 31, 2022
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$3,750,000
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“
Date
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Installment Amount
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June 30, 2022
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$3,750,000
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September 30, 2022
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$3,750,000
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The Term Loan A-1 Scheduled Repayments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in clause (b) immediately below.”
3.
Incremental Facility Amendment; Extension Amendment
.
The parties hereto intend that this Amendment shall constitute an Incremental Facility Amendment in connection with the Borrower’s increase in the aggregate amount of the Revolving Commitments in the amount of $100,000,000 pursuant to Section 2.14 of the Credit Agreement. Each of the Incremental Lenders hereby agrees to provide to the Borrower, subject to the terms and conditions herein (including satisfaction of each of the conditions set forth in Section 4 immediately below), an Incremental Revolving Commitment in the amount, for each such Incremental Lender, set forth in
Annex 1.1A
attached hereto corresponding to such Incremental Lender. Immediately after giving effect to this Amendment, the Total Revolving Commitments shall be equal to $645,000,000 and the Revolving Commitment of each Lender shall be as set forth on
Annex 1.1B
attached hereto corresponding to each such Lender. The Incremental Revolving Commitments contemplated by this Amendment shall be subject to the same terms and provisions (including pricing and final maturity) as the existing Revolving Commitments. The parties hereto acknowledge and agree that after giving effect to the Incremental Revolving Commitments contemplated by this Amendment, the aggregate amount of Incremental Commitments available to the Borrower is $300,000,000 and the Incremental Commitments Effective Date with respect to the Incremental Revolving Commitments contemplated by this Amendment shall be the Second Amendment Effective Date (immediately after the conditions set forth in Section 4 immediately below have been satisfied). The parties hereto further intend that this Amendment shall constitute an Extension Amendment in connection with the extension of the Final Maturity Date.
4.
Conditions Precedent to Effectiveness
.
The effectiveness of this Amendment is subject to the truth and accuracy of the warranties and representations set forth in Sections 5 and 6 below and receipt by the Administrative Agent of each of the following, each of which shall be in form and substance satisfactory to Administrative Agent:
(a) This Amendment, duly executed and delivered by the Borrower, Holdings, the Required Lenders, the Incremental Lenders and the Administrative Agent;
(b) A pro forma Compliance Certificate dated the Second Amendment Effective Date, after giving effect to the Revolving Commitment Increase contemplated by this Amendment;
(c) A certificate of the Borrower dated as of the Second Amendment Effective Date signed by an Authorized Officer of the Borrower certifying that, before and after giving effect to the Revolving Commitment Increase and the amendments contemplated by this Amendment (i) the representations and warranties contained in Section 7 of the Credit Agreement and the other Credit Documents are true and correct in all material respects on and as of the Second
Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, (ii) no Default or Event of Default exists before or after giving effect to the amendments contemplated by this Amendment and (iii) all conditions set forth in Section 6.2 of the Credit Agreement are satisfied as of the Second Amendment Effective Date;
(d) For the account of each Revolving Lender that has requested a Note (or a replacement Note) in respect of such Lender’s Revolving Commitment (after giving effect to the Revolving Commitment Increase contemplated by this Amendment), a Note evidencing such Lender’s Revolving Commitment (after giving effect to the Revolving Commitment Increase contemplated by this Amendment), duly executed by an Authorized Officer of the Borrower;
(e) A Reaffirmation of Obligations Under Credit Documents (the “
Reaffirmation
”) dated as of the Second Amendment Effective Date duly executed by each Credit Party, in the form of Exhibit I attached hereto;
(f) A legal opinion addressed to the Administrative Agent and each of the Lenders from Vorys, Sater, Seymour and Pease LLP, Greenberg Traurig, P.A. and Fennemore Craig, P.C., counsel to the Credit Parties, which opinions shall be dated the Second Amendment Effective Date and covering such matters relating to the Credit Parties, this Amendment, and the transactions contemplated hereby as the Administrative Agent or the Lenders shall reasonably request;
(g) A certificate, dated as of the Second Amendment Effective Date, signed by the Secretary (or Assistant Secretary) of each Credit Party in the form of Exhibit II attached hereto (together with certifications as to incumbency and signatures of such officers) with appropriate insertions and deletions, together with (i) copies of the articles or certificate of incorporation, the limited liability company agreement, the partnership agreement, any certificate of designation, the by-laws, or other organizational documents of each such Credit Party (or certifications from the applicable Credit Party that such documents have not been amended or otherwise modified in any way since the date such documents were delivered to the Administrative Agent (A) at the closing of the Credit Agreement or (B) when such Credit Party became a party to the Guarantee and Collateral Agreement), (ii) the resolutions, or such other administrative approval, of each such Credit Party referred to in such certificate in respect of the authorization and approval of the transactions contemplated by this Amendment and (iii) in the case of the certificate delivered by the Borrower, a statement that (1) all of the applicable conditions set forth in this Section 4 have been satisfied as of such date and (2) since December 31, 2018, there has not been any change, effect, event, occurrence, state of facts or development that has had or could reasonably be expected to have a Material Adverse Effect;
(h) Certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under applicable law, if any, or by any Contractual Obligation of each Credit Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated hereby, and such consents, approvals, authorizations, registrations, filings and
orders shall be in full force and effect and all applicable waiting periods shall have expired;
(i) The payment of all fees and other amounts due and payable on or prior to the effective date of this Amendment, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder or under any other agreement with the Administrative Agent or SunTrust Robinson Humphrey, Inc.;
(j) An Affidavit of Out-Of-State Execution and Delivery regarding the execution and delivery of the Notes and the other documents contemplated by this Amendment, duly executed by the Borrower and notarized; and
(k) Such other documents as the Administrative Agent may reasonably request.
To the extent that any notice was required to be delivered or otherwise provided prior to the Second Amendment Effective Date pursuant to the terms of the Credit Agreement in connection with any of the transactions contemplated by this Amendment, including any notices required pursuant to Section 2.14 and Section 2.16, and such notice was not so provided, the parties hereto waive the requirement of such notice.
5.
Representations
.
Each of the Borrower and Holdings represents and warrants to the Administrative Agent and the Lenders that:
(a)
Power and Authority
. Each of the Borrower and the other Credit Parties have the power and authority to execute, deliver and perform the terms and provisions of this Amendment and the Credit Agreement, as amended by this Amendment, and have taken all necessary corporate action to duly authorize the execution, delivery and performance of this Amendment. Each of this Amendment and the Credit Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation of the Borrower and Holdings enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles.
(b)
No Violation
. The execution, delivery and performance by the Borrower and the other Credit Parties of this Amendment, and compliance by them with the terms and provisions of the Credit Agreement, as amended by this Amendment: (i) will not contravene any provision of any law, statute, rule or regulation or any order, writ, injunction or decree of any court or federal, state or local Governmental Authority, (ii) will not conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien upon any of the property or assets of any Credit Party pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other agreement, contract or instrument, to which any Credit Party is a party or by which they or any of their property or assets is bound or to which they may be subject or (iii) will not violate any provision of the certificate or articles of incorporation or bylaws of the Borrower, Holdings or any other Credit Party.
(c)
Governmental Approvals; Consents
. No order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for those that have otherwise been obtained or made on or prior to the date of the effectiveness of this Amendment and which remain in full force and effect on such date), or exemption by, any Governmental Authority, and no consent, approval, authorization, registration, filing or order under any Contractual Obligation or applicable law, is required to authorize, or is required in connection with, (i) the execution, delivery and performance of this Amendment by the Borrower or Holdings or (ii) the legality, validity, binding effect or enforceability of the Credit Agreement, as amended by this Amendment, against the Borrower or Holdings.
(d)
No Default
. No Default or Event of Default has occurred and is continuing as of the date hereof and no Default or Event of Default will exist immediately after giving effect to this Amendment.
(e)
No Impairment
. The execution, delivery, performance and effectiveness of this Amendment will not: (a) impair the validity, effectiveness or priority of the Liens granted pursuant to any Credit Document, and such Liens continue unimpaired with the same priority to secure repayment of all of the applicable Obligations, whether heretofore or hereafter incurred, and (b) require that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens.
(f)
Credit Parties
. The list of signatories to the Reaffirmation represents a true, correct and complete list of all Persons who are required by the terms of the Credit Documents to be or to become a Credit Party as of the date hereof.
(g)
Solvency
. As of the Second Amendment Effective Date, on a pro forma basis after giving effect to the Revolving Commitment Increase contemplated hereby and to all Indebtedness incurred, and to be incurred under such increase, (x) the sum of the assets, at a fair market valuation, of each Credit Party and its respective Subsidiaries will exceed its debts, (y) no such Credit Party or its Subsidiaries will have incurred or intended to, or believes that it will, incur debts beyond its ability to pay such debts as such debts mature and (z) each such Credit Party and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its business. For purposes of this clause (e), “debt” means any liability on a claim, and “claim” means (i) right to payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured; or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
(h)
Disclosure
. As of the Second Amendment Effective Date, all information (other than projections, other forward-looking information and information of a general economic or industry-specific nature) that has been made available concerning the Credit Parties and/or the transactions contemplated by this Amendment prepared by, or on behalf of, the Borrower or Holdings or by any of their respective representatives or affiliates, and made available to any Lender or the Administrative Agent in connection with the transactions contemplated by this Amendment on or before the Second Amendment Effective Date, when taken as a whole, did
not, when furnished, contain any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made.
6.
Reaffirmation of Representations
. Each of the Borrower and Holdings hereby repeats and reaffirms all representations and warranties made to the Administrative Agent and the Lenders in the Credit Agreement and the other Credit Documents on and as of the date hereof (and after giving effect to this Amendment) with the same force and effect as if such representations and warranties were set forth in this Amendment in full (except to the extent that such representations and warranties relate expressly to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).
7.
No Further Amendments; Ratification of Liability
. Except as expressly amended or waived hereby, the Credit Agreement and each of the other Credit Documents shall remain in full force and effect in accordance with their respective terms, and the Lenders and the Administrative Agent hereby require strict compliance with the terms and conditions of the Credit Agreement and the other Credit Documents in the future. Each of the Borrower and Holdings hereby (i) restates, ratifies, confirms and reaffirms its respective liabilities, payment and performance obligations (contingent or otherwise) and each and every term, covenant and condition set forth in the Credit Agreement and the other Credit Documents to which it is a party, all as amended by this Amendment, and the liens and security interests granted, created and perfected thereby and (ii) acknowledges and agrees that this Amendment shall not in any way affect the validity and enforceability of any Credit Document to which it is a party, or reduce, impair or discharge the obligations of the Borrower or Holdings or the Collateral granted to the Administrative Agent and/or the Lenders thereunder. The Lenders’ agreement to the terms of this Amendment or any other amendment of the Credit Agreement or any other Credit Document shall not be deemed to establish or create a custom or course of dealing between the Borrower, Holdings or the Lenders, or any of them. This Amendment shall be deemed to be a “Credit Document” for all purposes under the Credit Agreement. After the effectiveness of this Amendment, each reference to the Credit Agreement in any of the Credit Documents shall be deemed to be a reference to the Credit Agreement as amended by this Amendment.
8.
Allocations of Revolving Commitments and Revolving Loans
.
The Administrative Agent, the Lenders and the Borrower agree that the Revolving Commitment of each of the Revolving Lenders immediately prior to the effectiveness of this Amendment shall be reallocated among the Revolving Lenders such that, immediately after the effectiveness of this Amendment in accordance with its terms and the Revolving Commitment Increase, the Revolving Commitment of each Revolving Lender shall be as set forth on
Annex 1.1B
attached hereto. In order to effect such reallocations, assignments shall be deemed to be made among the Revolving Lenders in such amounts as may be necessary, and with the same force and effect as if such assignments were evidenced by the applicable Assignment Agreements (but without the payment of any related assignment fee), and no other documents or instruments shall be required to be executed in connection with such assignments (all of which such requirements are hereby waived) other than the execution of any documents or instruments required for the effectiveness of this Amendment pursuant to Section 4 of this Amendment. Further, to effect the foregoing, each Revolving Lender agrees to make cash settlements in respect of any outstanding Revolving Loans, either directly or through the Administrative Agent, as the Administrative Agent may direct or approve, such that after giving effect to this Amendment, each Revolving Lender holds Revolving Loans equal to its Pro Rata Share (based on the Revolving Commitment of each Lender as set forth on
Annex 1.1B
attached hereto).
9.
Post Closing Covenant
. Holdings and the Borrower shall cause to be delivered to the Administrative Agent, on or before the date that is 15 days after the Second Amendment Effective Date (or such later date as the Administrative Agent shall agree), each of the following:
(i) a legal opinion from Daugherty, Fowler, Peregrin, Haught & Jenson, P.C., special FAA counsel to Holdings and its Subsidiaries, addressed to the Administrative Agent and each of the Lenders, such opinion to be in form and content satisfactory to the Administrative Agent (and in any event covering the matters described in clause (ii) immediately below and those set forth in the opinion delivered by such law firm in connection with the Credit Agreement);
(ii) evidence that FAA form “Aircraft Security Agreements” and/or “Amended and Restated Aircraft Security Agreements”, the substance of which shall be satisfactory to the Administrative Agent, covering the Aircraft and Engines included in the Collateral Pool have been filed with the FAA, and priority search certificates satisfactory to the Administrative Agent identifying the registrations made with the “International Registry” (as defined under the Cape Town Convention) with respect to the airframe of such Aircraft and its Engines and confirming that, except (x) with respect to Liens in existence on the Closing Date with respect to the airframe and Engines described on Annex 1.1(B) to the Credit Agreement or (y) as otherwise agreed by the Administrative Agent, no other registrations have been made with respect to such airframe or Engines that have not been subordinated to the registrations made in favor of the Administrative Agent or discharged; and
(iii) evidence that all other actions necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect and protect the security interests purported to be created by the Security Documents have been taken.
10.
Other Provisions
.
(a)
This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, and all counterparts, taken together, shall constitute but one and the same document.
(b)
The Borrower agrees to reimburse the Lenders and the Administrative Agent on demand for all reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by such parties in negotiating, documenting and consummating this Amendment, the other documents referred to herein, and the transactions contemplated hereby and thereby.
(c)
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(d)
THIS AMENDMENT CONSTITUTES THE ENTIRE CONTRACT AMONG THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL PREVIOUS DISCUSSIONS, CORRESPONDENCE, AGREEMENTS AND OTHER UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF.
(e)
In consideration of the amendments contained herein, each of the Borrower and Holdings hereby waives and releases each of the Lenders and the Administrative Agent from any and all known claims and defenses with respect to the Credit Agreement and the other Credit Documents and the transactions contemplated thereby.
(f)
Each of the Borrower and Holdings agrees to take all further actions and execute such other documents and instruments as the Administrative Agent may from time to time reasonably request to carry out the transactions contemplated by this Amendment, the Credit Documents and all other agreements executed and delivered in connection herewith.
(g)
THE PARTIES HERETO HAVE ENTERED INTO THIS AMENDMENT SOLELY TO AMEND TERMS OF THE CREDIT AGREEMENT. THE PARTIES DO NOT INTEND THIS AMENDMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS AMENDMENT AND THE TRANSACTION CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE BORROWER OR HOLDINGS UNDER OR IN CONNECTION WITH THE CREDIT AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS.
IN WITNESS WHEREOF, the Borrower, Holdings, the Lenders and the Administrative Agent have caused this Second Amendment to Second Amended and Restated Credit Agreement to be duly executed by their respective duly authorized officers and representatives as of the day and year first above written.
CARGO AIRCRAFT MANAGEMENT, INC.
By:
/s/ W. Joseph Payne
Name: W. Joseph Payne
Title: Vice President, Secretary
AIR TRANSPORT SERVICES GROUP, INC.
By:
/s/ Joseph C. Hete
Name: Joseph C. Hete
Title: President & Chief Executive Officer
[Signatures Continue on Following Pages]
SUNTRUST BANK, as Administrative Agent and as a Lender
By:
/s/ Chris Hursey
Name: Chris Hursey
Title: Director
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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BANK OF AMERICA, N.A., as a Lender
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By:
/s/ Gregg Bush
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Name: Gregg Bush
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Title: Senior Vice President
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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PNC BANK, NATIONAL ASSOCIATION, as a Lender
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By:
/s/ David C. Beckett
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Name: David C. Beckett
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Title: Senior Vice President
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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JPMORGAN CHASE BANK, N.A., as a Lender
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By:
/s/ Poonam N. Patel
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Name: Poonam N. Patel
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Title: Authorized Officer
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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REGIONS BANK, as a Lender
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By:
/s/ Joe Dancy
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Name: Joe Dancy
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Title: Senior Vice President
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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BRANCH BANKING AND TRUST COMPANY, as a Lender
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By:
/s/ Melinda Gulledge
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Name: Melinda Gulledge
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Title: Assistant Vice President
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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COMPASS BANK, as a Lender
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By:
/s/ Jeffrey Bork
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Name: Jeffrey Bork
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Title: Vice President
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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GOLDMAN SACHS BANK USA,
as a Lender
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By:
/s/ Ryan Durkin
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Name: Ryan Durkin
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Title: Authorized Signatory
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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CIBC BANK USA, as a Lender
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By:
/s/ Nick Fadel
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Name: Nick Fadel
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Title: Managing Director
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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THE NORTHERN TRUST COMPANY, as a Lender
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By:
/s/ John Di Legge
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Name: John Di Legge
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Title: Senior Vice President
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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ATLANTIC UNION BANK, as a Lender
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By:
/s/ deK Bowen
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Name: deK Bowen
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Title: Senior Vice President
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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ATLANTIC CAPITAL BANK, N.A., as a Lender
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By:
/s/ Richard A. Oglesby, Jr.
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Name: Richard A. Oglesby, Jr.
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Title: Executive Vice President
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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BOKF, NA, as a Lender
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By:
/s/ Jane P. Faulkenberry
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Name: Jane P. Faulkenberry
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Title: Senior Vice President
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[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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TRISTATE CAPITAL BANK, as a Lender
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By:
/s/ Ellen Frank
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Name: Ellen Frank
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Title: Senior Vice President
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[End of Signatures]
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
Annex 1.1A
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Incremental Lender
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Incremental Revolving Commitment
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SunTrust Bank
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$13,669,724.77
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Bank of America, N.A.
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$14,284,403.67
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PNC Bank, N.A.
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$14,284,403.67
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Regions Bank
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$11,706,422.02
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JPMorgan Chase Bank, N.A.
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$11,700,000.00
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Branch Banking and Trust Company
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$9,743,119.27
|
|
Compass Bank
|
$10,634,948.39
|
|
CIBC Bank USA
|
$3,908,256.88
|
|
Goldman Sachs Bank USA
|
$3,853,125.00
|
|
The Northern Trust Company
|
$1,500,000.00
|
|
Atlantic Union Bank
|
$2,752,293.58
|
|
BOKF, NA
|
$1,963,302.75
|
|
Total
|
$100,000,000
|
Annex 1.1B
|
|
|
|
|
|
Lender
|
Revolving Commitment
|
|
SunTrust Bank
|
$88,169,724.77
|
|
Bank of America, N.A.
|
$86,684,403.67
|
|
PNC Bank, N.A.
|
$86,684,403.67
|
|
Regions Bank
|
$75,506,422.02
|
|
JPMorgan Chase Bank, N.A.
|
$75,500,000.00
|
|
Branch Banking and Trust Company
|
$62,843,119.27
|
|
Compass Bank
|
$52,034,948.39
|
|
CIBC Bank USA
|
$25,208,256.88
|
|
Goldman Sachs Bank USA
|
$25,053,125.00
|
|
The Northern Trust Company
|
$18,500,000.00
|
|
Atlantic Union Bank
|
$17,752,293.58
|
|
BOKF, NA
|
$12,663,302.75
|
|
Atlantic Capital Bank, N.A.
|
$12,000,000.00
|
|
TriState Capital Bank
|
$6,400,000.00
|
|
Total
|
$645,000,000
|
EXHIBIT I
REAFFIRMATION OF OBLIGATIONS UNDER CREDIT DOCUMENTS
May 24, 2019
Reference is hereby made to (i) that certain Second Amended and Restated Credit Agreement dated as of November 9, 2018 among Cargo Aircraft Management, Inc. (the “
Borrower
”), Air Transport Services Group, Inc. (“
Holdings
”), the Lenders a party thereto and SunTrust Bank, as Administrative Agent (the “
Credit Agreement
”; capitalized terms used herein and not defined herein have the meanings ascribed to such terms in the Credit Agreement) and (ii) that certain Second Amendment to Second Amended and Restated Credit Agreement dated as of the date hereof (the “
Amendment
”) among the Borrower, Holdings, the Lenders party thereto and the Administrative Agent.
Each Credit Party acknowledges and reaffirms that (i) all liens and security interests granted to the Administrative Agent and the Lenders under the Security Documents remain in full force and effect and shall continue to secure the Obligations and (ii) the validity, perfection, enforceability or priority of such liens and security interests will not be impaired in any way by the Amendment.
Each of the undersigned Credit Parties hereby further reaffirms its continuing obligations owing to the Administrative Agent and the Lenders under each of the Credit Documents (including, without limitation, the guarantee obligations of each Guarantor under the Guarantee and Collateral Agreement) to which such Person is a party, and each Credit Party agrees that the amendments contained in the Amendment are solely to amend the terms of the Credit Agreement and do not in any way affect the validity and/or enforceability of any Credit Document, or reduce, impair or discharge the obligations of such Person thereunder.
Each of the undersigned Credit Parties hereby represents and warrants to the Administrative Agent and the Lenders that: (a) the execution and delivery by the Credit Parties of this Reaffirmation is within the power (corporate or otherwise) and authority of the Credit Parties, has been duly authorized and approved by all requisite action on the part of the Credit Parties, and does not and will not contravene, breach or conflict with any provision of applicable law or any of the charter or other organic documents of the Credit Parties, or any indenture, agreement, instrument or undertaking binding on the Credit Parties; (b) this Reaffirmation has been duly executed by the Credit Parties; and (c) the Credit Documents remain in full force and effect and constitute the legal, valid and binding obligations of the Credit Parties, enforceable in accordance with their terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting generally the enforcement of creditor's rights; and (d) all of the Obligations are absolute and unconditional, and such Obligations are not subject to any claim, defense, deduction, right of offset or otherwise.
THE CREDIT PARTIES DO NOT INTEND THE AMENDMENT NOR THE TRANSACTIONS CONTEMPLATED THEREBY TO BE, AND THE AMENDMENT AND THE TRANSACTION CONTEMPLATED THEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE CREDIT PARTIES
UNDER OR IN CONNECTION WITH THE CREDIT AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS.
This Reaffirmation shall be construed in accordance with and be governed by the law (without giving effect to the conflict of law principles thereof) of the State of New York.
[Signatures Appear on Following Page]
IN WITNESS WHEREOF, each of the undersigned has duly executed and delivered this Reaffirmation of Obligations under Credit Documents as of the date first written above.
CARGO AIRCRAFT MANAGEMENT, INC.
By:
Name: W. Joseph Payne
|
|
|
|
Title: Vice President, Secretary
|
|
ABX AIR, INC.
By:
Name: W. Joseph Payne
Title: Vice President, General Counsel & Secretary
LGSTX DISTRIBUTION SERVICES, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
AIRBORNE GLOBAL SOLUTIONS, INC.
By:
Name: W. Joseph Payne
Title: Vice President & Secretary
[Signatures Continue on Following Pages]
[Signature Pages to Reaffirmation of Obligations Under Credit Documents]
AIRBORNE MAINTENANCE AND ENGINEERING SERVICES, INC.
By:
Name: W. Joseph Payne
Title: Vice President & Secretary
AIR TRANSPORT INTERNATIONAL LIMITED LIABILITY COMPANY
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
AMES MATERIAL SERVICES INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
AIR TRANSPORT INTERNATIONAL, INC.
By:
Name: James F. O’Grady
Title: President
CARGO AVIATION, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
[Signature Pages to Reaffirmation of Obligations Under Credit Documents]
CARGO HOLDINGS INTERNATIONAL, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
LGSTX FUEL MANAGEMENT, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
LGSTX SERVICES, INC.
By:
Name: W. Joseph Payne
Title: Secretary
AIR TRANSPORT SERVICES GROUP, INC.
By:
Name: W. Joseph Payne
Title: Chief Legal Officer & Secretary
GLOBAL FLIGHT SOURCE, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
[Signature Pages to Reaffirmation of Obligations Under Credit Documents]
LGSTX CARGO SERVICES, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
PEMCO WORLD AIR SERVICES, INC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
OMNI AIR INTERNATIONAL, LLC
By:
Name: Richard F. Corrado
Title: Vice President, Secretary
OMNI AVIATION LEASING, LLC.
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
[Signature Pages to Reaffirmation of Obligations Under Credit Documents]
T7 AVIATION LEASING, LLC
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
ADVANCED FLIGHT SERVICES, LLC
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
TRIFACTOR SOLUTIONS, LLC
By:
Name: W. Joseph Payne
Title: Vice President, Secretary
[End of Signatures]
[Signature Pages to Reaffirmation of Obligations Under Credit Documents]
EXHIBIT II
[FORM OF SECTRETARY’S CLOSING CERTIFICATE]
I, the undersigned, [Assistant] Secretary of [
Name of Credit Party
], a [_______________] organized and existing under the laws of the State of _______________ (the “
Company
”), do hereby certify on behalf of the Company that:
1.
This Certificate is being delivered on May 24, 2019 and is furnished pursuant to that certain Second Amendment to Second Amended and Restated Credit Agreement dated as of the date hereof, among Cargo Aircraft Management, Inc., a Florida corporation (the “
Borrower
”), Air Transport Services Group, Inc., a Delaware corporation, the several Lenders from time to time party thereto and SunTrust Bank, as Administrative Agent for the Lenders (such Credit Agreement, as in effect on the date of this Certificate, being herein called the “
Credit Agreement
”). Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Credit Agreement.
2.
The following named individuals are duly qualified and acting elected or appointed officers of the Company, and each holds the office of the Company set forth opposite his or her name, each of whom is authorized to sign the [Amendment/Reaffirmation] on behalf of the Company. The signature written opposite the name and title of each such officer is his or her genuine signature.
|
|
|
|
|
|
|
Name
1
|
Office
|
Signature
|
|
________________
|
________________
|
______________________
|
|
________________
|
________________
|
______________________
|
|
________________
|
________________
|
______________________
|
3.
Attached hereto as Exhibit A is a true and complete copy of the [Charter Document] of the Company, including all amendments thereto, as filed in the Office of the Secretary of State of the State of __________ (the “
Secretary of State
”), which constitutes the [Charter Document] of the Company as presently in effect (the “[
Articles of ___________
]”); no amendment to the Articles of ______________ is pending or contemplated, and there are no proceedings, pending or contemplated, for the merger, consolidation, conversion, liquidation or dissolution of the Company; and no steps have been or are being taken to appoint an administrator, receiver, liquidator or analogous person or body to wind up or dissolve the Company
2
.
4.
Attached hereto as Exhibit B is a true and correct copy of the [By-Laws] [limited liability company agreement] of the Company which was duly adopted and is in full force and effect on the date hereof
3
.
1 Include name, office and signature of each officer who will sign any Credit Document, including the officer who will sign the certification at the end of this Certificate or related documentation.
2 May include alternate statement that documents have not been amended, changed or otherwise modified in any way since the Closing Date.
3 May include alternate statement that such documents have not been amended, changed or otherwise modified in any way since the Closing Date.
5.
Attached hereto as Exhibit C is a true and correct copy of resolutions authorizing the execution, delivery and performance of the [Amendment/Reaffirmation], which [have][has] been duly adopted by unanimous written consent of the members of the Company, and said resolutions have not been rescinded, amended or modified, are in full force and effect on the date hereof, and have been duly filed with the minutes of the proceedings of the members
4
.
6.
Attached hereto as Exhibit D is a certificate of good standing from the Secretary of State of the jurisdiction of incorporation or organization of the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4 In the case of the Borrower only, this Certificate shall also state that: (1) all of the applicable conditions set forth in this Section 4 of the Amendment have been satisfied and (2) since December 31, 2018, there has not been any change, effect, event, occurrence, state of facts or development that has had or could reasonably be expected to have a Material Adverse Effect.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the date first written above.
[COMPANY]
_________________________________
_____________________, Secretary
Exhibit A
Articles of ______________
Exhibit B
[By-Laws][Limited Liability Company Agreement]
Exhibit C
Resolutions
Exhibit D
Good Standing Certificate
