EXHIBIT 10.9.2
SECOND AMENDMENT AGREEMENT (MSN 30808)
Dated as of January 31, 2005
Between
GENERAL ELECTRIC CAPITAL CORPORATION,
as Sublessor
and
POLAR AIR CARGO, INC.,
as Sublessee
in respect of
SUBLEASE AGREEMENT
Dated as of October 24, 2001
Pertaining to
One Boeing 747-46NF Aircraft
Manufacturer's Serial Number 30808 and
United States Registration Number N450PA
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As set forth in Section 21 of the Sublease, Sublessor has assigned to the
Owner Trustee (as defined in the Sublease) certain of its right, title and
interest in and to the Sublease, and the Owner Trustee has further assigned such
right, title and interest to the Indenture Trustee (as defined in the Sublease).
To the extent, if any, that this Second Amendment Agreement constitutes chattel
paper (as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction) no security interest in this Second Amendment
Agreement may be created through the transfer or possession of any counterpart
other than the original executed counterpart, which shall be identified as the
counterpart containing the receipt therefor executed by the Indenture Trustee on
the signature page thereof.
SECOND AMENDMENT AGREEMENT (MSN 30808)
This SECOND AMENDMENT AGREEMENT (MSN 30808) (this "AGREEMENT"),
dated as of January 31, 2005, between GENERAL ELECTRIC CAPITAL CORPORATION, a
corporation organized and existing pursuant to the laws of the State of Delaware
("SUBLESSOR"), and POLAR AIR CARGO, INC., a corporation organized and existing
pursuant to the laws of the State of California ("SUBLESSEE").
W I T N E S S E T H:
WHEREAS, Sublessor and Sublessee are parties to the Sublease (such
term and all other capitalized terms used in these recitals but not defined in
these recitals having the meaning ascribed in Section 1 hereof), under and
pursuant to which Sublessor subleased to Sublessee, and Sublessee subleased from
Sublessor, the aircraft and the engines described therein (the Sublease and
such aircraft and engines being described on ANNEX I attached hereto);
WHEREAS, Sublessor and Sublessee desire to amend the Sublease in
order to change Sublessee's ability to purchase the Aircraft on the EBO Date
from an amount equal to the EBO Amount to an amount equal to the greater of fair
market sales value of the Aircraft and the EBO Amount; and
WHEREAS, concurrently with the execution and delivery hereof, the
Guarantor is executing and delivering an acknowledgement, consent and agreement
(MSN 30808) in the form attached as Annex II hereto.
NOW THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Sublessor and Sublessee agree as follows:
SECTION 1. DEFINITIONS.
Unless otherwise specifically defined herein, all capitalized terms
used herein have the meanings stated in the Sublease, as amended.
SECTION 2. AMENDMENT OF THE SUBLEASE. The Sublease is hereby amended
as follows:
(a) AMENDMENT OF SECTION 19(b). The first paragraph of Section 19(b)
of the Sublease is amended to read in its entirety as follows:
(b) PURCHASE OPTIONS. Sublessee shall have the option, (i)
upon at least thirty (30) days irrevocable prior written notice to
Sublessor prior to the EBO Date with respect to the purchase option
set forth in clause (1) below and (ii) upon at least two hundred
twenty-five (225) days irrevocable prior written notice to Sublessor
prior to the relevant purchase date (each a "PURCHASE OPTION DATE")
with respect to the purchase options set forth in CLAUSES (2) and
(3) below,
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to terminate this Sublease and to purchase the Aircraft: (1) on an
EBO Date, for a purchase price equal to the greater of fair market
sales value of the Aircraft on such date and the EBO Amount set
forth on EXHIBIT D; (2) on the last Business Day of the Basic Term
for a purchase price equal to the greater of fair market sales value
of the Aircraft on such date and the EBO Amount set forth on EXHIBIT
D; or (3) on the last Business Day of any Renewal Term or
Additional Renewal Term for a purchase price equal to the greater of
the fair market sales value of the Aircraft on such date and the EBO
Amount set forth on EXHIBIT D; provided that Sublessee shall not be
entitled to exercise any of the foregoing purchase options at any
time a Sublease Event of Default of the type described in
SECTIONS 14(e) or (f) has occurred and is continuing, in each case
unless Sublessee has obtained a final, non-appealable order from the
applicable bankruptcy court or other court having jurisdiction over
the applicable proceeding authorizing the purchase of the Aircraft
and the payment of the full purchase price therefor. For the
avoidance of doubt, if a Sublease Event of Default or Default exists
under SECTION 14(a) or 14(b) hereof, Sublessee may not exercise the
foregoing purchase options unless at or prior to the time it
purchases the Aircraft, Sublessee pays all amounts due to Sublessor
under the Operative Documents, thereby curing any such SECTION 14(a)
or 14(b) Default or Sublease Event of Default.
(B) AMENDMENT OF SECTION 19(c). Section 19(c) of the Sublease is
amended by changing the first sentence thereof to read in its entirety as
follows:
(c) VALUATION. At any time not earlier than three
hundred sixty-five (365) days prior to the date on which Sublessee
may purchase the Aircraft pursuant to SECTION 19(b)(1), (b)(2) or
(b)(3) hereof or renew this Sublease pursuant to SECTION 19(a)(1)
hereof, Sublessee may deliver to Sublessor a revocable notice of its
intent to exercise its renewal option or purchase option.
SECTION 3. FURTHER ASSURANCES; EXPENSES. Each of Sublessor and
Sublessee agrees to do such further acts and things or cause to be performed
such further acts and things, including, without limitation, execute and
deliver, or cause to be executed and delivered, such agreements and other
documents, as the other party hereto shall reasonably require or deem advisable
to effectuate the purposes of this Agreement or to better assure or confirm its
rights and remedies hereunder or thereunder. Sublessee agrees to pay all direct,
reasonable, out-of-pocket expenses of Sublessor incurred pursuant to this
Section 3 or otherwise in connection with the preparation, execution and
delivery of this Amendment.
SECTION 4. SUBLEASE. Except as amended by this Amendment, the
Sublease remains unchanged and in full force and effect,
SECTION 5. MISCELLANEOUS. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
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render unenforceable such provision in any other jurisdiction. No term or
provision of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by Sublessor and Sublessee.
The section and paragraph headings in this Agreement are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof and all references herein to numbered sections, unless
otherwise indicated, are to sections of this Agreement. This Agreement shall
inure to the benefit of, and shall be binding upon, Sublessor and Sublessee and
their respective successors and permitted assigns. All references herein to a
Person shall mean and include any successor to such Person. This Agreement, the
Amendment Agreement, the Tax Indemnification Agreement Amendment, the
Restructuring Letter Agreement and the Operative Documents (i) constitute the
entire agreement of the parties hereto with respect to the subject matter hereof
and thereof, (ii) supersede all prior and contemporaneous understandings and
agreements of such parties with respect to such subject matter and (iii) may not
be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties hereto with respect to such subject matter and there
are no oral agreements of the parties hereto with respect to such subject
matter. THIS AGREEMENT HAS BEEN DELIVERED IN THE STATE OF NEW YORK AND SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized.
GENERAL ELECTRIC CAPITAL
CORPORATION, as Sublessor
By: /s/ Norman Liu
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Name: Norman Liu
Title: Vice President
POLAR AIR CARGO, INC.,
as Sublessee
By: /s/ Dorinda Pannozzo
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Name: Dorinda Pannozzo
Title: Assistant Treasurer
[Signature Page to Second Amendment Agreement (MSN 30808)]
ANNEX I
to
Second Amendment Agreement
(MSN 30808)
DESCRIPTION OF SUBLEASE
Sublease Agreement, dated as of October 24, 2001, between General
Electric Capital Corporation, as sublessor, and Polar Air Cargo, Inc., as
sublessee, as supplemented by Sublease Supplement No. 1, dated November 19,2001,
recorded by the Federal Aviation Administration on December 7, 2001 as
Conveyance No. X144235, as amended by Amendment Agreement (MSN 30808), dated as
of August 1, 2003 between General Electric Capital Corporation, as sublessor,
and Polar Air Cargo, Inc., as sublessee, recorded by the Federal Aviation
Administration on January 13, 2004 as Conveyance No. SS020609.
DESCRIPTION OF AIRCRAFT
One Boeing 747-46NF Aircraft bearing Manufacturer's Serial No. 30808
and United States Registration No. N450PA.
Four General Electric Model CF6-80C2-B5F Engines bearing
Manufacturer's Serial Nos. 706198, 706199, 706200 and 706201 (each of which has
750 or more rated takeoff horsepower or the equivalent of such horsepower).
ANNEX II
to
Second Amendment Agreement
(MSN 30808)
FORM OF
ACKNOWLEDGMENT, CONSENT AND AGREEMENT (MSN 30808)
ATLAS AIR WORLDWIDE HOLDINGS, INC., a Delaware corporation
("GUARANTOR"), with reference to the Guaranty, dated as of November 19, 2001
(the "GUARANTY"), made by Guarantor in favor of General Electric Capital
Corporation and its successors and assigns ("GUARANTEED PARTY"), relating to the
Sublease Agreement (MSN 30808), dated as of October 24, 2001 between General
Electric Capital Corporation, as sublessor ("SUBLESSOR"), and Polar Air Cargo,
Inc., as sublessee ("SUBLESSEE"), as amended by that certain Amendment Agreement
(MSN 30808), dated as of August 1, 2003, between Sublessor and Sublessee (as so
amended, the "SUBLEASE"; capitalized terms used herein but not defined herein
having the meanings stated or ascribed in the Sublease) and to the other
Operative Document, DOES HEREBY (in each case, for the benefit of the Guaranteed
Party and, in each case (except to the extent otherwise provided herein),
without limitation of any term or provision of the Guaranty):
(i) ACKNOWLEDGE receipt (pursuant to and as required by the
Guaranty) of notice of the amendment of the Sublease pursuant to
Second Amendment Agreement (MSN 30808), dated as of January ____,
2005, between Sublessor and Sublessee (the "SUBLEASE SECOND
AMENDMENT");
(ii) CONSENT to (a) the terms and provisions of the Sublease
Second Amendment, (b) the execution, delivery and performance
thereof by Sublessor and Sublessee, and (c) the amendment of the
Sublease pursuant thereto and on the terms provided therein;
(iii) AGREE that, from and after the execution and delivery of
the Sublease Second Amendment, (a) any reference in the Guaranty,
the Sublease or any other Operative Document, or otherwise by
Guarantor, to the Sublease shall mean the Sublease, as amended by
the Sublease Second Amendment, and (b) any reference by Guarantor
or Guaranteed Party to the Guaranty shall mean the Guaranty, as
supplemented hereby; and
(iv) AGREE that, except as supplemented hereby, the Guaranty
shall remain in full force and effect as in existence on the date
hereof and is hereby ratified and confirmed in all respects.
[Signature Page Follows]
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IN WITNESS WHEREOF, Guarantor has caused this Acknowledgment,
Consent and Agreement to be executed and delivered as of this day of January
2005.
ATLAS AIR WORLDWIDE HOLDINGS, INC.
BY:
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Name:
Title:
[Signature Page to Acknowledgment, Consent and Agreement (MSN 30808)]
SCHEDULE TO EXHIBIT 10.9.2
The agreements listed below are substantially identical to this exhibit and are
not being filed separately as exhibits pursuant to instruction 2 to Regulation
S-K, Item 601.
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REGISTRATION MANUFACTURER'S SERIAL SUBLESSEE SUBLESSOR AGREEMENT
NUMBER NUMBER(S)
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N451PA 30809 Polar Air General Electric Second Amendment Agreement
Cargo, Inc. Capital Corporation dated January 31, 2005 between
General Electric Capital
Corporation, as Sublessor and
Polar Air Cargo, Inc. as
Sublessee in respect of
Sublease dated October 24,
2001 with respect to Aircraft
N451PA
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N452PA 30810 Polar Air General Electric Second Amendment Agreement
Cargo, Inc. Capital Corporation dated January 31, 2005 between
General Electric Capital
Corporation, as Sublessor and
Polar Air Cargo, Inc. as
Sublessee in respect of
Sublease dated October 24,
2001 with respect to Aircraft
N452PA
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N453PA 30811 Polar Air General Electric Second Amendment Agreement
Cargo, Inc. Capital Corporation dated January 31, 2005 between
General Electric Capital
Corporation, as Sublessor and
Polar Air Cargo, Inc. as
Sublessee in respect of
Sublease dated October 24,
2001 with respect to Aircraft
N453PA
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