EXHIBIT 10.4.2
Federal Aviation Administration
Date __02/08/2005___ Time __2:13 PM__
Conveyance Number ______D001034_______
By ___________________________________
Formerly N491MC_______________________
AMENDMENT NO. 1 TO LEASE AGREEMENT
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This AMENDMENT NO. 1 to Lease Agreement (this "AMENDMENT"),
dated as of July 27, 2004, between XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION (formerly known as FIRST SECURITY BANK, NATIONAL ASSOCIATION), not
in its individual capacity except as expressly provided herein, but solely as
Owner Trustee ("LESSOR" or "OWNER TRUSTEE"), and ATLAS AIR, INC., a Delaware
corporation ("LESSEE"), amends that certain Original Lease (as defined below).
All capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Lease (as defined below).
W I T N E S S E T H :
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WHEREAS, Xxxxxx and Lessee are parties to that certain Lease
Agreement, dated as of July 29, 1998, supplemented by Lease Supplement No. 1
dated July 29, 1998, both recorded by the FAA on July 30, 1998, as Conveyance
No. P16372 (collectively, the "ORIGINAL LEASE"), pursuant to which Xxxxxx has
leased from Lessor the Aircraft as defined in the Original Lease (the Original
Lease, as amended by this Amendment, the "LEASE").
WHEREAS, as contemplated by the Restructure Agreement (the
"RESTRUCTURE AGREEMENT"), dated as of July 27, 2004, by and among Lessee, Lessor
and the other parties named therein, all such parties desire that Lessee and
Lessor enter into this Amendment to set forth the manner in which the
restructuring of the terms of payment by Lessee of certain installments of Basic
Rent payable under the Original Lease and the agreements with respect to other
amendments and other matters pertaining to the Original Lease are to be
definitively documented and implemented.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. AMENDMENTS TO ANNEX A TO THE ORIGINAL LEASE. Annex
A to the Original Lease is hereby amended as follows:
(i) ADDITIONS. The following definitions are hereby added
to Annex A to the Original Lease in appropriate alphabetical order:
"ACCELERATION" is defined in Section 14.6 of the Lease.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person
outstanding on the date on which such Person becomes a Subsidiary or
Indebtedness assumed in connection with the acquisition of assets from
any Person.
"ACTION EVENT" means (a) any acceleration or other exercise of
rights or remedies by Mortgagee as assignee of Lessor as a result of a
Cross Default under Section 15.1.7(a) of the Lease, or (b) the giving
of instructions or directions by the Controlling Certificateholders to
exercise any such rights or remedies.
"ADDITIONAL INDEBTEDNESS INCURRENCE CONDITIONS" means:
(a) no Lease Default or Lease Event of Default shall have
occurred and be continuing,
(b) the Fixed Charge Coverage Ratio determined as of the
last day of the last fiscal quarter for which financial statements are
then available is greater than 1.25 to 1.00 and
(c) the aggregate principal amount of Indebtedness
incurred pursuant to Section 8.4.1(b) does not exceed $50,000,000 at
any one time outstanding.
If, before the occurrence of an Action Event, a Bank Debt
Refinancing occurs, and the documents executed in connection with such
Bank Debt Refinancing contain a restriction on the incurrence by Lessee
of indebtedness (as defined under such Bank Debt Refinancing), this
definition and the definition of "Indebtedness" for purposes of this
definition shall thereafter be deemed to have been amended to provide
for the same restriction on the incurrence of indebtedness and the same
definition of indebtedness as is provided in the documents executed in
connection with such Bank Debt Refinancing (and such lenders shall be
"Bank Lenders" for purposes of the Lease and such documents executed in
connection with such Bank Debt Refinancing shall be "Bank Lender
Documents" for purposes of the Lease). If such Bank Debt Refinancing is
with more than one lender under separate Bank Lender Documents, this
definition and the definition of "Indebtedness" for purposes of this
definition shall thereafter be deemed to have been amended to provide
for the same restriction on the incurrence of indebtedness and the same
definition of indebtedness as are provided in those of such Bank Lender
Documents which evidence the highest dollar amount of such
indebtedness.
"ADDITIONAL LEASE INCURRENCE CONDITIONS" means
(a) no Lease Default or Lease Event of Default shall have
occurred and be continuing,
(b) the Fixed Charge Coverage Ratio determined as of the
last date of the last fiscal quarter for which financial statements are
then available is greater than 1.25 to 1.00; PROVIDED, HOWEVER, that
Parent or any of its Subsidiaries may enter into any lease if the cash
scheduled rental payments required to be made under all leases entered
into after the Restructure Agreement Execution Date (including, without
limitation, the lease proposed to be entered into) do not exceed
$15,000,000 during any fiscal year, without having to comply with this
clause (b), and
(c) the aggregate principal amount of Capital Leases
entered into pursuant to Section 8.4.1(c) does not exceed $50,000,000
at anyone time outstanding.
If, before the occurrence of an Action Event, a Bank Debt Refinancing
occurs, and the documents executed in connection with such Bank Debt
Refinancing contain a restriction
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on the entering into by Lessee of leases or subleases, this definition
shall thereafter be deemed to have been amended to provide for the same
restriction on the entering by Lessee into of leases or subleases as is
provided in the documents executed in connection with such Bank Debt
Refinancing (and such lenders shall be "Bank Lenders" for purposes of
the Lease and such documents executed in connection with such
refinancing shall be "Bank Lender Documents" for purposes of the
Lease). If such Bank Debt Refinancing is with more than one such lender
under separate Bank Lender Documents, this definition shall thereafter
be deemed to have been amended to provide for the same restriction on
the entering into of leases or subleases by Lessee as is provided in
those of such Bank Lender Documents which evidence the highest dollar
amount of such indebtedness.
"AFL III" means Atlas Freighter Leasing III, Inc., a Delaware
corporation, a subsidiary of Parent, the sole business of which is the
ownership of the AFL III Equipment and the leasing of the AFL III
Equipment to Lessee pursuant to the AFL III Leases and obtaining
financing with respect thereto.
"AFL III EQUIPMENT" is defined in Schedule 1 to the Lease.
"AFL III FINANCING AGREEMENT" means that certain Credit
Agreement dated as of April 25, 2000, and amended and restated as of
July 27, 2004, by and among AFL III, the lenders party thereto and
Deutsche Bank Trust Company Americas, as agent, as such agreement may
be amended, amended and restated, modified and/or supplemented from
time to time in accordance with the terms thereof.
"AFL III LEASES" means one or more triple net leases by and
between Lessee and AFL III with respect to the AFL III Equipment, as
lessor thereunder, as such leases may be amended, amended and restated,
modified and/or supplemented from time to time.
"ALLONGES" is defined in the definition of "Equipment Notes".
"AMENDMENT NO. 1 TO LEASE AGREEMENT" or "AMENDMENT" means that
certain Amendment No. 1 to Lease Agreement, dated as of July 27, 2004,
between Lessor and Lessee in connection with the Lease.
"APPRAISAL" is defined in the Intercreditor Agreement.
"ASSUMPTIONS" is defined in Section 8.4.4(e) of the Lease.
"AVAILABILITY" means at any time, the maximum additional
amount available to be borrowed by Xxxxxx as direct advances under any
Indebtedness at such time taking into account any applicable borrowing
base or similar requirements and limitations at such time, PROVIDED
that all of the conditions to borrowing (other than the delivery of a
notice of borrowing) required pursuant to such Indebtedness are
satisfied at such time.
"BANK DEBT REFINANCING" means any unsecured or secured
refinancing of the indebtedness owed to the Bank Lenders under the Bank
Lender Documents (i) with institutional lenders or (ii) with the
proceeds of a private or public debt offering to lenders,
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which institutional lenders or lenders are not Affiliates of Lessee or
Parent and which refinancing pays such indebtedness in full (or any
such refinancing the indebtedness of which is subsequently refinanced
with Bank Debt Refinancing).
"BANK LENDER DOCUMENTS" means the Credit Agreement and the
documents executed in connection therewith and the documents executed
in connection with any subsequent extension or renewal thereof or any
Bank Debt Refinancing.
"BANK LENDERS" means lenders under the Bank Lender Documents.
"BANKRUPTCY COURT" means the United States Bankruptcy Court
for the Southern District of Florida, Miami Division.
"BOEING" means Boeing Capital Corporation and its Affiliates.
"BOEING DOCUMENTS" means that certain lease agreement listed
on Schedule 1 to the Lease opposite the heading "Boeing Documents" and
the documents executed in connection therewith other than that certain
Supplemental Agreement, dated as of June 1, 2002, between the owner
participant named therein and Xxxxxx, as amended by Amendment No. 1 to
Supplemental Agreement dated as of October 31, 2003, which relates
solely to the tax indemnity agreement between such owner participant
and Lessee and the general tax indemnity agreement among the parties to
such transaction.
"BUSINESS PLAN" means Debtors' business plan filed with the
Securities and Exchange Commission on Form 8-K on December 12, 2003 (as
amended and modified) and attached to the Disclosure Statement as
Exhibit G.
"CAPITAL LEASE" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP, is accounted for as a capital lease on
the balance sheet of that Person.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CHAPTER 11 CASE" means the bankruptcy case commenced by
Lessee under Chapter 11 of Title 11 of the Bankruptcy Code on January
30, 2004 in the United States Bankruptcy Court for the Southern
District of Florida.
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, the sum
of the amounts for such period of (i) Consolidated Net Income, (ii)
Consolidated Interest Expense, (iii) provisions for taxes based on
income, (iv) total depreciation expense, (v) total amortization
expense, (vi) other non-cash items reducing Consolidated Net Income
LESS other non-cash items increasing Consolidated Net Income, all of
the foregoing as determined on a consoidated basis for Parent and its
Subsidiaries in conformity with GAAP and, (vii) for all periods through
the first anniversary of the Restructure Agreement Execution Date,
expenses incurred in connection with the Plan of Reorganization,
including professional fees and expenses, severance, key employee
retention plans, executory contract and lease rejection claims, asset
write downs and any other such costs determined by Xxxxxx' independent
accountants to be reported as "Reorganization Costs".
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"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
sum of (i) the aggregate of all expenditures (whether paid in cash or
other consideration or accrued as a liability and including that
portion of Capital Leases which is capitalized on the consolidated
balance sheet of Parent and its Subsidiaries) by Parent and its
Subsidiaries during that period that, in conformity with GAAP, are
included in "additions to property, plant or equipment" or comparable
items reflected in the consolidated statement of cash flows of Parent
and its Subsidiaries plus (ii) to the extent not covered by clause (i)
of this definition, the aggregate of all expenditures by Parent and
its Subsidiaries during that period to acquire (by purchase or
otherwise) the business, property or fixed assets of any Person, or the
stock or other evidence of beneficial ownership of any Person that, as
a result of such acquisition, becomes a Subsidiary of Parent.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of
the amounts for such period (without duplication) of (i) Consolidated
Interest Expense for such period paid in cash, (ii) Consolidated Rental
Payments for such period paid in cash, (iii) Consolidated Capital
Expenditures paid in cash for such period (other than Consolidated
Capital Expenditures funded with the proceeds of sales of assets), (iv)
any Restricted Junior Payments actually made during such period and (v)
the scheduled principal amount of all amortization payments with
respect to the Bank Lender Documents (assuming for this purpose that
the maximum amount of principal deferral permitted pursuant to Section
2.4A(ii) of the AFL III Financing Agreement shall have occurred
(whether or not the conditions thereto shall have been satisfied)) and
other Indebtedness of Parent and its Subsidiaries required to be made
during such period (as determined on the first day of such period).
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
net interest expense (to be computed by reducing interest expense by
the amount of interest income) (including that portion attributable to
Capital Leases in accordance with GAAP and capitalized interest) of
Parent and its Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of Parent and its Subsidiaries, including,
without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing and net costs under Interest Rate Agreements and Currency
Agreements.
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or loss) of Parent and its Subsidiaries on a consolidated basis
for such period taken as a single accounting period determined in
conformity with GAAP; PROVIDED that there shall be excluded (i) the
income (or loss) of any Person (other than a Subsidiary of Parent) in
which any other Person (other than Parent or any of its Subsidiaries)
has a joint interest, except to the extent of the amount of dividends
or other distributions actually paid to Parent or any of its
Subsidiaries by such Person during such period, (ii) the income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary
of Parent or is merged into or consolidated with Parent or any of its
Subsidiaries or that Person's assets are acquired by Parent or any of
its Subsidiaries, (iii) the income of any Subsidiary of Parent to the
extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation
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applicable to that Subsidiary, (iv) any after-tax gains or losses
attributable to a sale of assets or returned surplus assets of any
pension plan, and (v) (to the extent not included in clauses (i)
through (iv) above) any net extraordinary gains or net non-cash
extraordinary losses.
"CONSOLIDATED RENTAL PAYMENTS" means, for any period, the
aggregate amount of all rents with respect to aircraft and engines paid
or payable by Parent and its Subsidiaries on a consolidated basis
during that period under all Operating Leases to which Parent or any of
its Subsidiaries is a party as lessee (net of sublease income other
than income from ACMI Contracts). For the avoidance of doubt, (x) all
rental payments to AFL III shall not be included in Consolidated Rental
Payments and (y) payments in respect of Capital Leases shall not be
included in Consolidated Rental Payments.
"CONSULTANT" means Xxxxx Xxxxxxxxx & Xxxxxxx, Inc. or Avitas,
Inc., or such other aircraft professional designated from time to time
by Mortgagee.
"CONSULTANT COSTS AND EXPENSES" is defined in Section 8.4.4(h)
of the Lease.
"CONTINGENT OBLIGATIONS" or "CONTINGENT OBLIGATION" means, as
applied to any Person, any direct or indirect liability, contingent or
otherwise, of that Person (i) with respect to any Indebtedness, lease,
dividend or other obligation of another if the primary purpose or
intent thereof by the Person incurring the Contingent Obligation is to
provide assurance to the obligee of such obligation of another that
such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders
of such obligation will be protected (in whole or in part) against loss
in respect thereof, (ii) with respect to any letter of credit issued
for the account of that Person or as to which that Person is otherwise
liable for reimbursement of drawings, or (iii) under Interest Rate
Agreements and Currency Agreements. Contingent Obligations shall
include, without limitation, (a) the direct or indirect guaranty,
endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another, (b) the
obligation to make take-or-pay or similar payments if required
regardless of nonperformance by any other party or parties to an
agreement, and (c) any liability of such Person for the obligation of
another through any agreement (contingent or otherwise) (X) to
purchase, repurchase or otherwise acquire such obligation or any
security therefore, or to provide funds for the payment or discharge of
such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (Y) to maintain the
solvency or any balance sheet item, level of income or financial
condition of another if, in the case of any agreement described under
subclauses (X) or (Y) of this sentence, the primary purpose or intent
thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.
"CONTROLLING CERTIFICATEHOLDERS" means, as of a particular
date of determination, the 1998 Class A Certificateholders beneficially
holding 1998 Class A Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in
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the Class A Pass Through Trust (excluding any 1998 Class A Certificates
beneficially held by Lessee or any Affiliate thereof; PROVIDED,
HOWEVER, the foregoing exclusion shall not apply if Lessee and/or its
Affiliates beneficially hold 100% of the 1998 Class A Certificates as
of a particular date of determination).
"CREDIT AGREEMENT" means the Fifth Amended and Restated Credit
Agreement, dated July 27, 2004 by and among Atlas Air Worldwide
Holdings, Inc., Atlas Air, Inc., the lenders party thereto from time to
time and Deutsche Bank Trust Company Americas, as administrative agent.
"CROSS DEFAULT" means a Lease Event of Default that occurs due
to the occurrence of an Other Creditor Payment Default, an Other
Creditor Non-Payment Default or an Acceleration.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic
cap or other similar agreement or arrangement designed to protect
Parent or any of its Subsidiaries against fluctuations in currency
values.
"DEBTORS" means, collectively, Parent, Lessee, Polar, Airline
Acquisition Corp. I and Atlas Worldwide Aviation Logistics, Inc.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union or
like organization, other than an account evidenced by a negotiable
certificate of deposit.
"DISCLOSED OTHER CREDITOR DOCUMENT" is defined in Section
7(a)(xiii) of the Restructure Agreement.
"DISCLOSURE STATEMENT" means the Second Amended Disclosure
Statement filed with the Bankruptcy Court by the Debtors under 11
U.S.C. ss. 1125 in support of the Debtors' Second Amended Joint Chapter
11 Plan and approved by the Bankruptcy Court on June 8, 2004.
"EETC AMENDMENT FEE CONSIDERATION" is defined in Section 2 of
the Restructure Agreement.
"ENGINE MAINTENANCE CONTRACT" means that certain Engine
Maintenance Agreement (1998 EETC Series-CF6-80C2 Engines) dated Apri1
30, 2004 between Lessee and the Engine Maintenance Contractor, any
other engine maintenance contract that is reasonably acceptable to
Mortgagee (or the Consultant) and Lessor with any other Engine
Maintenance Contractor, and any replacements thereof in accordance with
Section 8.4.4(d) or Section 14.7 of the Lease, as amended from time to
time, relating to the Aircraft; PROVIDED, HOWEVER, that Lessor shall
not have any rights with respect to the acceptance of any Engine
Maintenance Contract (and, therefore, only Mortgagee shall have rights
with respect to the acceptance of any Engine Maintenance Contract) so
long as Mortgagee has not given notice to Lessee that the Lien of the
Trust Indenture has been discharged.
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"ENGINE MAINTENANCE CONTRACT ASSIGNMENT" means that certain
Collateral Assignment of Engine Maintenance Contract dated as of the
Restructure Agreement Execution Date from Lessee to Lessor relating to
the Aircraft and any assignment of any other Engine Maintenance
Contract which replaces any Engine Maintenance Contract Assignment
entered into pursuant to this Lease from time to time.
"ENGINE MAINTENANCE CONTRACTOR" means MTU Maintenance Hannover
GmbH, a German limited liability company, any other engine overhaul
contractor of international stature that is reasonably acceptable to
Mortgagee (or the Consultant) and the Lessor, and any replacements
thereof in accordance with Section 8.4.4(d) or Section 14.7 of the
Lease; PROVIDED, HOWEVER, that Lessor shall not have any rights with
respect to the acceptance of any Engine Maintenance Contractor (and,
therefore, only Mortgagee shall have rights with respect to the
acceptance of any Engine Maintenance Contractor) so long as Mortgagee
has not given notice to Lessee that the Lien of the Trust Indenture has
been discharged.
"ENHANCEMENT" means (a) new or increased rent, debt payments,
maintenance reserves or other form of additional payment, (b) new fees
or other compensation, (c) an increase in interest rate, (d) additional
collateral or credit support, (e) materially improved maintenance
provisions or return condition provisions, or (f) other form of
material enhancement.
"ENHANCEMENT RENT" is defined in Section 8.4.2.
"EXISTING INDEBTEDNESS" means any Indebtedness of Parent and
its Subsidiaries outstanding on and as of the Restructure Agreement
Execution Date as set forth in Schedule 8.4.1(b) of Amendment No. 1 to
Lease Agreement.
"EXIT FACILITY" means the primary senior revolving credit
facility of the Parent or Lessee, now existing or hereafter created,
which is secured by, among other things, a first lien on the accounts
receivable and inventory of the Parent or Lessee, which facility allows
the Parent or Lessee (and which facility may also permit any Affiliate
thereof) to borrow and reborrow amounts (and which may also provide for
letters of credit to be issued at the request of the Parent or Lessee)
up to a borrowing base determined pursuant to the documents evidencing
such facility.
"FIXED CHARGE COVERAGE RATIO" means as of any date, the ratio
of (i) the sum of (x) Consolidated Adjusted EBITDA for the period of
twelve consecutive months ending on such date (a "TEST PERIOD") and (y)
Consolidated Rental Payments for such Test Period to (ii) Consolidated
Fixed Charges for such Test Period.
"FRACTIONAL UNDIVIDED INTEREST" means the fractional undivided
interest in the Class A Pass Through Trust.
"GECAS" means General Electric Capital Aviation Services and
its Affiliates.
"GECAS DOCUMENTS" means those certain lease and sublease
agreements listed on Schedule 1 to the Lease opposite the heading
"GECAS Documents" and the docu-
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ments executed in connection therewith (other than the tax indemnity or
tax indemnification agreements, as amended, executed in connection with
the lease and subleases listed on Schedule 1 to Amendment No. 1 to
Lease Agreement).
"INDEBTEDNESS" means, as applied to any Person, (i) all
indebtedness for borrowed money, (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on
a balance sheet in conformity with GAAP, (iii) notes payable and drafts
accepted representing extensions of credit whether or not representing
obligations for borrowed money, (iv) any obligation owed for all or any
part of the deferred purchase price of property or services (excluding
any such obligations incurred under ERISA), which purchase price is (a)
due more than six months from the date of incurrence of the obligation
in respect thereof or (b) evidenced by a note or similar written
instrument, and (v) all indebtedness secured by any lien on any
property or asset owned or held by that Person regardless of whether
the indebtedness secured thereby shall have been assumed by that Person
or is nonrecourse to the credit of that Person. For purposes of this
Lease, obligations under Interest Rate Agreements and Currency
Agreements are not Indebtedness.
"INTERCOMPANY LOAN" means any loans and advances from any Loan
Party to any other Loan Party.
"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement or arrangement designed to protect Parent or
any of its Subsidiaries against fluctuations in interest rates.
"INSPECTING PARTIES" is defined in Section 12(a) of the Lease.
"LEASE AMENDMENT DEFAULT AMOUNT" is defined in Section 19 of
the Lease.
"LESSEE SECURITY AGREEMENT" means that certain Security
Agreement dated as of the Restructure Agreement Execution Date from
Lessee to Lessor relating to the Aircraft.
"LOAN PARTIES" means Lessee, Parent and Polar.
"MAINTENANCE SCHEDULE" is defined in Section 8.4.4(c) of the
Lease.
"N409 RESTRUCTURING EVENT" means the consummation of a
transaction on terms substantially similar with respect to covenants
and lease events of default set forth in the lease documentation for
the Aircraft, the 1998 EETC Aircraft bearing U.S. registration number *
and the 1999 EETC Aircraft bearing U.S. registration number * pursuant
to which Lessee or an Affiliate of Lessee has become the sole owner
participant of the trust of which the owner trustee is the owner of the
2000 EETC Aircraft bearing U.S. registration number * (except for the
addition of covenants regarding the maintenance of an airframe
maintenance contract).
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* This information has been intentionally deleted from the FAA filing
counterpart as the parties deem it to be confidential and proprietary
information.
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"OBJECTIVES" is defined in Section 8.4.4(b) of the Lease.
"OPERATING LEASE" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the
lessee at any time) of any property (whether real, personal or mixed)
that is not a Capital Lease other than any such lease under which that
Person is the lessor.
"ORIGINAL LEASE" means the Lease Agreement, dated as of July
29, 1998 between the Owner Trustee, as Lessor, and Xxxxxx, as Lessee,
as supplemented by Lease Supplement No. 1 dated July 29, 1998.
"OTHER ACCELERATED CREDITOR" means any holder (other than
GECAS, Boeing, any of the Bank Lenders and any Other EETC Transaction
Person) of any Indebtedness of Lessee or any personal or real property
lease or sublease to which Lessee is bound, other than the Lease.
"OTHER ACCELERATED CREDITOR DOCUMENTS" means the documents
executed in connection with any Indebtedness owed by Xxxxxx to, or any
lease or sublease by Lessee of any personal or real property from, an
Other Accelerated Creditor, and the documents executed in connection
with any extension or renewal thereof, other than the Lease,
"OTHER AIRCRAFT" means the Other 1998 EETC Aircraft, the 1999
EETC Aircraft and the 2000 EETC Aircraft.
"OTHER CREDITOR" means GECAS, Boeing, the Bank Lenders, the
Other EETC Transaction Persons and the Other Accelerated Creditors.
"OTHER CREDITOR AMENDMENT" is defined in the Restructure
Agreement.
"OTHER CREDITOR NON-PAYMENT DEFAULT" is defined in Section
14.6 of the Lease.
"OTHER CREDITOR PAYMENT DEFAULT" is defined in Section 14.6 of
the Lease.
"OTHER EETC TRANSACTION DOCUMENTS" means the documents entered
into with respect to the lease and financing of the Other Aircraft,
PROVIDED that, unless an N409 Restructuring Event has occurred on or
prior to December 1, 2004, the term Other EETC Transaction Documents as
used in Section 14.6 hereof does not include the documents entered into
solely with respect to the 2000 EETC Aircraft bearing U.S. registration
number *.
"OTHER EETC TRANSACTION PERSONS" means the Persons party to
the Other EETC Transaction Documents (other than Lessee, Parent and
Polar).
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* This information has been intentionally deleted from the FAA filing
counterpart as the parties deem it to be confidential and proprietary
information.
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"OTHER EETC TRANSACTIONS" means the transactions pursuant to
which the Other Aircraft are leased and financed.
"OTHER 1998 EETC AIRCRAFT" is defined in Schedule 1 to the
Lease.
"PARENT" means Atlas Air Worldwide Holdings, Inc., a Delaware
corporation.
"PARENT GUARANTY" means that certain Guaranty Agreement dated
as of the Restructure Agreement Execution Date from the Parent to
Lessor relating to the Aircraft.
"PARENT SECURITY AGREEMENT" means that certain Security
Agreement dated as of the Restructure Agreement Execution Date from the
Parent to Lessor relating to the Aircraft.
"PARENT'S PROJECTED EBITDA" means Parent's Projected EBITDA as
referenced in the Business Plan.
"PERMITTED EXTENSION INDEBTEDNESS" means renewals, extensions,
substitutions, refinancings or replacements (each an "extension") by
Parent or any of its Subsidiaries of any Indebtedness of Parent or such
Subsidiary, including any such successive transactions thereby, so long
as (i) any such Indebtedness bears interest at a rate which does not
exceed 15% per annum, (ii) any such Permitted Extension Indebtedness
shall be in a principal amount that does not exceed the principal
amount immediately prior to such extension, PLUS the amount of any
premium required to be paid in connection with such extension pursuant
to the terms of such Indebtedness, PLUS the amount of expenses of
Parent or such Subsidiary reasonably incurred in connection with such
extension, (iii) in the case of any extension of subordinated
Indebtedness, such Permitted Extension Indebtedness is made subordinate
to the obligations of Lessee under the Lease at least to the same
extent as the Indebtedness immediately prior to such extension, (iv)
such Permitted Extension Indebtedness has a final stated maturity later
than the notes issued in connection with the Bank Lender Documents and
(v) the amortization and the other terms, provisions, conditions,
covenants and events of default thereof taken as a whole shall be no
more onerous or restrictive from the perspective of Parent and its
Subsidiaries or any more favorable, from the perspective of Mortgagee,
than those contained in the Indebtedness immediately prior to such
extension.
"PERMITTED INDEBTEDNESS" means
(i) Indebtedness incurred with respect to the Bank Lender
Documents;
(ii) the Parent Guaranty and the Polar Guaranty;
(iii) any Existing Indebtedness;
(iv) any Permitted Extension Indebtedness;
(v) with respect solely to AFL III, any Indebtedness
incurred by AFL III with respect to the AFL III Financing Agreement and
the AFL III Leases;
-11-
(vi) any Indebtedness incurred with respect to the Lease;
(vii) any Indebtedness incurred with respect to the Other
EETC Transactions;
(viii) the Exit Facility, PROVIDED that the aggregate
principal amount thereof (including any letters of credit issued
thereunder) shall not exceed $60,000,000.00 at any one time
outstanding;
(ix) any Indebtedness constituting Intercompany Loans; and
(x) any other Indebtedness in an aggregate principal
amount not to exceed $10,000,000 at any one time outstanding.
"PLAN CONFIRMATION DATE" means the date of entry of the order
of the Bankruptcy Court confirming the Plan of Reorganization, which
order is final and unstayed.
"PLAN OF REORGANIZATION" means the Final Modified Second
Amended Joint Plan of Reorganization of the Debtors dated as of July
14, 2004 and confirmed by order of the Bankruptcy Court entered on July
16, 2004.
"POLAR" means Polar Air Cargo, Inc., a California corporation.
"POLAR GUARANTY" means that certain Guaranty Agreement dated
as of the Restructure Agreement Execution Date from Polar to Lessor
relating to the Aircraft.
"POLAR SECURITY AGREEMENT" means that certain Security
Agreement dated as of the Restructure Agreement Execution Date from
Polar to Lessor relating to the Aircraft;
"REQUIRED RATING" means a rating of "BB-" by S&P or "Ba3" by
Moody's.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Lessee or Parent now or hereafter outstanding or any
Affiliate of Lessee or Parent other than dividends or other
distributions payable solely in such class of stock of Lessee, Parent
or any Affiliate of Lessee or Parent, as applicable, to the holders of
that class and except for any distribution or dividend that is made
solely to Parent, Polar or Lessee (and, if an Affiliate is not a
wholly-owned Subsidiary, to the other shareholders of such Subsidiary
on a pro rata basis or on a basis that results in the receipt by
Parent, Polar or Lessee of dividends or distributions of greater value
than it would receive on a pro rata basis), (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class
of stock of Lessee, Parent or any Affiliate of Lessee or Parent now or
hereafter outstanding and (iii) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of stock of Lessee, Parent or any
Affiliate of Lessee or Parent now or hereafter outstanding.
-12-
"RESTRICTED JUNIOR PAYMENT CONDITIONS" means
(a) no Lease Default or Lease Event of Default
shall have occurred and be continuing, and
(b) Parent's reserve of Unrestricted Cash and
Cash Equivalents and Availability at any time during any
period set forth below is equal to or greater than the amount
set forth opposite such period below:
-------------------------------------------------------
MINIMUM
FOR THE PERIOD LIQUIDITY
-------------------------------------------------------
September 1 to October 7, 2004 $55,000,000
-------------------------------------------------------
October 8 to November 7, 2004 $60,000,000
-------------------------------------------------------
November 8 to December 7, 2004 $65,000,000
-------------------------------------------------------
December 8, 2004 to January 7, 2005 $70,000,000
-------------------------------------------------------
January 8 to April 7, 2005 $75,000,000
-------------------------------------------------------
April 8, 2005 to September 30, 2005 $85,000,000
-------------------------------------------------------
October 1, 2005 to December 31, 2005 $95,000,000
-------------------------------------------------------
January 1, 2006 to December 31, 2006 $110,000,000
-------------------------------------------------------
January 1, 2007 and thereafter $125,000,000
-------------------------------------------------------
Notwithstanding the "at any time" requirement, within each
calendar month, Unrestricted Cash and Cash Equivalents, and
Availability may be less than the Minimum Liquidity set forth above for
one period not to exceed five consecutive business days.
"RESTRUCTURE AGREEMENT" means the certain Restructure
Agreement dated as of July 27, 2004 among Lessee, Lessor, Mortgagee,
Owner Participant and others relating to the Aircraft.
"RESTRUCTURE AGREEMENT EXECUTION DATE" means July 27, 2004.
"SPECIAL COVENANTS TERMINATION DATE" means the earlier of (i)
the date that the 1998 Class A Certificates are paid in full or (ii)
the first date that the senior unsecured debt of Lessee achieves the
Required Rating which comes after the debt to the Bank Lenders has been
paid in full; PROVIDED that a payment directly or indirectly from the
proceeds of a Bank Debt Refinancing shall not be deemed to be a payment
in full of the debt to the Bank Lenders.
"SPECIAL INSPECTOR" is defined in Section 12(g) of the Lease.
"SPECIFIED PRIOR DEFAULTS" means any Lease Default or Lease
Event of Default arising out of or in connection with (i) Lessee's
failure to make payments of Basic Rent that were due under the Original
Lease on July 2, 2003, January 2, 2004 and July 2, 2004
-13-
and were due under the Lease on February 2, 2004 and March 2, 2004;
(ii) Lessee's failure to deliver certain financial information and
other reports, certificates or other information as required by Section
8.2.1 of the Original Lease for periods ending prior to July 1, 2004;
(iii) Lessee's representations and warranties contained in certificates
delivered prior to the Restructure Agreement Execution Date with
respect to Xxxxxx's financial statements; and (iv) the filing of
Xxxxxx's Chapter 11 Case.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, association, joint venture or other business
entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the Person or
Persons (whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or cause the
direction of the management and policies thereof is at the time owned
or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof.
"UNRESTRICTED CASH AND CASH EQUIVALENTS" means Cash and Cash
Equivalents that are not subject to any restriction or limitation on
Parent's ability to withdraw (in the case of Cash) or sell (in the case
of Cash Equivalents).
"1998 CLASS A CERTIFICATEHOLDERS" means the Persons who
beneficially hold through the Depository Trust Company the 1998 Class A
Certificates.
"1998 CLASS A CERTIFICATES" means the 7.38% Atlas Air Initial
Pass Through Certificates, Series 1998-1A and 7.38% Atlas Air Exchange
Pass Through Certificates, Series 1998-1A issued by the Class A Pass
Through Trust.
"1998 EETC AIRCRAFT" means the following:
(a) the Aircraft; and
(b) the Other 1998 EETC Aircraft.
"1999 EETC AIRCRAFT" is defined in Schedule 1 to the Lease.
"2000 EETC AIRCRAFT" is defined in Schedule 1 to the Lease.
"747-200 AIRCRAFT" is defined in Section 6(k) of the
Restructure Agreement.
"747-400 AIRCRAFT" is defined in Section 6(k) of the
Restructure Agreement.
"747-400 AIRCRAFT AGREEMENT" is defined in Section 6(k) of the
Restructure Agreement.
(ii) CHANGES. The definitions of the following terms in
Annex A to the Original Lease are amended by deleting each definition in its
entirety and inserting the following definitions in lieu thereof:
-14-
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally
guaranteed as to interest and principal by the United States Government
or (b) issued by any agency of the United States the obligations of
which are backed by the full faith and credit of the United States, in
each case maturing within two years after the date of purchase; (ii)
marketable direct obligations (fixed and/or floating rate) issued by
any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof, in each case
maturing within two years after the date of purchase and having, at the
time of the acquisition thereof and at all times thereafter, the
highest rating obtainable from at least two of S&P, Moody's and Xxxxx,
Inc.; (iii) Dollar-denominated marketable direct obligations (fixed
and/or floating rate) issued by any corporation or commercial bank
including medium term notes and bonds, deposit notes and
eurodollar/yankee notes and bonds, in each case maturing within two
years after the date of purchase and, at the time of acquisition
thereof and at all times thereafter, both (A) having a rating from at
least two of S&P, Xxxxx'x, and Xxxxx, Inc. and (B) not having a rating
of less than A from S&P, A2 from Xxxxx'x, or A from Fitch, Inc.; (iv)
Dollar-denominated commercial paper maturing no more than two years
from the date of purchase and issued by a corporation or commercial
bank that, at the time of acquisition of the commercial paper and at
all times thereafter, both (A) has a short-term credit rating from at
least two of S&P, Xxxxx'x, and Fitch, Inc. and (B) does not have a
short-term credit rating of less than A-1 (or the equivalent thereof)
from S&P, P-1 (or the equivalent thereof) from Xxxxx'x, or F-I (or the
equivalent thereof) from Fitch, Inc.; (v) Dollar-denominated
certificates of deposit, bankers' acceptances and/or time deposits
maturing within two years after the date of purchase and issued or
accepted by any commercial bank that, at the time of acquisition of
such security and at all times thereafter, both (A) has a short-term
credit rating from at least two of S&P, Xxxxx'x, and Xxxxx, Inc. and
(B) does not have a short-term credit rating of less than A-1 (or the
equivalent thereof) from S&P, P-1 (or the equivalent thereof) from
Xxxxx'x, or F-1 (or the equivalent thereof) from Fitch, Inc.; (vi)
shares of any money market mutual fund that (a) has at least 95% of its
assets invested continuously in the types of investments referred to in
clauses (i) and (ii) above, (b) has net assets of not less than
$500,000,000 and (c) has the highest rating obtainable from either S&P,
Moody's or Xxxxx, Inc.; (vii) Dollar-denominated asset-backed
securities (excluding any mortgage products) with a stated bullet
maturity of no more than two years from the date of purchase and, at
the time of acquisition thereof and at all times thereafter, both (A)
having a rating from at least two of S&P, Xxxxx'x, and Xxxxx, Inc. and
(B) not having a rating of less than A from S&P, A2 from Xxxxx'x, or A
from Fitch, Inc.; (viii) repurchase agreements entered into with
financial institutions satisfying the criteria set forth in clause (v)
above with terms of not more than thirty days for securities described
in clauses (i) and (ii) above and having a fair market value of at
least 102% of the amount of the repurchase obligations; and (ix)
auction rate securities (auction rate debt and money market preferreds)
with terms of not more than ninety days and, at the time of acquisition
thereof and at all times thereafter, both (A) having a rating from at
least two of S&P, Xxxxx'x, and Xxxxx, Inc. and (B) not having a rating
of less than A from S&P, A2 from Xxxxx'x, or A from Fitch, Inc.
-15-
"CLASS A PASS THROUGH TRUST" means that certain Atlas Air Pass
Through Trust 1998-1A-S formed pursuant to that certain Pass Through
Trust Agreement dated as of February 9, 1998 between Lessee and
Wilmington Trust Company, as Trustee, as amended by that certain 1998
Class A Pass Through Trust Supplement dated as of the Restructure
Agreement Execution Date.
"EQUIPMENT NOTES" means and includes any equipment notes
issued under the Trust Indenture in the form specified in Section 2.01
thereof (as such form may be varied pursuant to the terms of the Trust
Indenture), including the applicable allonge (each, an "ALLONGE" and
collectively, the "ALLONGES") thereto dated the Restructure Agreement
Execution Date and executed by the Owner Trustee and any Equipment Note
issued under the Trust Indenture in exchange or replacement for any
Equipment Note.
"FAIR MARKET RENTAL VALUE" shall be determined as provided in
Section 15.4 of the Lease.
"LEASE" or "LEASE AGREEMENT" means the Lease Agreement, dated
as of July 29, 1998 between the Owner Trustee, as lessor, and Xxxxxx,
as lessee, as supplemented by Lease Supplement No. 1 dated July 29,
1998, and amended by Amendment No. 1 to Lease Agreement.
"LESSEE OPERATIVE AGREEMENTS" means the Participation
Agreement, the Lease, the Purchase Agreement Assignment, the Lessee
Security Agreement, the Engine Maintenance Contract Assignment, the
Restructure Agreement and each other agreement between Lessee and any
other party to the Participation Agreement and/or the Restructure
Agreement, in each case relating to the transactions contemplated
thereby (other than the related tax indemnity agreement, which has been
terminated).
"MOODY'S" means Xxxxx'x Investors Service, Inc. and its
successors.
"OPERATIVE AGREEMENTS" means, collectively, the Participation
Agreement, the Trust Agreement, the Purchase Agreement Assignment, the
Consent and Agreement, the Engine Consent and Agreement, the Lease, the
Trust Indenture, the Bills of Sale, the Assignment and Assumption
Agreement(s), if any, executed pursuant to Section 10 of the
Participation Agreement, the Equipment Notes, the Lessee Security
Agreement, the Engine Maintenance Contract Assignment, the Polar
Guaranty, the Polar Security Agreement, the Parent Guaranty, the Parent
Security and the Restructure Agreement.
"OWNER PARTICIPANT AGREEMENTS" means, collectively, the
Participation Agreement, the Trust Agreement and each other agreement
between the Owner Participant and any other party to the Participation
Agreement (other than the related tax indemnity agreement, which has
been terminated).
"PASS THROUGH TRUST AGREEMENT" means each of the three
separate Pass Through Trust Agreements, each dated as of the Issuance
Date, by and between Lessee and Pass Through Trustee, and in the case
of the Class A Pass Through Trust, includes the 1998 Class A Pass
Through Trust Supplement dated as of the Restructure Agreement
Execution Date.
-16-
"PAYMENT DATE" means (a) for the period from the Delivery Date
up to and including January 2, 2003 each January 2 and July 2,
commencing with the first such date to occur after the Commencement
Date and (b) after January 2, 2003, each date set forth on Schedule 2
to Amendment No. 1 to Lease Agreement.
"PAYMENT PERIOD" means (a) for the period from the Delivery
Date up to and including January 2, 2003, each of the consecutive
semiannual periods (or, if applicable, such shorter period ended on the
first Payment Date of the Base Lease Term) during such portion of the
Term ending on a Payment Date, the first such period commencing on and
including the Commencement Date and (b) after January 2, 2003, means
each of the consecutive monthly periods during such portion of the Term
ending on the date immediately proceding a Payment Date (or, if
applicable, such shorter period ended on the Scheduled Expiration
Date), the first such period commencing on January 2, 2004; PROVIDED,
HOWEVER, that the period commencing after January 2, 2003 up to and
including January 1, 2004 shall have no Payment Period and Basic Rent
for such period shall be paid on the dates set forth in Schedule 2 to
Amendment No. 1 to Lease Agreement.
"PURCHASE DATE" means the last day, or if such day is not a
Business Day, the immediately succeeding Business Day, of the Base
Lease Term, as specified in any Purchase Notice.
"RENT" means, collectively, Basic Rent, Enhancement Rent and
Supplemental Rent.
"SCHEDULED EXPIRATION DATE" is defined in Schedule 1 to
Amendment No. 1 to Lease Agreement.
"SERIES A" or "SERIES A EQUIPMENT NOTES" means Equipment Notes
issued under the Trust Indenture and designated as "Series A"
thereunder, in the Original Amount and maturities and bearing interest
as specified in Schedule I to the Trust Indenture under the heading
"Series A", as such Equipment Notes have been amended by the applicable
Allonge.
"SERIES B" or "SERIES B EQUIPMENT NOTES" means Equipment Notes
issued under the Trust Indenture and designated as "Series B"
thereunder, in the Original Amount and maturities and bearing interest
as specified in Schedule I to the Trust Indenture under the heading
"Series B", as such Equipment Notes have been amended by the applicable
Allonge.
"SERIES C" or "SERIES C EQUIPMENT NOTES" means Equipment Notes
issued under the Trust Indenture and designated as "Series C"
thereunder, in the Original Amount and maturities and bearing interest
as specified in Schedule I to the Trust Indenture under the heading
"Series C", as such Equipment Notes have been amended by the applicable
Allonge.
"STANDARD & POOR'S" or "S&P" means Standard & Poor's Rating
Services, a division of The XxXxxx-Xxxx Companies, Inc., and its
successors.
-17-
"STIPULATED LOSS VALUE" means, with respect to the Aircraft,
during the Base Lease Term, (a) for the period from the Delivery Date
up to and including January 2, 2003, the amount determined by
multiplying (i) the percentage set forth in Schedule 3 to the Original
Lease opposite the Stipulated Loss Value Date as of which Stipulated
Loss Value is required to be computed by (ii) Lessor's Cost and (b)
after January 2, 2003 (except as otherwise provided pursuant to Section
19), the amount set forth in Schedule 3 to Amendment No. 1 to Lease
Agreement opposite the Stipulated Loss Value Date as of which
Stipulated Loss Value is required to be computed. Notwithstanding
anything to the contrary in any Operative Agreement, Stipulated Loss
Value shall always be sufficient to pay in full, as of the date of
payment thereof (assuming timely payment of the Equipment Notes prior
to such date), the aggregate unpaid principal amount of all Equipment
Notes outstanding as of such date, together with accrued and unpaid
interest on all such Equipment Notes as of such date.
"STIPULATED LOSS VALUE DATE" means, for any month, (a) for the
period from the Delivery Date up to and including January 2, 2003, the
day in such month specified in Schedule 3 to the Original Lease or, if
such a day is not a Business Day, the immediately succeeding Business
Day and (b) after January 2, 2003, the day in such month specified in
Schedule 3 to Amendment No. 1 to Lease Agreement or, if such a day is
not a Business Day, the immediately succeeding Business Day.
"SUPPLEMENTAL RENT" means, without duplication, (a) all
amounts, liabilities, indemnities and obligations (other than Basic
Rent and Enhancement Rent but including Make-Whole Amount, if any, EETC
Amendment Fee Consideration, if any, and Enhancements pursuant to
clause (ii) of Section 8.4.2, if any) that Lessee assumes or becomes
obligated to or agrees to pay under any Lessee Operative Agreement to
or on behalf of Lessor or any other Person, including, without
limitation, payments of Stipulated Loss Value, Termination Value and
payments of indemnities under Section 9 of the Participation Agreement,
but excluding any amount as to which Lessee is obligated to pay a Pro
Rata Share pursuant to clause (e) of this definition, (b) (i) to the
extent not payable (whether or not in fact paid) under Section 6(a) of
the Note Purchase Agreement (as originally in effect or amended), an
amount or amounts equal to the fees paid to the relevant Liquidity
Provider under Section 2.03 of each Liquidity Facility and the related
Fee Letter (as defined in the Intercreditor Agreement) multiplied by a
fraction the numerator of which shall be the then outstanding aggregate
principal amount of the Series A Equipment Notes, Series B Equipment
Notes and Series C Equipment Notes and the denominator of which shall
be the then outstanding aggregate principal amount of all "Series A
Equipment Notes", "Series B Equipment Notes" and "Series C Equipment
Notes" (each as defined in the Note Purchase Agreement); (ii) (x) the
amount equal to interest on any Downgrade Advance (other than any
Applied Downgrade Advance) payable under Section 3.07(e) of each
Liquidity Facility minus Investment Earnings from such Downgrade
Advance multiplied by (y) the fraction specified in the foregoing
clause (i); (iii) (x) the amount equal to interest on any Non-Extension
Advance (other than any Applied Non-Extension Advance) payable under
Section 3.07(a)(i) of each Liquidity Facility minus Investment Earnings
from such Non-Extension Advance multiplied by (y) the fraction
specified in the forgoing clause (i); (iv) if any payment default shall
have occurred and be continuing with respect to interest on any Series
A Equipment Notes, Series B
-18-
Equipment Notes or Series C Equipment Notes, (x) the excess, if any, of
(1) an amount equal to interest on any Unpaid Advance, Applied
Downgrade Advance or Applied Non-Extension Advance payable under
Section 3.07(a) of each Liquidity Facility over (2) the sum of
Investment Earnings from any Final Advance plus any amount of interest
at the Payment Due Rate actually payable (whether or not in fact paid)
by Lessee in respect of the overdue scheduled interest on the Equipment
Notes in respect of which such Unpaid Advance, Applied Downgrade
Advance or Applied Non-Extension Advance was made multiplied by (y) a
fraction the numerator of which shall be the then aggregate overdue
amounts of interest on the Series A Equipment Notes, Series B Equipment
Notes and Series C Equipment Notes (other than interest becoming due
and payable solely as a result of acceleration of any such Equipment
Notes) and the denominator of which shall be the then aggregate overdue
amounts of interest on all "Series A Equipment Notes", "Series B
Equipment Notes" and "Series C Equipment Notes" (each as defined in the
Note Purchase Agreement) (other than interest becoming due and payable
solely as a result of acceleration of any such "Equipment Notes"); and
(v) Lessee's pro rata share of any other amounts owed to the Liquidity
Providers by the Subordination Agent as borrower under each Liquidity
Facility (other than amounts due as repayment of advances thereunder or
as interest on such advances), except to the extent payable pursuant to
clause (ii), (iii) or (iv) above, (c) Lessee's pro rata share of all
compensation and reimbursement of expenses, disbursements and advances
payable by Lessee under the Pass Through Trust Agreements, (d) Xxxxxx's
pro rata share of all compensation and reimbursement of expenses and
disbursements payable to the Subordination Agent under the
Intercreditor Agreement except with respect to any income or franchise
taxes incurred by the Subordination Agent in connection with the
transactions contemplated by the Intercreditor Agreement, (e) Xxxxxx's
pro rata share of any amount payable under Section 9.1 (and, if
attributable thereto, Section 9.5) of the Participation Agreement to
any Pass Through Indemnitee to the extent such amount relates to,
results from or arises out of or in connection with (i) the Pass
Through Agreements or the enforcement of any of the terms of any of the
Pass Through Agreements, (ii) the offer, sale, or delivery of the Pass
Through Certificates or any interest therein or represented thereby or
(iii) any breach of or failure to perform or observe, or any other
noncompliance with, any covenant or agreement or other obligation to be
performed by Lessee under any Pass Through Agreement or the falsity of
any representation or warranty of Lessee in any Pass Through Agreement
and (f) in the event Lessee requests any amendment to any Operative
Agreement or Pass Through Agreement, Lessee's pro rata share of all
reasonable fees and expenses (including, without limitation, fees and
disbursements of counsel) of the Escrow Agents and the Paying Agents in
connection therewith payable by the Pass Through Trustees under the
Escrow Agreements. As used herein, "Lessee's pro rata share" means as
of any time a fraction, the numerator of which is the principal balance
then outstanding of Equipment Notes and the denominator of which is the
aggregate principal balance then outstanding of all "Equipment Notes"
(as such term is defined in each of the Operative Indentures). For
purposes of this definition, the terms "Applied Downgrade Advance",
"Applied Non-Extension Advance", "Cash Collateral Account", "Downgrade
Advance", "Final Advance", "Investment Earnings", "Non-Extension
Advance" and "Unpaid Advance" shall have the meanings specified in each
Liquidity Facility.
-19-
"TERM" means the Base Lease Term; PROVIDED that if at the
scheduled end of the Base Lease Term the Aircraft or Airframe is being
used, or was within six (6) months prior thereto being used, by the
U.S. Government pursuant to CRAF, the Term shall be deemed extended for
the period necessary to accommodate usage of the Aircraft or Airframe
pursuant to CRAF plus six months thereafter, and Lessee shall be
obligated to pay with respect to any such period of extension (i) Basic
Rent at a daily equivalent rate equal to the average of the Basic Rent
paid during the Base Lease Term plus (ii) the daily equivalent rate of
Enhancement Rent, if applicable at the time, paid during the final
Payment Period.
"TERMINATION VALUE" means, with respect to the Aircraft,
during the Base Lease Term, (a) for the period from the Delivery Date
up to and including January 2, 2003, the amount determined by
multiplying (i) the percentage set forth in Schedule 4 to the Original
Lease opposite the Termination Value Date as of which Termination Value
is required to be computed by (ii) Lessor's Cost and (b) after January
2, 2003 (except as otherwise provided pursuant to Section 19), the
amount set forth in Schedule 4 to Amendment No. 1 to Lease Agreement
opposite the Termination Value Date as of which Termination Value is
required to be computed. Notwithstanding anything to the contrary in
any Operative Agreement, Termination Value shall always be sufficient
to pay in full, as of the date of payment thereof (assuming timely
payment of the Equipment Notes prior to such date), the aggregate
unpaid principal amount of all Equipment Notes outstanding as of such
date, together with accrued and unpaid interest on all such Equipment
Notes as of such date.
"TERMINATION VALUE DATE" means, for any month, (a) for the
period from the Delivery Date up to and including January 2, 2003, the
day in such month specified in Schedule 4 to the Original Lease or, if
such a day is not a Business Day, the immediately succeeding Business
Day and (b) after January 2, 2003, the day in such month specified in
Schedule 4 to Amendment No. 1 to Lease Agreement or, if such a day is
not a Business Day, the immediately succeeding Business Day.
"TRUST INDENTURE" means the Trust Indenture and Mortgage dated
as of even date with the Participation Agreement, between Owner Trustee
and Mortgagee, as supplemented by the Trust Indenture and Mortgage
Supplement dated July 29, 1998 and the Trust Indenture and Mortgage
Supplement dated March 19, 2004 and as further supplemented by the
Trust Indenture and Mortgage Supplement dated as of the Restructure
Agreement Execution Date.
(iii) DELETIONS. The definitions of the terms "ADVERSE CHANGE
IN TAX LAW", "CHANGE IN TAX LAW", "EBO DATE", "EBO PRICE", "EXCLUDED PAYMENTS",
"MATERIALLY ADVERSE TAX EVENT", "NEW DEBT", "REFUNDING CERTIFICATE", "REFUNDING
DATE", "REFUNDING INFORMATION", "RENEWAL LEASE TERM", "RENEWAL NOTICE", "RENEWAL
RENT", "RENEWAL RENT CAP", "RENEWAL TERM EXPIRATION DATE", "SUBSEQUENT RENEWAL
LEASE TERM", "TAX ATTRIBUTE PERIOD" and "TAX INDEMNITY AGREEMENT" are hereby
deleted from Annex A to the Original Lease in their entirety.
-20-
SECTION 2. AMENDMENTS TO SECTION 3 OR THE ORIGINAL LEASE. (A)
Section 3.1 of the Original Lease is hereby amended by deleting the second
sentence of such Section 3.1 in its entirety.
(B) Clauses (a) through (d) of Section 3.2.1 of the
Original Lease are hereby amended by deleting such clauses in their entirety and
inserting the following in lieu thereof:
(a) During the Base Lease Term, (i) up to and including
January 2, 2003, Lessee shall pay to Lessor, on each Payment Date,
Basic Rent in the amount specified in Schedule 2 to the Original Lease
for such Payment Date, which shall be allocated to the Payment Period
ending on such Payment Date, if designated as a payment in arrears, or
allocated to the Payment Period commencing on such Payment Date, if
designated as a payment in advance, in each case as specified in
Schedule 2 to the Original Lease and (ii) after January 2, 2003, Lessee
shall, except as otherwise provided pursuant to Section 19, pay to
Lessor, on each Payment Date, Basic Rent in the amount specified in
Schedule 2 to Amendment No. 1 to Lease Agreement for such Payment Date,
which shall be allocated to the Payment Period ending on such Payment
Date, if designated as a payment in arrears, or allocated to the
Payment Period commencing on such Payment Date, if designated as a
payment in advance, in each case as specified in Schedule 2 to
Amendment No. 1 to Lease Agreement; PROVIDED, HOWEVER, that Basic Rent
paid on the July 2, 2003, October 1, 2003, October 30, 2003, November
5, 2003 and December 17, 2003 Payment Dates and Basic Rent paid on
January 30, 2004 and March 17, 2004 shall be allocated as provided in
Schedule 2 to Amendment No. 1 to Lease Agreement.
(C) Clause (e) of Section 3.2.1 of the Original Lease is
hereby amended by relettering such clause as clause "(b)".
(D) Section 3.3(a) of the Original Lease is hereby
amended by adding the following words to the end of Section 3.3(a): "So long as
Mortgagee has not given notice to Lessee that the Lien of the Trust Indenture
has been discharged, if (i) Lessee consolidates a wire transfer of Basic Rent
with payments of Enhancement Rent or Supplemental Rent for the Aircraft, or (ii)
Lessee consolidates a wire transfer of Rent with payments of rent under leases
and/or principal or interest under equipment notes (as applicable) for any Other
Aircraft and such wire transfer contains payments of Enhancement Rent or
Supplemental Rent for the Aircraft and/or similar payments, AMLR and/or Excess
Rent (as defined in the leases for certain of the Other Aircraft) with respect
to such Other Aircraft, then, at least one (1) Business Day prior to Mortgagee's
receipt of such Rent described in clauses (i) or (ii) above, Lessee shall
provide Mortgagee with a spreadsheet itemizing by U.S. registration mark how the
payments of Basic Rent, Enhancement Rent or Supplemental Rent with respect to
the Aircraft and, if applicable, such similar payments and/or AMLR or Excess
Rent with respect to such Other Aircraft should be applied among the Aircraft
and such Other Aircraft.
(E) Section 3.3(c) of the Original Lease is hereby
amended by deleting the words ", other than Excluded Payments" therefrom.
(F) Section 3.3(d) of the Original Lease is hereby
amended by deleting such section in its entirety.
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(G) Clause (e) of Section 3.3 of the Original Lease is
hereby amended by relettering such clause as clause "(d)".
SECTION 3. AMENDMENT TO SECTION 4.7(b) OF THE ORIGINAL LEASE.
Section 4. 7(b) of the Original Lease is hereby amended by adding the following
to the end of such Section 4.7(b):
Notwithstanding the foregoing, at all times on and after the
date that Lessee or any Affiliate of Lessee is the Owner Participant or
otherwise beneficially owns (or has the contractual option to acquire)
a majority of the Owner Participant's interest in the Aircraft
(including all times after Lessee or any Affiliate of Lessee ceases to
be the Owner Participant or to beneficially own or have the contractual
option to acquire such Owner Participant's interest), Lessor will not
have the right to exercise its rights as a "secured party", "lessor",
or "conditional vendor", or their equivalent, under Section 1110 for
any purpose in connection with such Aircraft in any case commenced
under the Bankruptcy Code (and this clause constitutes a waiver, to the
extent set forth herein, of Lessor's and the Owner Participant's rights
under Section 12 of the Participation Agreement), provided, however,
that (i) Mortgagee will nevertheless have all of the rights of a
secured party and lessor unless and until the Equipment Notes have been
indefeasibly paid in full in cash (including any such rights that
Mortgagee has as an assignee of Lessor under the Trust Indenture), it
being understood that, to the extent necessary for Mortgagee to
exercise any such rights as its assignee, Lessor will retain all such
rights that it may have even though it is waiving, as between Lessor
and Mortgagee, the right to exercise such rights under the
circumstances set forth above, and (ii) Lessee is not waiving herein
any rights it has or could have under Section 1110 as a lessee of the
Aircraft. For the avoidance of doubt, Xxxxxx's options to purchase the
Aircraft pursuant to Sections 10 and 17 of this Lease do not constitute
"the contractual option to acquire a majority of the Owner
Participant's interest in the Aircraft".
SECTION 4. AMENDMENTS TO SECTION 7 OF THE ORIGINAL LEASE.
Section 7 of the Original Lease is hereby amended by (i) deleting the proviso
contained in Section 7.1.2, (ii) deleting the words "or any Renewal Lease Term"
from Section 7.2.7(c) and (iii) deleting Section 7.2.7(i) in its entirety.
SECTION 5. AMENDMENTS TO SECTION 8 OF THE ORIGINAL LEASE. (A)
Section 8 of the Original Lease is hereby amended by deleting Sections 8.2.1(a)
and (b) in their entirety and substituting the following in lieu thereof:
(a) Within 90 days after the end of each of the first
three fiscal quarters in each fiscal year of Parent, an unaudited
balance sheet of Parent and its consolidated affiliates as of the end
of such quarter and unaudited related statements of income and cash
flows for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, prepared in accordance with
GAAP and in the case of the fiscal quarter ending March 31, 2005 and
each and every fiscal quarter ending thereafter setting forth in
comparative form the corresponding figures for the corresponding period
in the
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preceding fiscal year, prepared in accordance with GAAP; PROVIDED that,
so long as Parent is subject to the reporting requirements of the
Securities Exchange Act of 1934, a copy of Parent's report on Form 10-Q
for such fiscal quarter (excluding exhibits) will satisfy this
paragraph (a); PROVIDED, FURTHER, that for fiscal quarters ending March
31, 2004, June 30, 2004 and September 30, 2004, Lessee will provide an
unaudited balance sheet and unaudited related statements of income and
cash flow of Parent and its consolidated affiliates within 120 days of
the end of such quarter.
(b) Within 120 days after the end of each fiscal year of
Parent, an audited balance sheet of Parent and its consolidated
affiliates as of the end of such fiscal year and related audited
statements of income and cash flows for such fiscal year, prepared in
accordance with GAAP, together with a report of Xxxxxx's independent
certified public accountants with respect to their audit of such
financial statements, and in the case of the fiscal year ending
December 31, 2005 and each and every fiscal year ending thereafter in
comparative form with the preceding fiscal year; PROVIDED that, so
long as Parent is subject to the reporting requirements of the
Securities Exchange Act of 1934, a copy of Parent's report on Form 10-K
for such fiscal year (excluding exhibits) will satisfy this paragraph
(b); PROVIDED, FURTHER, that for the fiscal year ended December 31,
2003, Lessee shall provide an audited balance sheet of Parent and its
consolidated affiliates and audited related statements of income and
cash flows as soon as such audited balance sheet and audited related
statements of income and cash flows are available.
(c) Notwithstanding the foregoing, as soon as available,
and in any event within thirty (30) days following the date of filing
with the Securities and Exchange Commission, one copy of each Quarterly
Report on Form 10-Q (or any successor form thereto promulgated by the
Securities and Exchange Commission) of Parent and each Annual Report on
Form 10-K (or any successor form thereto promulgated by the Securities
and Exchange Commission) of Parent filed with the Securities and
Exchange Commission.
(d) Lessee shall deliver to Mortgagee a copy of any
officer's certificate or notice that Lessee is required to deliver to
the administrative agent under the Bank Lender Documents pursuant to
Sections 5. 1 (viii), (ix), (x) and (xii) of the Credit Agreement or
any comparable section of any Bank Lender Documents executed in
connection with a Bank Debt Refinancing or any amendment of the Credit
Agreement.
(e) In the event that an executive officer (or any
officer with responsibility in relation to this Lease or any other
person determining senior management policies or exercising executive
responsibilities) of Lessee shall have actual knowledge of the failure
by Xxxxxx to observe or perform (or cause to be observed or performed)
in any material respect any of its covenants, agreements or obligations
in Sections 8.4.1, 8.4.2, 8.4.3, 8.4.4 or 12(g), Lessee shall deliver,
within five (5) Business Days of such actual knowledge, an affirmative
written notice thereof to Lessor, Owner Participant and Mortgagee.
(f) Lessee shall deliver to Lessor, Owner Participant and
Mortgagee as soon as available and in any event within five (5)
Business Days after the end of each quarter of each fiscal year, an
officer's certificate certifying that Lessee is in compliance with its
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covenants, agreements and obligations in Sections 8.4.1, 8.4.2, 8.4.3,
8.4.4 or 12(g) or, if Lessee is not in compliance, specifying the
nature of the non-compliance, the period of existence of the
non-compliance and the action that Lessee has taken or proposes to take
with respect thereto.
(B) Section 8 of the Original Lease is amended by adding
the following to the end of such Section 8 as new Sections 8.3 and 8.4:
8.3 [Intentionally Omitted]
8.4.1 RESTRICTED PAYMENTS; RESTRICTIONS ON INDEBTEDNESS;
RESTRICTIONS ON LEASES AND SUBLEASES: MERGERS; LINES OF BUSINESS;
SUBORDINATED DEBT; CONTINGENT OBLIGATIONS.
From and after the Restructure Agreement Execution Date and
prior to the Special Covenants Termination Date, Lessee will not, and
Lessee will not permit Parent or any Subsidiary or any Affiliate of
Lessee or Parent to:
(a) make any Restricted Junior Payment, unless
the Restricted Junior Payment Conditions are satisfied both
immediately prior to giving effect to the making of such
Restricted Junior Payment and after giving effect to the
making of such proposed Restricted Junior Payment;
(b) create, incur (by merger, conversion,
exchange or otherwise), assume, guarantee or become liable,
contingently or otherwise, for any Indebtedness (including any
Acquired Indebtedness), unless the Additional Indebtedness
Incurrence Conditions are satisfied both immediately prior to
giving effect to the creation, incurrence, assumption or
guarantee of such other Indebtedness and after giving effect
to such proposed creation, incurrence, assumption or guarantee
of such other Indebtedness; PROVIDED, HOWEVER, this Section
8.4.l(b) shall not apply to Permitted Indebtedness; and
PROVIDED, FURTHER, for the avoidance of doubt and
notwithstanding anything to the contrary contained in this
Lease, the accrual of interest, accretion or amortization of
original issue discount and the payment of interest or
dividends in the form of additional Indebtedness will not be
deemed to be an incurrence of Indebtedness;
(c) enter into any lease or sublease of any real
or personal property as lessee or sublessee (other than
intercompany leases between Parent, Polar and Lessee), unless
the Additional Lease Incurrence Conditions are satisfied both
immediately prior to giving effect to the entering into of
such other lease or sublease and after giving effect to such
entering into of such other proposed lease or sublease;
PROVIDED, HOWEVER, Operating Leases and Capital Leases entered
into after the Restructure Agreement Execution Date which are
replacements of Operating Leases or Capital Leases in effect
on the Restructure Agreement Execution Date (and related to
the same property), shall be deemed to have been entered into
after the Restructure Agreement Execution Date only to the
extent that the scheduled cash rental payments required to be
made thereunder during any fiscal year of Lessee exceed the
scheduled cash rental payments required to be made during any
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fiscal year of Lessee under the replaced leases as in effect
on the Restructure Agreement Execution Date;
(d) (x) enter into any transaction of merger or
consolidation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell,
lease, sublease, transfer or otherwise dispose of, in one
transaction or a series of transactions, all or substantially
all of its business, property or fixed assets, whether now
owned or hereafter acquired, (y) change to any substantial
extent any line or lines of business activity engaged in by
Lessee as described in the Business Plan, or (z) engage to any
substantial extent in any line or lines of business other than
airfreight and airfreight services consistent with the
Business Plan; PROVIDED, HOWEVER:
(i) any Subsidiary of Parent may be
merged with or into Parent, Lessee or Polar, or
(other than Lessee or Polar) be liquidated, wound up
or dissolved; PROVIDED that, in the case of such a
merger, Parent, Lessee or Polar shall be the
continuing or surviving corporation; and
(ii) any Subsidiary of Parent may
convey, lease (subject, in the case of Lessee, to
Section 7.2.7), license, sell or otherwise transfer
all or substantially all of its business, properties
or assets to Parent, Lessee or Polar in one
transaction or a series of transactions, so long as
any security interests and liens granted to Lessor
and Mortgagee in the assets so transferred shall
remain in full force and effect and perfected (to at
least the same extent as in effect immediately prior
to such transfer) and all actions required to
maintain said perfected status have been taken;
(e) in addition to and not in limitation of, any
other term, covenant or condition set forth in this Lease (x)
any Indebtedness of Parent and its Subsidiaries which shall be
subordinated in right of payment to any other Indebtedness of
Parent and its Subsidiaries shall also be expressly
subordinated in right of payment on the same basis to the
obligations under the Credit Agreement, the Lease, the
Equipment Notes, the Other EETC Transactions and AFL III
Financing Agreement and (y) no repayments of any such
subordinated Indebtedness (except scheduled payments of
principal and interest or mandatory prepayments of principal)
shall be made unless, on a pro forma basis after giving effect
to such repayment, Parent and its Subsidiaries shall be able
to incur an additional $1.00 of Indebtedness under the
Additional Indebtedness Incurrence Conditions; or
(f) create or become or remain liable with
respect to any Contingent Obligation, except:
(i) Parent and any Subsidiary may
become and remain liable with respect to Contingent
Obligations arising under their guaranties under the
Credit Agreement, the Lease, the Other EETC
Transactions, the Polar Guaranty and the Parent
Guaranty;
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(ii) Lessee may become and remain liable
with respect to Contingent Obligations under Interest
Rate Agreements and Currency Agreements with a lender
under the Credit Agreement;
(iii) Parent and its Subsidiaries may
become and remain liable with respect to Contingent
Obligations in respect of customary indemnification
and purchase price adjustment obligations incurred in
connection with sales of assets or securities;
(iv) Parent and its Subsidiaries may
become and remain liable with respect to letters of
credit issued under the Exit Facility;
(v) Parent and its Subsidiaries may
become and remain liable with respect to letters of
credit issued in the ordinary course of business of
Parent and its Subsidiaries in an amount not to
exceed $5,000,000 in the aggregate at any time;
(vi) Parent and its Subsidiaries, as
applicable, may remain liable with respect to
Contingent Obligations described in Schedule 8.4.1
(f)(vi) annexed hereto (other than in respect of
letters of credit);
(vii) Parent and its Subsidiaries may
become and remain liable with respect to Contingent
Obligations to the extent such Contingent Obligations
are permitted pursuant to Section 8.4.1(c); and
(viii) Parent and its Subsidiaries may
become and remain liable with respect to other
Contingent Obligations; PROVIDED that the maximum
aggregate liability, contingent or otherwise, of
Lessee and its Subsidiaries in respect of all such
Contingent Obligations shall at no time exceed
$10,000,000.
8.4.2 ENHANCEMENTS
If, after the Restructure Agreement Execution Date and prior
to the Special Covenants Termination Date, any Other Creditor receives
any Enhancement in connection with any amendment, waiver or
modification of the terms of such Other Creditor's written contract
with Lessee regarding any action, inaction, state of affairs or item
which constitutes an event of default or may have become an event of
default under the terms of such Other Creditor's written contract with
Lessee without such amendment, waiver or modification. Lessee shall (a)
give prompt notice to Mortgagee and Lessor describing in reasonable
detail the amendment, waiver or modification and the Enhancement given
in connection therewith, and (b) cause Lessor to simultaneously receive
equal and identical (or if identical is not possible, substantially
identical) Enhancements (calculated as the net economic benefit to such
Other Creditor, but not less than zero); PROVIDED that any settlement
by Lessee in the ordinary course of business of contractual aircraft
return condition obligations of Lessee regarding an aircraft which does
not exceed the amount of the applicable contractual aircraft return
condition obligation of Lessee shall not constitute an Enhancement for
the purposes hereof. Enhancements which are calculated on a
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per unit basis will be provided to Lessor on a per unit basis, and
Enhancements which are provided as a percentage of outstanding
obligations shall be provided to Lessor pro rata in the proportion that
the debt then outstanding on the Series A Equipment Notes bears to the
amount of the obligation owed to such Other Creditor. Enhancements
which are payable in cash shall be paid by Lessee to Lessor hereunder
either (i) as additional Rent in the case of Enhancements which are
being provided because an Other Creditor is receiving new or increased
rent, debt payments or other periodic payments, fees or compensation
("ENHANCEMENT RENT") or (ii) as Supplemental Rent in the case of
Enhancements which are being provided because an Other Creditor
received maintenance reserves or other non-periodic payments, fees or
compensation.
8.4.3 ADDITIONAL SALE PROVISIONS. Xxxxxx agrees to comply with
the provisions of Schedule 8.4.3.
8.4.4 PROTECTIONS FOR THE USE AND DEPRECIATION OF THE
AIRCRAFT
Without limiting the generality of the provisions of Section
8.1 hereof, after the Restructure Agreement Execution Date, Lessee
shall have the following obligations, in addition to any other
obligations under this Lease with respect to the maintenance of the
Aircraft and Engines:
(a) Lessee shall at all times maintain the
Airframe and each Engine in airworthy condition, including the
performance of all procedures and checks necessary to keep the
Aircraft and each Engine in an airworthy condition, and
without limiting the generality of the foregoing, Lessee shall
perform all airframe "D-Checks" as required for further
operation of the Aircraft (with no extensions of D-Check
intervals by more than one year beyond the manufacturer's
recommended D-Check interval, in each case as approved by the
FAA), and perform all Engine overhauls as required by the
Engine's condition.
(b) Lessee shall establish, maintain in effect
at all times and timely fund all payments under an Engine
Maintenance Contract designed to meet the objectives set forth
in paragraphs 1(a)(i) and (ii) of the Maintenance Schedule (as
that term is defined in clause (c) below) (the "OBJECTIVES").
(c) Schedule 8.4.4(c) (the "MAINTENANCE
SCHEDULE") sets forth responsibilities and obligations that
Lessee will timely and fully perform and Xxxxxx agrees to each
of the terms, conditions, covenants and other requirements set
forth therein. Capitalized terms used in this Section 8.4.4
and not otherwise defined in this Amendment No. 1 to Lease
Agreement shall have the meanings ascribed to them in the
Maintenance Schedule.
(d) Except as otherwise provided in Section
8.4.4(f), (g) or (i) or the Maintenance Schedule, Lessee (i)
will maintain the Engine Maintenance Contract in accordance
with the terms thereof, (ii) will not consent to any
amendment, supplement or waiver of any of the provisions of
the Engine Maintenance Contract without the prior written
consent of Mortgagee and Lessor (other than amend-
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ments, supplements or waivers that (A) have no adverse effect
on any obligation to maintain the Airframe or the Engines or
(B) have no material effect on any other provision of the
Engine Maintenance Contract), or (iii) will not enter into any
additional Engine Maintenance Contract in replacement (whether
in partial replacement or complete replacement) of the Engine
Maintenance Contract without the prior written consent of
Mortgagee and Lessor; PROVIDED, HOWEVER, that the consent of
Lessor shall not be required under this clause (d) so long as
Mortgagee has not given notice to Lessee that the Lien of the
Trust Indenture has been duly discharged. For the avoidance of
doubt, any reduction to or delay in any payment obligation
under any Engine Maintenance Contract shall be material except
any such change, reduction or delay which is effected pursuant
to Section 8.4.4(g).
(e) To monitor the maintenance activities
contemplated by the Engine Maintenance Contract, (i) not later
than the fifteenth day of each calendar month, Lessee shall
provide to the Consultant the Report required by paragraph
1(e) of the Maintenance Schedule with respect to the use and
operation of each Engine in the immediately preceding month,
(ii) not later than the twenty-fifth day of each month Lessee
shall cause the Engine Maintenance Contractor to provide the
Consultant with a report that indicates the current credit
balance for each Engine under the applicable Engine
Maintenance Contract, and (iii) not later than the twentieth
day after December 31, 2005 and not later than the twentieth
day after every second year thereafter commencing with 2007,
Lessee shall provide to the Consultant a certificate from an
executive officer of Lessee certifying, as of the relevant
date, (A) that all of the assumptions set forth in Schedule
8.4.4(e) to Amendment No. 1 to Lease Agreement (the
"ASSUMPTIONS") continue to be correct and accurate in all
respects ( or, if the Assumptions are no longer correct and
accurate, certifying as to the ways in which the Assumptions
have changed) and (B) that the maintenance programs provided
under the Engine Maintenance Contract have met the Objectives
(or, if they have not met the Objectives, certifying as to the
ways in which the Objectives have not been met).
(f) If the information provided to or obtained
by the Consultant indicates that the Objectives are not being
met, including without limitation, due to a failure to meet
the obligations under the Engine Maintenance Contract, or that
there has been either a change in any material respect in the
Assumptions upon which the Engine Maintenance Contract is
based or any material variance in meeting the Objectives, the
Consultant, after consultation with the 1998 Class A
Certificateholders as Consultant can reasonably identify and
after reasonable discussions and consultation with Lessee,
shall by written notice to Lessee (x) advise Lessee of such
non-compliance, failure to meet its obligations, changed
circumstances or a material variance, and (y) specify
reasonable actions or adjustments respecting maintenance in
order to comply with its obligations contemplated by this
Section and the Maintenance Schedule. Lessee shall have 30
days from the delivery of such notice to comply with the
obligations specified in the Consultant's notice, which shall
be implemented as provided in clause (g) hereof.
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(g) Beginning December 31, 2005 and every two
years thereafter the Consultant will review the Assumptions to
determine whether changes in the Assumptions that have
occurred, or are reasonably expected to occur, require changes
to the remaining life limits and/or rate per flight hour
amounts so that the Objectives can be met. Within 20 days of
December 31, 2005 and within 20 days of every second year
thereafter commencing with December 31, 2007, Lessee shall
provide to the Consultant the maintenance conditions of the
Engines and Airframe and the variance of such conditions from
the Objectives (the "VARIANCE"), together with the engine
overhaul costs pursuant to the then Engine Maintenance
Contract and the contractor quotes or cost estimates for the
next D-checks (including landing gear, if necessary) for the
Airframe and the then-applicable values for the Assumptions.
If the Variance is more than 0.5% of the time remaining under
either of the two Objectives or there are material differences
for the future periods in the Assumptions, then Lessee will
propose to the Consultant an increase or decrease in the
monthly payments per engine flight hour under the
then-applicable Engine Maintenance Contract so as to eliminate
such Variance over the next twelve (12) months, giving effect
to Assumptions then applicable for future periods; PROVIDED
that the Variance will be eliminated over a period longer than
twelve (12) months, but not to exceed twenty-four (24) months,
if such increase in payments per flight hour would have been
more than 110% of the payments per flight hour applicable for
the month ended December 31, 2005, or the month ended December
31 of every second year thereafter commencing with December
31, 2007.
(h) Lessee shall pay, promptly upon demand, all
reasonable costs and expenses of the Consultant in connection
with Xxxxxx's compliance with this Section 8.4.4 (the
"CONSULTANT COSTS AND EXPENSES"). The Consultant Costs and
Expenses shall be paid by Xxxxxx directly and shall not be
satisfied from any amounts otherwise paid by Lessee under the
Operative Agreements.
(i) Lessee's obligation to maintain the Engine
Maintenance Contract will end on the earlier to occur of (i)
the date that the aggregate amount outstanding on the Series A
Equipment Notes for the Aircraft is $30 million or less, and
(ii) the date that the senior unsecured debt of Lessee
achieves the Required Rating, in either case, however, only if
(x) the Aircraft and the Other 1998 EETC Aircraft are then in
compliance with the provisions of Section 8.1 and of this
section 8.4.4 or (y) Lessee is no longer subject to any
obligation to maintain the Engine Maintenance Contract with
respect to such Other 1998 EETC Aircraft.
(j) Notwithstanding anything to the contrary
contained herein, (i) Lessee shall not take the Aircraft out
of use or operation other than for required maintenance,
unless at such time the Objectives have been met, (ii) at all
times while the Aircraft is taken out of use or operation
Lessee shall comply with the requirements set forth in Section
8.1 and this Section 8.4.4, and (iii) this Section 8.4.4 shall
in no way result in any adverse change to Lessee's obligations
to maintain the Aircraft under the Original Lease.
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(k) Notwithstanding anything to the contrary
herein, this Section 8.4.4 is intended to supplement Lessee's
maintenance obligations set forth in Section 8.1 and Annex C
and the return conditions set forth in Section 5 and Annex B;
PROVIDED, HOWEVER, if any of the obligations, standards or
requirements set forth in this Section 8.4.4 conflict with or
are inconsistent with Section 8.1 or Annex C or Section 5 or
Annex B and such conflict or inconsistency (i) results in any
adverse effect on Lessor's rights with respect to any of the
maintenance provisions contained in Section 8.1 or Annex C or
any of the return conditions contained in Section 5 or Annex B
or (ii) reduces any of Lessee's obligations or requirements or
makes any of the standards less restrictive under Section 8.1
or Annex C or Section 5 or Annex B, then Lessee shall comply
with the relevant obligation(s), standard(s) or requirement(s)
set forth in the applicable provisions of Section 8.1 or Annex
C or Section 5 or Annex B, as the case may be.
8.4.5 BANK LENDER COVENANTS
If, before the occurrence of an Action Event, the Bank Lenders
waive or amend Sections 6.1,6.4,6.7, 6.9(A), 6.14 or 6.16 of the Credit
Agreement (and the definitions relating thereto), then Sections
8.4.1(b) - (f) (and the definitions relating thereto) shall be deemed
to have been waived or amended in the same manner, so long as Lessee
has complied with Section 8.4.2; PROVIDED, HOWEVER, that the provisions
of Sections 8.4.1(b) - (f) shall not be amended, waived or otherwise
affected by any amendments or waivers that were made or given in
anticipation of or in connection with any payment in full (or securing
by collateral consisting of cash, cash equivalents, letters of credit,
surety bonds or the equivalent thereof) of the obligations owed to such
Bank Lenders.
SECTION 6. AMENDMENTS TO SECTION 9 OF THE ORIGINAL LEASE. (A)
Section 9.2.2(b)(i) of the Original Lease is hereby amended by deleting such
section in its entirety and substituting the following in lieu thereof:
(i) all unpaid Basic Rent or Enhancement Rent due at any
time prior to such Termination Date but excluding any Basic Rent or
Enhancement Rent payable on such Termination Date; plus
(B) Section 9.2.2(c)(ii) of the Original Lease is hereby
amended by deleting such section in its entirety and substituting the following
in lieu thereof:
(ii) the obligation of Lessee to pay Basic Rent or
Enhancement Rent on or after the Payment Date with reference to which
Termination Value is computed, shall cease, and the Term for the
Aircraft shall end effective as of the date of such sale.
(C) Section 9.3(a)(iii)(1) of the Original Lease is
hereby amended by deleting such section in its entirety and substituting the
following in lieu hereof:
(1) all unpaid Basic Rent and Enhancement Rent due at any
time prior to such Termination Date (or any later date agreed by the
parties pursuant to Section 9.2.2(d)) but excluding any Basic Rent and
Enhancement Rent payable on such Termination Date (or any later date
agreed by the parties pursuant to Section 9.2.2(d)); plus
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(D) Section 9.3(b)(ii) of the Original Lease is hereby
amended by deleting such section in its entirety and substituting the following
in lieu thereof:
(i) The obligation of Lessee to pay Basic Rent and
Enhancement Rent otherwise due on or after the Termination Date shall
cease, and the Term for the Aircraft shall end effective as of such
Termination Date.
SECTION 7. AMENDMENTS TO SECTION 10 OF THE ORIGINAL LEASE.
(A) Section 10.1.2(a)(i) of the Original Lease is hereby amended by deleting
such clause in its entirety and substituting the following in lieu thereof:
(i) on the Stipulated Loss Value Date next following the
earlier of (x) the 180th day following the date of the occurrence of
such Event of Loss, and (y) no later than the third Business Day
following the receipt of all insurance proceeds with respect to such
occurrence (but in any event not earlier than the date of Lessee's
election under Section 10.1.1 to make payment under this Section
10.1.2), Lessee shall pay to Lessor an amount equal to the Stipulated
Loss Value of the Aircraft as of the Loss Payment Date plus (a) all
unpaid Basic Rent or Enhancement Rent, as the case may be, due prior to
the Loss Payment Date, but excluding any unpaid Basic Rent or
Enhancement Rent, as the case may be, payable on or before such Loss
Payment Date, plus (b) all amounts of Supplemental Rent due on or
before the Loss Payment Date and any reasonable expenses and costs
incurred in connection with such Event of Loss by Lessor or Mortgagee
(including with respect to Make-Whole Amount, if any).
(B) Section 10.1.2(b) of the Original Lease is hereby
amended by deleting such clause in its entirety and substituting the following
in lieu thereof:
(b) Upon payment in full of all amounts described in the
foregoing paragraph (a), (i) the obligation of Lessee to pay Basic Rent
and Enhancement Rent hereunder with respect to the Aircraft shall
terminate, (ii) the Term for the Aircraft shall end and (iii) Lessor
will transfer the Aircraft to Lessee, as-is and where-is, and subject
to any insurer's salvage rights, but otherwise in the manner described
in Section 4.5.
(C) Section 10.5.3(a) of the Original Lease is hereby
amended by deleting the words ", except with respect to Excluded Payments"
therefrom.
(D) Section 10.6 of the Original Lease is hereby amended
by deleting such section in its entirety and substituting the following in lieu
thereof:
10.6 REQUISITION OF AIRCRAFT FOR USE
If any Government Entity shall requisition for use the
Airframe and the Engines or engines installed thereon (including the
U.S. Government pursuant to CRAF), and if the same does not constitute
an Event of Loss, Lessee shall promptly notify Lessor and Mortgagee of
such requisition and all of Lessee's obligations under this Agreement
shall continue to the same extent as if such requisition had not
occurred; PROVIDED, HOWEVER, that if the Airframe and Engines or
engines installed thereon are not returned to Lessor by Xxxxxx at the
end of the Term or within 180 days thereafter, and Lessor, upon notice
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given not less than 30 days nor more than 120 days before the end of
the Term, shall have elected to treat such event as constituting an
Event of Loss with respect to the Aircraft, Lessee shall then be deemed
to have made the election set forth in Section 10.1.2 with the effect
that Lessee shall be obligated to pay the Stipulated Loss Value and all
other amounts payable pursuant to Section 10.1.2 with respect to the
Aircraft as if an Event of Loss had occurred as of the end of the Term.
If Lessor shall not have elected to treat such event as an Event of
Loss, Lessee shall be obligated to return the Airframe and Engines or
engines to Lessor pursuant to, and in all other respects to comply with
the provisions of, Section 5 promptly upon their return by such
Government Entity, and Lessee shall pay to Lessor upon such return for
each day after the end of the Term to but excluding the day of such
return, up to a maximum of 30 days, an amount equal to (i) the daily
equivalent rate equal to average daily Basic Rent payable by Lessor
during the Base Lease Term plus (ii) the daily equivalent rate of
Enhancement Rent, if applicable at the time, payable during the final
Payment Period.
SECTION 8. AMENDMENT TO SECTION 12 OF THE ORIGINAL LEASE.
Section 12 of the Original Lease is hereby amended by adding the following to
the end of such Section 12 as a new clause (g):
(g) In addition to any inspection as provided hereunder,
an aviation professional designated by Mortgagee and Lessor and chosen
from the list attached to Amendment No.1 to Lease Agreement in Schedule
12(g) (the "SPECIAL INSPECTOR") may, at the times and intervals and on
the other terms and conditions set forth in this Section 12 as are
provided with respect to the Inspecting Parties, inspect the Aircraft,
the Airframe and the Engines (including without limitation, the
Aircraft Documents), make copies of such Aircraft Documents not
reasonably deemed confidential by Lessee or such Permitted Sublessee,
and share the results of such inspection and such copies with Mortgagee
and Lessor, and such Special Inspector shall have such rights to
information as the other Inspecting Parties have under this Section 12;
PROVIDED, HOWEVER, that Lessor shall not have any rights with respect
to the designation of the Special Inspector (and, therefore, only
Mortgagee shall have rights with respect to the designation of the
Special Inspector) so long as Mortgagee has not given notice to Lessee
that the Lien of the Trust Indenture has been duly discharged.
SECTION 9. AMENDMENTS TO SECTION 13 OF THE ORIGINAL LEASE.
(A) Section 13.2.1 of the Original Lease is hereby amended by adding the words
"Subject to the provisions of Section 8.4.1 (d)," in front of the first word of
such section.
(B) Section 13.3 of the Original Lease is hereby amended
by deleting the words "(other than Excluded Payments)" therefrom.
SECTION 10. AMENDMENTS TO SECTION 14 OF THE ORIGINAL LEASE.
(A) Section 14 of the Original Lease is hereby amended as follows: The eighth
line of Section 14 is amended by adding the phrase "within any cure period
provided for herein with respect to such matter" after the word "remedied" and
before the ":".
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(B) Section 14.1 of the Original Lease is hereby amended
by deleting such section in its entirety and substituting the following in lieu
thereof:
14.1 PAYMENTS
Lessee shall fail to pay any amount of Basic Rent, Stipulated
Loss Value, Termination Value or Enhancement Rent when due and such
failure shall continue for ten (10) Business Days after the same shall
have become due; or Lessee shall fail to pay any Supplemental Rent
(other than Stipulated Loss Value or Termination Value) when due and
such failure shall continue for ten (10) Business Days from and after
the date of any written notice to Lessee from Lessor or Mortgagee of
the failure to make such payment when due.
(C) Sections 14.3 and 14.4 of the Original Lease are
hereby amended by deleting such sections in their entirety and substituting the
following Sections 14.3 and 14.4 in lieu thereof:
14.3 OTHER COVENANTS
(a) If Lessee shall fail to observe or perform (or cause
to be observed and performed) in any material respect any other
covenant, agreement or obligation set forth herein or in any other
Lessee Operative Agreement (other than the covenants, agreements and
obligations set forth in Sections 8.4.1, 8.4.2, 8.4.3, 8.4.4 and 12(g))
and such failure continues unremedied for a period of 30 days from and
after the date of written notice thereof to Lessee from Lessor or
Mortgagee, unless such failure is capable of being corrected and Lessee
shall be diligently proceeding to correct such failure, in which case
there shall be no Lease Event of Default unless and until such failure
shall continue unremedied for a period of 120 days after receipt of
such notice.
(b) If Parent or Polar shall fail to observe or perform
(or cause to be observed and performed) in any material respect any
covenant, agreement or obligation set forth in the Parent Guaranty, the
Parent Security Agreement, the Polar Guaranty or the Polar Security
Agreement, and such failure continues unremedied for a period of 30
days from and after the date of written notice thereof to Lessee from
Lessor or Mortgagee, unless such failure is capable of being corrected
and Polar or Parent, as applicable, shall be diligently proceeding to
correct such failure, in which case there shall be no Lease Event of
Default unless and until such failure shall continue unremedied for a
period of 120 days after receipt of such notice.
14.4 REPRESENTATIONS AND WARRANTIES
(a) Any representation or warranty made by Lessee herein,
in the Participation Agreement or in any other Lessee Operative
Agreement or in any certificate required to be delivered by Lessee
pursuant thereto (other than the representations and warranties made by
Lessee in clauses (x), (xi), (xii), (xiii) and (xv) in Section 7(a) of
the Restructure Agreement) (i) shall prove to have been untrue or
inaccurate in any material respect as of the date made, (ii) such
untrue or inaccurate representation or warranty is material at the time
in question and (iii) the same shall remain uncured (to the extent of
the adverse im-
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pact of such incorrectness on the interest of the Participants or
Lessor) for a period of 30 days from and after the date of written
notice thereof to Lessee from Lessor or Mortgagee.
(b) Any representation or warranty made by Parent or
Polar, in the Parent Guaranty, the Parent Security Agreement, the Polar
Guaranty or the Polar Security Agreement, (i) shall prove to have been
untrue or inaccurate in any material respect as of the date made, (ii)
such untrue or inaccurate representation or warranty is material at the
time in question and (iii) the same shall remain uncured (to the extent
of the adverse impact of such incorrectness on the interest of the
Participants or Lessor) for a period of 30 days from and after the date
of written notice thereof to Lessee from Lessor or Mortgagee.
(D) Section 14 of the Original Lease is hereby amended by
adding the following to the end of Section 14.5 as new Sections 14.5(d)
through (i):
(d) Parent shall consent to the appointment of or the
taking of possession by a receiver, trustee or liquidator of itself or
of substantially all of its property, or Parent shall admit in writing
its inability to pay its debts generally as they come due, or does not
pay its debts generally as they become due or shall make a general
assignment for the benefit of creditors, or Parent shall file a
voluntary petition in bankruptcy or a voluntary petition or an answer
seeking reorganization, liquidation or other relief in a case under any
bankruptcy Laws or other insolvency Laws (as in effect at such time) or
an answer admitting the material allegations of a petition filed
against Parent in any such case, or Parent shall seek relief by
voluntary petition, answer or consent, under the provisions of any
other bankruptcy or other similar Law providing for the reorganization
or winding-up of corporations (as in effect at such time), or Parent
shall seek an agreement, composition, extension or adjustment with its
creditors under such Laws, or Parent's board of directors shall adopt a
resolution authorizing any of the foregoing; or
(e) an order, judgment or decree shall be entered by any
court of competent jurisdiction appointing, without the consent of
Parent, a receiver, trustee or liquidator of Parent or of substantially
all of its property, or substantially all of the property of Parent
shall be sequestered, and any such order, judgment or decree of
appointment or sequestration shall remain in force undismissed,
unstayed and unvacated for a period of 90 days after the date of entry
thereof; or
(f) a petition against Parent in a case under any
bankruptcy Laws or other insolvency Laws (as in effect at such time) is
filed and not withdrawn or dismissed within 90 days thereafter, or if,
under the provisions of any Law providing for reorganization or
winding-up of corporations which may apply to Parent, any court of
competent jurisdiction assumes jurisdiction, custody or control of
Parent or of substantially all of its property and such jurisdiction,
custody or control remains in force unrelinquished, unstayed and
unterminated for a period of 90 days.
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(g) Polar shall consent to the appointment of or the
taking of possession by a receiver, trustee or liquidator of itself or
of substantially all of its property, or Polar shall admit in writing
its inability to pay its debts generally as they come due, or does not
pay its debts generally as they become due or Polar shall make a
general assignment for the benefit of creditors, or Polar shall file a
voluntary petition in bankruptcy or a voluntary petition or an answer
seeking reorganization, liquidation or other relief in a case under any
bankruptcy Laws or other insolvency Laws (as in effect at such time) or
an answer admitting the material allegations of a petition filed
against Polar in any such case, or Polar shall seek relief by voluntary
petition, answer or consent, under the provisions of any other
bankruptcy or other similar Law providing for the reorganization or
winding-up of corporations (as in effect at such time), or Polar shall
seek an agreement, composition, extension or adjustment with its
creditors under such Laws, or Polar's board of directors shall adopt a
resolution authorizing any of the foregoing; or
(h) an order, judgment or decree shall be entered by any
court of competent jurisdiction appointing, without the consent of
Polar, a receiver, trustee or liquidator of Polar or of substantially
all of its property, or substantially all of the property of Polar
shall be sequestered, and any such order, judgment or decree of
appointment or sequestration shall remain in force undismissed,
unstayed and unvacated for a period of 90 days after the date of entry
thereof; or
(i) a petition against Polar in a case under any
bankruptcy Laws or other insolvency Laws (as in effect at such time) is
filed and not withdrawn or dismissed within 90 days thereafter, or if,
under the provisions of any Law providing for reorganization or
winding-up of corporations which may apply to Polar, any court of
competent jurisdiction assumes jurisdiction, custody or control of
Polar or of substantially all of its property and such jurisdiction,
custody or control remains in force unrelinquished, unstayed and
unterminated for a period of 90 days.
(E) Section 14 of the Original Lease is hereby amended by
adding the following to the end of such Section 14 as new Sections 14.6, 14.7,
14.8 and 14.9:
14.6 CROSS DEFAULT
Following the Restructure Agreement Execution Date, (a) Lessee
shall fail to pay when due, or within any applicable grace period, any
obligation under the GECAS Documents, the Boeing Documents, the Bank
Lender Documents or the Other EETC Transaction Documents (an "OTHER
CREDITOR PAYMENT DEFAULT"), (b) Lessee shall fail to observe or perform
any term, covenant or agreement contained in the GECAS Documents, the
Boeing Documents, the Bank Lender Documents or the Other EETC
Transaction Documents for such period of time as would permit (assuming
the giving of appropriate notice if required) GECAS, Boeing, the Bank
Lenders or any Other EETC Transaction Person to accelerate the maturity
of any indebtedness of Lessee relating thereto or to terminate the
lease relating thereto (an "OTHER CREDITOR NON-PAYMENT DEFAULT") or (c)
there is an acceleration of obligations exceeding $50,000,000 in the
aggregate owed to one or more Other Accelerated Creditors (an
"ACCELERATION"); PROVIDED, HOWEVER, that no default under subsection
7.2(i) and 7.2(ii) of the Credit Agreement (or any similar provi-
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xxxx subsequently incorporated therein or included in any documents
executed in connection with a Bank Debt Refinancing) based on a default
under an agreement with an Other Accelerated Creditor shall constitute
a Lease Event of Default under this Section 14.6, unless there is an
acceleration of obligations exceeding $50,000,000 with respect to such
default or there is an acceleration of default by GECAS, Boeing or the
Bank Lenders as a result of such default.
14.7 MAINTENANCE CONTRACTS
If (a) Lessee fails or refuses to comply with the obligations
in the Consultant's notice referred to in Section 8.4.4(f), (b) Lessee
defaults on any of its material obligations under any Engine
Maintenance Contract, and (c) any Engine Maintenance Contractor
breaches any of its material obligations under any Engine Maintenance
Contract, such breach is not remedied within any cure period set forth
in such Engine Maintenance Contract, and Lessee fails to replace such
Engine Maintenance Contractor with another maintenance contractor of
international stature acceptable (and pursuant to a contract that is
acceptable and an assignment that is acceptable to Lessor and Mortgagee
and executed by Lessee) to Lessor and Mortgagee within 90 days after
the date of such breach by Engine Maintenance Contractor (or, if there
is a cure period, after the end of such cure period), which replacement
maintenance contract is funded at the same level as the maintenance
contract that it replaced, and any of the foregoing continues for 30
days after the earlier of (i) notice thereof to Lessee from Lessor or
Mortgagee, and (ii) knowledge thereof by any executive officer (or any
officer with responsibility in relation to this Lease or any other
person determining senior management policies or exercising executive
responsibilities) of Lessee; PROVIDED, HOWEVER, that Lessor shall not
have any rights with respect to the acceptance of any Engine
Maintenance Contract or Engine Maintenance Contractor so long as
Mortgagee has not given notice to Lessee that the Lien of the Trust
Indenture has been duly discharged.
14.8 SPECIAL COVENANT DEFAULT
Subject to Section 8.4.5 hereof, if Lessee shall fail to
observe or perform (or cause to be observed and performed) in any
material respect any covenant, agreement or obligation set forth in
Sections 8.4.1, 8.4.2, 8.4.3, 8.4.4 or 12(g) and such failure continues
Unremedied for a period of 30 days from and after the earlier of the
date of (i) written notice thereof to Lessee from Lessor or Mortgagee,
and (ii) actual knowledge thereof by any executive officer (or any
officer with responsibility in relation to this Lease or any other
person determining senior management policies or exercising executive
responsibilities) of Lessee, unless such failure is capable of being
corrected and Lessee shall be diligently proceeding to correct such
failure, in which case there shall be no Lease Event of Default unless
and until such failure shall continue unremedied for a period of 120
days after receipt of the notice referenced in clause (i) hereof or the
date such officer or other person referred to in clause (ii) has actual
knowledge, as applicable.
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14.9 SPECIAL REPRESENTATION DEFAULT
If any representation or warranty made by Lessee in clause
(x), (xi), (xii), (xiii) or (xv) in Section 7(a) in the Restructure
Agreement (i) shall prove to have been untrue or inaccurate in any
material respect as of the date made, (ii) such untrue or inaccurate
representation or warranty is material at the time in question and
(iii) the same shall remain uncured (to the extent of the adverse
impact of such incorrectness on the interest of Mortgagee or Lessor)
for a period of 30 days from and after (1) with respect to a
representation or warranty which is untrue or inaccurate in any
material respect due to a provision in a Disclosed Other Creditor
Document (as defined in clause (xiii) of Section 7(a) of the
Restructure Agreement) other than a provision thereof which was not
delivered to the Mortgagee, the date of written notice thereof to
Lessee from Lessor or Mortgagee, or (2) with respect to a
representation or warranty which is untrue or inaccurate in any
material respect due to a provision in any Other Creditor Amendment
with respect to a 747-400 Aircraft, a provision in any 747-400 Aircraft
Agreement, or a provision in any Other Creditor Amendment with respect
to a lease, indenture, mortgage, contract or other agreement to which
the Lessee and the Bank Lenders are parties with respect to 747-200
Aircraft, which is not a Disclosed Other Creditor Document (or a
provision in a Disclosed Other Creditor Document with respect to any of
the foregoing which was not delivered to the Mortgagee), the earlier of
(x) the date of written notice thereof to Lessee from Lessor or
Mortgagee, and (y) the date that any executive officer (or any officer
with responsibility in relation to this Lease or any other person
determining senior management policies or exercising executive
responsibilities) of Lessee obtains actual knowledge of such provision
that has resulted in such representation or warranty being untrue or
inaccurate, unless (in the case of clause (1) or (2)) such adverse
impact is capable of being corrected and Lessee shall be diligently
proceeding to correct such adverse impact, in which case there shall be
no Lease Event of Default under this Section 14.9 as a result of such
representation or warranty being untrue or inaccurate unless and until
such adverse impact shall continue unremedied for a period of 120 days
after, in the case of clause (1), the giving of the notice referenced
in clause (1) hereof or, in the case of clause (2), the earlier of the
dates referred to in clauses (x) and (y) of such clause (2).
SECTION 11. AMENDMENTS TO SECTION 15 OF THE ORIGINAL LEASE.
(A) Section 15.1.1 of the Original Lease is hereby amended by deleting the words
"or any Renewal Lease Term."
(B) The eleventh line of Section 15.1.3 of the Original
Lease is hereby amended by deleting the words "or Renewal Rent" and substituting
the words "and Enhancement Rent" in their stead.
(C) Section 15.1.3(a) is hereby amended by deleting the
words "or Renewal Rent" and substituting the words "and Enhancement Rent" in
their stead.
(D) Section 15.1.3(b)(i) is hereby amended by deleting
such clause in its entirety and substituting the following in lieu thereof:
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(i) an amount equal to the excess, if any, of the present
value, computed as of the Stipulated Loss Value Date specified in such
notice, discounted to such date at a rate per annum equal to the Debt
Rate, compounded semiannually, of all unpaid Basic Rent during the then
remaining portion of the Base Lease Term, over the Fair Market Rental
Value of the Aircraft for the remainder of the Term, after discounting
such Fair Market Rental Value to its then present value (at a rate per
annum equal to the Debt Rate, compounded semiannually) as of the
Stipulated Loss Value Date specified in such notice, or
(E) Line 10 of Section 15.1.4 and Section 15.1.4(a) are
hereby amended by deleting the words "or Renewal Rent," and substituting the
words "and Enhancement Rent" in their stead.
(F) Section 15 of the Original Lease is hereby amended by
adding the following to the end of such Section 15 as a new Section 15.1.7:
15.1.7 SPECIFIC REMEDIES UPON A CROSS DEFAULT
(a) Notwithstanding the foregoing, if a Lease Event of
Default occurs due to a Cross Default pursuant to Section 14.6 (and so
long as the term, covenant or agreement the non-observance or
non-performance of which gave rise to the Lease Event of Default
pursuant to Section 14.6 is not also a term, covenant or agreement
under the Lessee Operative Agreements that if not observed or performed
would constitute a Lease Event of Default other than pursuant to
Section 14.6), Lessor may exercise its rights and remedies under this
Lease only after the earliest of (i) 30 days following the occurrence
of an Other Creditor Payment Default or 60 days following the
occurrence of an Other Creditor NonPayment Default, (ii) acceleration
of the obligation that is the subject of the Other Creditor Payment
Default or the Other Creditor Non-Payment Default and (iii) an
Acceleration.
(b) If, before the occurrence of an Action Event, GECAS,
Boeing, any Other EETC Transaction Person, the Bank Lenders or any
Other Accelerated Creditor (i) waive an Other Creditor Payment Default
or an Other Creditor Non-Payment Default under the GECAS Documents, the
Boeing Documents, the Other EETC Transaction Documents or the Bank
Lender Documents, respectively, or cancel or rescind the Acceleration
or (ii) amend the provisions of the GECAS Documents, the Boeing
Documents, the Bank Lender Documents, the Other EETC Transaction
Documents or Other Accelerated Creditor Documents which gave rise to
the Other Creditor Payment Default, Other Creditor Non-Payment Default
or Acceleration such that the Other Creditor Payment Default, the Other
Creditor Non-Payment Default or the Acceleration no longer exists, then
the Cross Default that would otherwise have occurred shall be deemed to
have been waived on the same terms and conditions, so long as (x) the
provision of the GECAS Documents, the Boeing Documents, the Bank Lender
Documents, the Other EETC Transaction Documents or the Other
Accelerated Creditor Documents which was so waived or amended is not
also a provision under the Lessee Operative Agreements that if not
waived or amended would constitute a Lease Event of Default other than
pursuant to Section 14.6, and (y) Lessee has complied with Section
8.4.2 hereof.
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SECTION 12. AMENDMENT TO SECTION 16 OF THE ORIGINAL LEASE.
Section 16(c) of the Original Lease is hereby amended by deleting the words
"Renewal Rent" and substituting the words "Enhancement Rent" in their stead.
SECTION 13. AMENDMENT TO SECTION 17 OF THE ORIGINAL LEASE.
Section 17 of the Original Lease is hereby deleted and the following is
substituted in lieu thereof:
SECTION 17. PURCHASE OPTIONS
17.1 PRELIMINARY NOTICES
At least 180 days prior to the Scheduled Expiration Date,
Lessee may provide written notice to Lessor that Lessee may exercise
the option to purchase the Aircraft on the Scheduled Expiration Date
pursuant to Section 17.3.1(a). Any such notice (a "PRELIMINARY NOTICE")
shall not be binding on Lessee. Promptly upon delivery of a Preliminary
Notice, Lessee and Lessor shall determine the Fair Market Sales Value
under Section 17.3.2. If within the 35 days allowed for determination
of the Fair Market Sales Value, the parties have not succeeded in
reaching agreement with respect to such Fair Market Sales Value, Lessee
and Lessor shall commence the appraisal process provided for in Section
17.4, and shall be subject to the timing constraints set forth in
Section 17.4.
17.2 [Intentionally Omitted]
17.3 PURCHASE OPTIONS
17.3.1 ELECTION
(a) Subject to the terms and conditions of this Section
17.3. Lessee or its designee may elect to purchase the Aircraft, on the
Purchase Date, at a purchase price equal to the Fair Market Sales Value
of the Aircraft (or, if greater, the Termination Value) computed as of
the Purchase Date.
(b) Lessee may exercise its option to purchase the
Aircraft by delivery of a written notice (a "PURCHASE NOTICE") to
Lessor not less than 90 days prior to the Scheduled Expiration Date.
(c) Notwithstanding anything to the contrary in this
Section 17:
(i) Any Purchase Notice under Section
17.3.1(b) shall be irrevocable and shall constitute
an unconditional obligation of Lessee to purchase the
Aircraft under this Section 17.3.
(ii) No Purchase Notice under Section
17.3.1(b) shall be binding on Lessor if any Lease
Event of Default or Specified Default shall have
occurred and be continuing on the Purchase Date.
(iii) At the election of Xxxxxx. any
purchase option described in this Section 17.3 may be
exercised by a designee of Lessee.
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17.3.2 DETERMINATION OF FAIR MARKET SALES VALUE
The Fair Market Sales Value of the Aircraft shall be
determined by mutual agreement of Lessor and Lessee (i) within 35 days
after delivery of a Preliminary Notice, if a Preliminary Notice has
been given, or (ii) if no Preliminary Notice has been given, within 35
days after delivery of a Purchase Notice under this Section 17.3 or, in
either case, if they shall be unable to agree, by an appraisal in
accordance with Section 17.4.
17.3.3 TITLE
Upon full and final payment by Lessee of (a) the applicable
purchase price of the Aircraft, (b) all unpaid Rent due and payable
through and including the Purchase Date, and (c) all other amounts due
and payable by Lessee under this Lease and any other Operative
Agreement, Lessor will transfer to Lessee or to a Person designated by
Lessee title to the Aircraft in accordance with Section 4.5.
17.4 APPRAISALS
Whenever Fair Market Sales Value of the Aircraft is required
to be determined by an appraisal under the foregoing provisions of this
Section 17, Lessee and Lessor shall, within seven days after the
expiration of the 35-day period referred to in Section 17.3.2, appoint
a mutually satisfactory Appraiser to complete such appraisal within
seven days of the appointment and the determination of such Appraiser
shall be final and binding on Lessor and Lessee. If Lessee and Lessor
fail to agree within such 7-day period upon a satisfactory Appraiser
then each shall within one day thereafter appoint a separate Appraiser
and such Appraisers shall within seven days of such appointment jointly
determine such amount, and such jointly determined amount shall be
final and binding on Lessor and Lessee. If either Lessee or Lessor
fails to so appoint an Appraiser, the determination of the single
Appraiser appointed shall be final and binding on Lessor and Xxxxxx. If
two Appraisers are appointed and within seven days after the
appointment of the latter of such two Appraisers, they cannot agree
upon such amount, such two Appraisers shall, within two days after such
seventh day, appoint a third Appraiser and such amount shall be
determined by such three Appraisers, who shall make their separate
appraisals within seven days following the appointment of the third
Appraiser, and any determination so made shall be conclusive and
binding upon Lessor and Lessee in accordance with the following
provisions of this Section 17. If three Appraisers are appointed and
the difference between the determination which is farther from the
middle determination and the middle determination is more than 125% of
the difference between the middle determination and the third
determination, then such farther determination shall be excluded, the
remaining two determinations shall be averaged and such average shall
be final and binding upon Lessor and Lessee. Otherwise, the average of
all three determinations shall be final and binding upon Xxxxxx and
Xxxxxx. If no such third Appraiser is appointed within such 2-day
period, either Lessor or Lessee may apply to the American Arbitration
Association to make such appointment, and both parties shall cooperate
in making, and be bound by, such appointment. The fees and expenses of
all such Appraisers and such appraisal procedure shall be borne by
Lessee.
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SECTION 14. NEW SECTION 19 TO THE ORIGINAL LEASE. The Original
Lease is hereby amended by adding the following section after Section 18 of the
Original Lease as a new Section 19:
19. LEASE EVENT OF DEFAULT
At any time after the Restructure Agreement Execution Date, if
a Lease Event of Default occurs (it being understood that for purposes
of this Section 19 a Lease Event of Default pursuant solely to Section
14.6 shall not take effect until the expiration of the applicable cure
periods set forth in clauses (i) and (ii) of Section 15.1.7(a) of this
Lease (a "15.1.7(a)(i) or (ii) EVENT") and that this Section 19 shall
take effect solely as a result of a 15.1.7(a)(i) or (ii) Event only if
such default has not been waived prior to the expiration of the
applicable cure periods), (a) an amount equal to the excess, if any, of
(x) the Basic Rent that would have been payable under this Lease
pursuant to Schedule 2 of the Original Lease after January 2, 2003
(which amount shall be determined by reference to Schedule 19 of
Amendment No. 1 to Lease Agreement for purposes of this Section 19
instead of Schedule 2 to the Original Lease) over (y) the sum of (i)
the Basic Rent that was paid under this Lease pursuant to Schedule 2 to
Amendment No. 1 to Lease Agreement after January 2, 2003 up to the date
of such Lease Event of Default plus (ii) the aggregate amount, if any,
of Enhancement Rent that was paid under this Lease prior to such Lease
Event of Default shall become immediately due and payable by Lessee to
Lessor on the date that such Lease Event of Default occurs (such
amounts payable under clause (a), the "LEASE AMENDMENT DEFAULT
AMOUNT"), shall become immediately due and payable by Lessee to Lessor
on the date that such Lease Event of Default occurs and (b) regardless
of whether any amounts are payable under clause (a) of this paragraph,
Basic Rent shall thereafter be payable under this Lease each month in
an amount equal to the higher of (A) the amount due under Schedule 19
to Amendment No. 1 to Lease Agreement in such month or (B) the amount
due under Schedule 2 to Amendment No.1 to Lease Agreement in such
month, and Xxxxxx's obligation to pay Enhancement Rent shall cease.
Upon the occurrence of a Lease Event of Default, any claim by Lessor
for any Termination Value or Stipulated Loss Value payable pursuant to
this Lease shall be determined, for any date of determination, by
reference to the higher of (A) the Termination Value or Stipulated Loss
Value (as the case may be) as set forth in Schedules 3 or 4 (as the
case may be) to the Original Lease or (B) the Termination Value or
Stipulated Loss Value (as the case may be) as set forth in Schedules 3
or 4 (as the case may be) to Amendment No. 1 to Lease Agreement. For
the avoidance of doubt, if Lessee pays Lessor any Lease Amendment
Default Amount upon the occurrence of a Lease Event of Default, Lessee
shall not be liable for such particular Lease Amendment Default Amount
again, regardless of the number of times Lessee defaults under this
Lease. In addition, for purposes of calculating the Lease Amendment
Default Amount, payments made by Lessee under Schedule 2 to Amendment
No. 1 to Lease Agreement as Basic Rent shall be applied against the
payments of Basic Rent which are set forth on Schedule 19 to Amendment
No. 1 to Lease Agreement in the order received. Nothing in this Section
19 is intended to or shall limit or prejudice in any manner or to any
extent the right of Lessor or Mortgagee, as applicable, to exercise all
rights and remedies that are available to Lessor or Mortgagee, as
applicable, under this Lease or under applicable law after the
occurrence and during the continuance of a Lease Event of Default.
-41-
SECTION 15. AMENDMENT TO SCHEDULE 1 - CERTAIN TERMS TO THE
ORIGINAL LEASE. Schedule 1 - Certain Terms to the Original Lease is hereby
deleted in its entirety and Schedule 1 Certain Terms attached to Exhibit A to
this Amendment is hereby substituted in lieu thereof.
SECTION 16. AMENDMENT TO ANNEX B TO THE ORIGINAL LEASE. Annex
B to the Original Lease is hereby amended by deleting the words "or the end of
any Renewal Lease Term" from the fIrst paragraph thereof.
SECTION 17. WAIVER. Lessor hereby waives the Specified Prior
Defaults and agrees that Xxxxxx will not exercise remedies solely by reason of
or in respect of any Specified Prior Default. For the avoidance of doubt, Xxxxxx
acknowledges that the foregoing waiver does not extend to (i) any failure by
Lessee to pay as and when due Basic Rent, Supplemental Rent or any other
obligation under the Lease after giving effect to this Amendment (other than the
failure to make the Basic Rent payments as and when due on February 2, 2004 and
March 2, 2004), including without limitation, any failure by Lessee to pay the
amounts required to be paid pursuant to Section 19 of the Lease as added by this
Amendment, (ii) any failure by Lessee to deliver financial statements as
provided in Section 8.2.1 of the Lease after giving effect to this Amendment or
(iii) any event or circumstance that constitutes a Lease Event of Default after
giving effect to this Amendment (other than the failure to make the Basic Rent
payments as and when due on February 2, 2004 and March 2, 2004), if such event
or circumstance continues to exist after the Restructure Agreement Execution
Date (other than the failure to make the Basic Rent Payments when due on
February 2, 2004 and March 2, 2004).
SECTION 18. LEASE. Except as amended by this Amendment, the
Original Lease remains unchanged and in full force and effect.
SECTION 19. LESSOR REPRESENTATION. Lessor confirms that the
Owner Participant has instructed Lessor to execute and deliver this Amendment
No. 1 to Lease Agreement.
SECTION 20. ENTIRETIES. This Amendment represents the final
agreement between the parties about the subject matter of this Amendment and may
not be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties. This Amendment shall be considered an "Operative Agreement" as such
term is defined in the Lease.
SECTION 21. COUNTERPARTS. This Amendment may be executed by
one of more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts when taken together
shall constitute one and the same instrument. Except as expressly provided for
herein, no modification, amendment or waiver of any provision of this Amendment
shall be effective unless such modification, amendment or waiver is in writing
and signed by each of the parties hereto.
SECTION 22. FURTHER ASSURANCES. Each of the parties shall take
such further action as may be reasonably requested by the other to carry out the
purposes and intent of this Amendment and shall refrain from taking any action
which would frustrate the purposes and intent of this Amendment.
-42-
SECTION 23. SEVERABILITY. If any provision of this Amendment
is held to be invalid or unenforceable in whole or in part, such invalidity or
unenforceability shall attach only to such provision or part thereof and the
remaining part of such provision hereof shall continue in full force and effect.
SECTION 24. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS AMENDMENT SHALL IN ALL RESPECTS BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION.
VALIDITY AND PERFORMANCE. THIS AMENDMENT IS BEING DELIVERED IN THE STATE OF NEW
YORK.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY AGREES, ACCEPTS
AND SUBMITS ITSELF TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN THE CITY AND COUNTY OF NEW YORK AND OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, IN CONNECTION WITH ANY LEGAL ACTION, SUIT OR
PROCEEDING WITH RESPECT TO ANY MATTER RELATING TO OR ARISING OUT OF OR IN
CONNECTION WITH THIS AMENDMENT.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS AND
AGREES THAT THE SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS. NOTICES AND
DOCUMENTS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR
PROCEEDING MAY BE MADE BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, AT THE ADDRESS SET FORTH PURSUANT TO SECTION 18.6 OF THE
LEASE. EACH PARTY HERETO HEREBY AGREES THAT SERVICE UPON IT, OR ANY OF ITS
AGENTS, IN EACH CASE IN ACCORDANCE WITH THIS SECTION 24, SHALL CONSTITUTE VALID
AND EFFECTIVE PERSONAL SERVICE UPON SUCH PARTY, AND EACH PARTY HERETO HEREBY
AGREES, THAT THE FAILURE OF ANY OF ITS AGENTS TO GIVE ANY NOTICE OF SUCH SERVICE
TO ANY SUCH PARTY SHALL NOT IMPAIR OR AFFECT IN ANY WAY THE VALIDITY OF SUCH
SERVICE ON SUCH PARTY OR ANY JUDGMENT RENDERED IN ANY ACTION OR PROCEEDING BASED
THEREON.
(d) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, BY WAY OF MOTION,
AS A DEFENSE OR OTHERWISE, IN ANY LEGAL ACTION OR PROCEEDING BROUGHT HEREUNDER
IN ANY OF THE ABOVE-NAMED COURTS, THAT SUCH ACTION OR PROCEEDING IS BROUGHT IN
AN INCONVENIENT FORUM, THAT VENUE FOR THE ACTION OR PROCEEDING IS IMPROPER OR
THAT THIS AMENDMENT OR ANY OTHER OPERATIVE AGREEMENT MAY NOT BE ENFORCED IN OR
BY SUCH COURTS.
(e) EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION IN ANY COURT IN ANY JURISDICTION
BASED UPON OR ARISING OUT OF OR RELATING TO THIS AMENDMENT.
-43-
IN WITNESS WHEREOF, Xxxxxx and Xxxxxx have each caused this
Amendment to be duly executed as of the day and year first above written.
ATLAS AIR, INC., Lessee
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION (not in its individual
capacity except as expressly provided herein,
but solely as Owner Trustee), Lessor
By:
--------------------------
Name:
Title:
[THIS IS A DUPLICATE EXECUTED COUNTERPART, AND IS NOT
THE ORIGINAL COUNTERPART FOR CHATTEL PAPER PURPOSES.]
[N491MC]
IN WITNESS WHEREOF, Xxxxxx and Xxxxxx have each caused this Amendment
to be duly executed as of the day and year first above written.
ATLAS AIR, INC., Lessee
By:
--------------------------
Name:
Title:
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION (not in its
individual capacity except as expressly provided
herein, but solely as Owner Trustee), Lessor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
[THIS IS A DUPLICATE EXECUTED COUNTERPART, AND IS NOT
THE ORIGINAL COUNTERPART FOR CHATTEL PAPER PURPOSES.]
[N491MC]
SCHEDULE TO EXHIBIT 10.4.2
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.
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
PROGRAM YEAR REGISTRATION NUMBER RESTRUCTURE AGREEMENT TYPE LESSOR LESSEE
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
1998 N494MC Owned Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
Agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
1998 N408MC Leased Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
Agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
1998 N491MC Leased Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
1998 N492MC Leased Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
Agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
1998 N493MC Leased Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
Agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
1999 N495MC Owned Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
Agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
1999 N496MC Leased Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
Agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
1999 N497MC Leased Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
Agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
1999 N498MC Leased Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
Agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
1999 N499MC Leased Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
Agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
2000 N409MC Leased Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
Agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
2000 N412MC Leased Aircraft Restructure Xxxxx Fargo Bank Northwest, Atlas Air, Inc.
Agreement National Association
------------------ ------------------------ ---------------------------------- ------------------------------- ---------------------
