EXHIBIT 10.1.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "AGREEMENT") dated as of
August 16, 2004, between FINOVA CAPITAL CORPORATION, a Delaware corporation
("ASSIGNOR") and Atlas Air, Inc., a Delaware corporation ("ASSIGNEE").
WITNESSETH:
WHEREAS, the parties hereto desire to effect (a) the transfer by
Assignor to Assignee of all of the right, title and interest of Assignor, in,
under and with respect to, among other things, (i) the Participation Agreement
dated as of October 19, 1998 among Atlas Air, Inc., as Lessee, FINOVA Capital
Corporation, as Owner Participant, Wells Fargo Bank Northwest, National
Association (as successor to First Security Bank, National Association), not in
its individual capacity, except as expressly provided therein, but solely as
Owner Trustee, and Wilmington Trust Company, not in its individual capacity,
except as expressly provided therein, but solely as Mortgagee, Subordination
Agent and Pass Through Trustee, as amended, modified or supplemented and in
effect from time to time (the "PARTICIPATION AGREEMENT") relating to one Boeing
model 747-47UF aircraft bearing manufacturer's serial number 29254 and U.S..
registration mark N493MC, including, without limitation, any indemnity payments
payable by the Lessee directly or indirectly thereunder, (ii) the Trust
Agreement identified in the Participation Agreement, (iii) the Trust Estate (as
defined in the Trust Agreement), (iv) the proceeds therefrom; and
WHEREAS, such documents permit such transfer upon satisfaction of
certain conditions heretofore or concurrently herewith being complied with;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
shall have the respective meanings ascribed thereto in the Participation
Agreement.
2. ASSIGNMENT. Assignor has sold, conveyed, assigned, transferred
and set over, and does hereby sell, convey, assign, transfer and set over, unto
Assignee, as of the date hereof, all of its present and future right, title and
interest in, under and with respect to the Participation Agreement, the Trust
Agreement, the Trust Estate and all of the other Operative Agreements to which
Assignor is a party, and any proceeds therefrom, together with all other
documents and instruments evidencing any of such right, title and interest,
except (i) such rights of Assignor as have arisen or accrued to Assignor prior
to the date hereof (including specifically, but without limitation, the right to
receive any amounts due or accrued to Assignor under the Operative Agreements as
of a time prior to such date and the right to receive any indemnity payment
pursuant to the Participation Agreement with respect to events occurring or
liabilities accruing on or prior to such date) (the "RETAINED ASSETS") and (ii)
for the Tax Indemnity Agreement.
3. TERMINATION OF TAX INDEMNITY AGREEMENT AND RELEASE OF TAX CLAIMS.
The Assignor and Assignee hereby agree that the Tax Indemnity Agreement shall be
and is
terminated as of the date of this Agreement and Assignee shall have no further
liability to Assignor thereunder. In addition, Assignor hereby expressly
releases Assignee from, and now and forever waives any claim for, any liability
in respect of taxes and any loss of any tax benefit (including, but not limited
to, any claim pursuant to the Tax Indemnity Agreement) (i) existing or arising
on, or prior to, the date hereof or (ii) based on any acts, omissions, or events
occurring on, or prior to, the date hereof, except for any liability in respect
of sales or transfer taxes arising from or in connection with the assignment
described in paragraph 2 hereof. In addition, Assignee hereby expressly releases
Assignor from, and now and forever waives any claim for, any liability in
respect of taxes and any realization of any tax benefit (including, but not
limited to, any claim pursuant to the Tax Indemnity Agreement) (i) existing or
arising on, or prior to, the date hereof or (ii) based on any acts, omissions,
or events occurring on, or prior to, the date hereof.
4. ASSUMPTION. Assignee hereby accepts the assignment set forth in
paragraph 2 hereof and assumes and undertakes all of the duties and obligations
of Assignor accruing from and after the date hereof (excluding any duties and
obligations of Assignor required to be performed by it on or prior to the date
hereof under the Operative Agreements to which the Owner Participant is a party
and any of the other Operative Agreements by which Assignor is bound or any
other contract, agreement, document or other instrument relating to the Trust
Estate to which the Owner Participant is a party or by which it is bound and any
liabilities of the Assignor arising from such duties and obligations) pursuant
to the Trust Agreement, the Participation Agreement and each other Operative
Agreement to which Assignor is a party or by which Assignor is bound, including,
without limitation, any obligations it may have under any Operative Agreement
with regard to the Lessee, the Mortgagee or the Owner Trustee, excluding,
however, the Tax Indemnity Agreement. Assignee hereby confirms that from and
after the date hereof it (i) shall be deemed a party to the Participation
Agreement, the Trust Agreement and each other Operative Agreement to which the
Owner Participant is a party other than the Tax Indemnity Agreement, (ii) shall
be deemed the party named as the "Owner Participant" in the Trust Agreement, the
Participation Agreement, the Lease and the Trust Indenture and (iii) except as
expressly provided in this paragraph 4, shall be bound by all of the terms of
each Operative Agreement to which Assignor is a party or by which it is bound,
other than the Tax Indemnity Agreement (including the agreements and obligations
of the Assignor set forth therein) as if therein named the Owner Participant.
5. RELEASE OF ASSIGNOR. Except for liabilities not expressly assumed
by Assignee under Section 4 hereof, upon the date hereof, Assignor is released
from all of its duties, obligations and liabilities under the Participation
Agreement and the Trust Agreement and each other Operative Agreement to which
Assignor is a party or by which Assignor is bound; PROVIDED, HOWEVER, that
Assignor shall in no event be released from any such liability arising on
account of any breach on or prior to the date hereof by Assignor of any of its
representations, warranties, covenants or obligations set forth in the
Participation Agreement or the Trust Agreement, or for any misconduct engaged in
by it prior to the date hereof, or from any obligation that relates to any
indemnity claimed by Assignor or any Lessor Lien arising from or attributable to
Assignor.
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6. PAYMENTS. Assignor hereby covenants and agrees to pay over to
Assignee, if and when received following the date hereof, any amounts (including
any sums payable as interest in respect thereof) paid to or for the benefit of
Assignor that, under Section 2 hereof, belong to Assignee, and Assignee hereby
covenants and agrees to pay over to Assignor, if and when received following the
date hereof, any amounts (including any sums payable as interest in respect
thereof) paid to or for the benefit of Assignee that, under Section 2 hereof,
belong to Assignor.
7. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor represents
and warrants that:
(a) it is a Delaware corporation, duly organized and validly
existing in good standing under the Laws of the State of Delaware and has
the requisite power, authority and legal right to enter into and carry out
the transactions contemplated hereby;
(b) this Agreement has been duly authorized, executed and delivered
by it and constitutes the legal, valid and binding obligation of Assignor,
enforceable against it in accordance with its terms;
(c) no action or proceeding is pending, has been instituted or, to
the knowledge of Assignor, is threatened, before any court or governmental
agency, nor has any order, judgment or decree been issued or, to the
knowledge of Assignor, is threatened, by any court or governmental agency
which would materially adversely affect the ability of Assignor to
complete and consummate its obligations contemplated hereby;
(d) the Trust Estate is free of Lessor Liens attributable to it;
(e) it has fully performed all of its obligations under the
Participation Agreement and under each other Operative Agreement to which
it is a party or by which it is bound, which obligations by their terms
are required to be satisfied or performed prior to the date hereof;
(f) neither the execution, delivery and performance by it of this
Agreement, nor compliance by it with any of the provisions thereof
requires or will require any approval of its stockholders, or approval or
consent of any trustees or holders of any indebtedness or obligations of
it or contravenes or will contravene any Law or any order of any court or
governmental authority or agency applicable to or binding on it or
contravenes or will contravene the provisions of, or constitute a default
under, its Certificate of Incorporation or Bylaws or any indenture,
mortgage, contract or any agreement or instrument to which it is a party
or by which it or any of its property may be bound or affected;
(g) no authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body (other
than as required by the Act, or the regulations promulgated thereunder) is
required for the due execution, delivery or performance by it of this
Agreement;
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(h) the transfer to Assignee of all of the Assignor's right, title
and interest in each Operative Agreement to which it is a party or by
which it is bound, will not violate any provision of the Act, the
Securities Act (and no registration pursuant to such Securities Act or the
rules and regulations thereunder shall be required in connection with such
transfer), or any other applicable law. Notwithstanding the foregoing, no
representation is being made in this Section 7 with respect to the absence
of violations of ERISA;
(i) no Person action on behalf of Assignor is or will be entitled to
any broker's fee, commission or finder's fee in connection with the
transactions contemplated by this Agreement; and
(j) other than the Purchase Agreement, dated as of July 27, 2004,
between Assignor and Assignee and the Retained Assets, there are no other
contracts, agreements, documents or instruments related to the Trust
Estate by which Assignor is bound.
8. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE. Assignee represents
and warrants that:
(a) Assignee is a corporation duly incorporated, validly existing
and in good standing under the Laws of the State of Delaware and has the
corporate power and authority to conduct the business in which it is
currently engaged and to own or hold under lease its properties and to
enter into, and perform its obligations under the agreements assigned to
and assumed by Assignee under this Agreement. Assignee's parent, Atlas
Worldwide Holdings, Inc., a Delaware corporation ("GUARANTOR"), will
provide a guaranty ("GUARANTY") of the obligations of the Assignee in
accordance with Section 10.1.1(a)(vi) of the Participation Agreement and
has tangible Net Worth of at least $75,000,000;
(b) Assignee has taken, or caused to be taken, all necessary
corporate action (including, without limitation, the obtaining of any
consent or approval of stockholders required by its Certificate of
Incorporation or Bylaws) to authorize the execution and delivery of this
Agreement and the performance of its obligations hereunder and the
agreements assigned to and assumed by Assignee under this Agreement;
(c) the execution and delivery by Assignee of this Agreement, the
performance by Assignee of its obligations hereunder, and under the
agreements assigned to and assumed by Assignee under this Agreement, and
the consummation by Assignee on the date of this Agreement of the
transactions contemplated hereby and thereby, do not and will not (i)
violate any provision of its Certificate of Incorporation or Bylaws, (ii)
violate any Law applicable to or binding on the Assignee (it being
understood that this representation is not made with respect to any Law to
the extent that such Law relates to ERISA or any Plan) or (iii) violate or
constitute any default under (other than any violation or default that
would not result in a Material Adverse Change to Assignee), or result in
the creation of any
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Lien (other than as provided for or otherwise permitted in the Operative
Agreements) upon the Trust Estate, under any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, lease, loan or other
material agreement, instrument or document to which Assignee is a party or
by which Assignee or any of its properties is bound or may be affected in
any material respect;
(d) the execution and delivery by Assignee of this Agreement, the
performance by Assignee of its obligations hereunder, and under the
agreements assigned to and assumed by Assignee under this Agreement, and
the consummation by Assignee on the date of this Agreement of the
transactions contemplated hereby and thereby do not and will not require
the consent or approval of, or the giving of notice to, or the
registration with, or the recording or filing of any documents with, or
the taking of any other action in respect of (i) any trustee or other
holder of any Debt of Assignee and (ii) any Government Entity other than
the filing of (A) this Agreement, (B) Amendment No. 1 to Trust Agreement
dated as of August 16, 2004 between the Owner Trustee and the Assignee
(the "TRUST AMENDMENT"), and (C) an affidavit of citizenship by each of
the Assignee and the Owner Trustee pursuant to Section 47.7(c)(2)(ii) of
the Federal Aviation Regulations;
(e) this Agreement has been duly authorized, executed and delivered
by Assignee, and this Agreement and the agreements assigned to and assumed
by Assignee under this Agreement (assuming the due authorization,
execution and delivery by each party to such documents other than
Assignee) constitute the legal, valid and binding obligations of Assignee
and are enforceable against Assignee in accordance with the respective
terms thereof, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar
Laws affecting the rights of creditors generally and general principles of
equity, whether considered in a proceeding at law or in equity;
(f) no part of the funds to be used by Assignee or Guarantor to
acquire or hold its interests in the Trust Estate to be acquired by it
under this Agreement directly or indirectly constitutes assets of a Plan;
(g) there are no pending or, to the Actual Knowledge of Assignee,
threatened actions or proceedings against Assignee or Guarantor before any
court, governmental body, arbitration board, administrative agency or
tribunal which, if determined adversely to Assignee or Guarantor, would
materially adversely affect the ability of Assignee to perform its
obligations under this Agreement or any of the agreements assigned to and
assumed by Assignee under this Agreement or the Guarantor to perform its
obligations under the Guaranty, except as has been and disclosed by
Assignee in its public filings with the Securities and Exchange Commission
and in the disclosure statement, as amended, filed in connection with the
plan of reorganization with the United States Bankruptcy Court for the
Southern District of Florida;
(h) neither Assignee nor any person Assignee has authorized to act
on its behalf has directly or indirectly offered any beneficial interest
in or Security relating
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to the ownership of the Aircraft or any interest in the Trust Estate, or
any of the Equipment Notes or any other interest in or Security under the
Trust Indenture for sale to, or solicited any offer to acquire any of the
same from, any Person in violation of the Securities Act or applicable
state securities Laws;
(i) no Person acting on behalf of Assignee or Guarantor is or will
be entitled to any broker's fee, commission or finder's fee in connection
with the transactions contemplated by this Agreement;
(j) other than as provided in Section 8.4.3 of Amendment No. 1 to
Lease Agreement (the "LEASE AMENDMENT") dated as of July 27, 2004, by and
between Assignee and Lessor, Assignee's beneficial interest in the Trust
Estate is being acquired for it by its own account, for investment and not
with a view to any resale or distribution thereof, except that, subject to
the restrictions on transfer set forth in Section 10 of the Participation
Agreement and the transfer requirements contained in Section 8.4.3 of the
Lease Amendment, the disposition by Assignee of its beneficial interest in
the Trust Estate shall at all times be within its control;
(k) Assignee satisfies the "Transferee" requirements set forth in
Section 10.1.1(a)(vi) of the Participation Agreement by virtue of the
Trust Amendment;
(l) the Trust Estate is free of Lessor Liens attributable to it; and
(m) after giving effect to this assignment, there will be no more
than one Owner Participant with respect to the Transaction;
9. GOVERNING LAW. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONTRUCTION, VALIDITY AND PERFORMANCE.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute a single instrument. It
shall not be necessary that any counterpart be signed by both parties so long as
each party shall sign at least one counterpart.
11. BENEFICIARIES. Each of the Owner Trustee, the Lessee, the Note
Holders and the Mortgagee, together with their respective successors and
permitted assigns, is and shall be deemed a third party beneficiary of this
Agreement entitled to enforce this Agreement directly and in its own name and
enforce any rights or claims of the parties hereto.
12. FURTHER ASSURANCES. Each party agrees that from time to time
after the date hereof, it shall execute and deliver or cause to be executed and
delivered such instruments, documents and papers, and take all such further
action as may be reasonably required in order to consummate fully the purposes
of this Agreement and to implement the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption Agreement as of the day and year first above written.
FINOVA CAPITAL CORPORATION
By: /s/ Maryann V. Richandson
---------------------------------
Name: Maryann V. Richandson
Title: Vice President
ATLAS AIR, INC.
By: /s/ William C. Bradley
---------------------------------
Name: William C. Bradley
Title: Vice President & Treasurer
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