EXHIBIT 10.1.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "AGREEMENT") dated as of
August 17, 2004, between BANKERS COMMERCIAL CORPORATION, a California
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, except
as to Retained Assets (as defined below), in, under and respect to, among other
things, (i) the Participation Agreement dated as of December 29, 2000 among
Atlas Air, Inc., as Lessee, Bankers Commercial Corporation (as successor to Banc
of America Leasing & Capital, LLC), 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 29257 and U.S. registration mark N496MC, 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 (b) the assumption by Assignee of the obligations of Assignor accruing
thereunder; 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) the right to receive any indemnity payment pursuant to the
Participation Agreement with respect to events occurring prior to such date and
(ii) Assignor's rights to the option payments previously paid by Assignee to
Assignor under the Purchase Agreement dated as of January 30, 2004 between
Assignor and Assignee (collectively, the "RETAINED ASSETS").
3. 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 or with respect to
events occurring prior to the date hereof 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. 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, (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 3,
shall be bound by all of the terms of each Operative Agreement to which Assignor
is a party or by which it is bound, (including the agreements and obligations of
the Assignor set forth therein) as if therein named the Owner Participant.
4. RELEASE OF ASSIGNOR. Except for liabilities not expressly assumed
by Assignee under Section 3 hereof, upon the effectiveness of this Agreement,
Assignor shall be relieved of all of its liabilities under the Participation
Agreement and the Trust Agreement and any other Operative Agreement to which it
is a party; PROVIDED, HOWEVER, that Assignor shall in no event be released from
any such liability arising or relating to any event occurring prior to the date
hereof, 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 attributable to Assignor.
5. 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.
6. [Reserved.]
7. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor represents
and warrants that:
(a) it is a corporation duly organized and validly existing in good
standing under the Laws of the State of California 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;
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(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 effectiveness of
this Agreement or prior to the consummation of the transactions
contemplated hereby;
(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 By-laws 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;
(h) the transfer to Assignee of all of the Assignor's right, title
and interest as Owner Participant 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 documents assigned by Assignor to Assignee
pursuant to Section 2 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:
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(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 Owner Participant
Agreements. 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, has a 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 By-laws) to authorize the execution and delivery of this
Agreement and the performance of its obligations hereunder;
(c) the execution and delivery by Assignee of this Agreement, the
performance by Assignee of its obligation 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 (a)
violate any provision of its Certificate of Incorporation or By-laws of
Assignee, (b) 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 (c)
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 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 (a) any trustee or other
holder of any Debt of Assignee and (b) any Government Entity other than
the filing of (i) this Agreement, (ii) Amendment No. 2 to Trust Agreement
dated as of August 17, 2004 between the Owner Trustee and the Assignee
(the "TRUST AMENDMENT"), and (iii) 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
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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;
(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 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) Assignee satisfies the "Transferee" requirements set forth in
Section 10.1.1(a)(v) of the Participation Agreement by virtue of the Trust
Amendment;
(k) the Trust Estate is free of Lessor Liens attributable to it; and
(l) 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.
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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.
BANKERS COMMERCIAL CORPORATION
By: /s/ Melisa Wilson
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Name: Melisa Wilson
Title: Vice President
ATLAS AIR, INC.
By: /s/ William C. Bradley
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Name: William C. Bradley
Title: Vice President & Treasurer
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