Contract

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; -2- (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: -3- (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 -4- 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. -5- 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. ******* -6- 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 --------------------------------- Name: Melisa Wilson Title: Vice President ATLAS AIR, INC. By: /s/ William C. Bradley --------------------------------- Name: William C. Bradley Title: Vice President & Treasurer -7-