Exhibit 99.4
AMENDMENT TO FORBEARANCE AGREEMENT RELATING TO 1998 EETC
AMENDMENT dated as of August 29, 2003 (this "AGREEMENT"), among Atlas Air,
Inc., a Delaware corporation ("ATLAS" or the "COMPANY"), and the financial
institutions named on the signature pages hereto which execute this Agreement
(the "CLASS A CERTIFICATEHOLDERS"). Capitalized terms used but not defined
herein shall have the definitions assigned to them in the Forbearance Agreement,
as defined below.
WHEREAS, the Company and the Class A Certificateholders entered into a
Forbearance Agreement dated as of July 2, 2003 (the "FORBEARANCE AGREEMENT")
with respect to the 1998 7.38% Atlas Air Pass Through Certificates, Series A
(the "A CERTIFICATES") issued pursuant to that certain Pass Through Trust
Agreement dated as of February 9, 1998, between the Company and Wilmington Trust
Company ("WTC") as Pass Through Trustee (the "CLASS A TRUSTEE") for the Atlas
Air Pass Through Trust 1998-1A; and
WHEREAS, the Company and Class A Certificateholders now desire to amend the
Forbearance Agreement as set forth herein,
NOW, THEREFORE, in consideration of the foregoing, the covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. ATLAS ACKNOWLEDGEMENTS
Atlas agrees and acknowledges that (a) the aggregate principal amount of
the outstanding principal under the Series A Equipment Notes as of the date
hereof is $272,593,320.99, and (b) (i) Atlas has no right of offset, defense,
counterclaim or right of recoupment with respect to its obligation to pay the
foregoing principal amount, interest accrued and accruing thereon, and other
amounts payable by Atlas under the Operative Agreements to the extent that they
relate to the Owned Aircraft and the liens thereon and obligations with respect
thereto, and (ii) all of the Leases are in full force and effect and Atlas has
no right of offset, defense, counterclaim or right of recoupment with respect to
its obligations under any of the Leases.
SECTION 2. AMENDMENT OF FORBEARANCE AGREEMENT.
The Forbearance Agreement is amended as follows:
(a) This condition having been satisfied, clause (v) of Section 2(b) of the
Forbearance Agreement is deleted in its entirety and "INTENTIONALLY DELETED" is
substituted therefor.
(b) The reference to "August 31, 2003" in clause (vi) of Section 2(b) of
the Forbearance Agreement is deleted in each place where it appears and
"September 12, 2003" is substituted therefor.
SECTION 3. GENERAL RELEASE.
IN CONSIDERATION OF, AMONG OTHER THINGS, THE AMENDMENT SET FORTH HEREIN,
ATLAS, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES AND ITS
AND THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, "RELEASORS"), HEREBY FOREVER
WAIVES, RELEASES AND DISCHARGES TO THE FULLEST EXTENT PERMITTED BY LAW ANY AND
ALL DEFENSES AND CLAIMS (INCLUDING, WITHOUT LIMITATION, CROSSCLAIMS,
COUNTERCLAIMS, RIGHTS OF SET-OFF AND RECOUPMENT), CAUSES OF ACTION, DEMANDS,
SUITS, COSTS, EXPENSES AND DAMAGES (COLLECTIVELY, THE "CLAIMS"), THAT ANY
RELEASOR NOW HAS OR HEREAFTER MAY HAVE, OF WHATSOEVER NATURE AND KIND, WHETHER
KNOWN OR UNKNOWN, WHETHER NOW EXISTING OR HEREAFTER ARISING, WHETHER ARISING AT
LAW OR IN EQUITY, AGAINST ANY OR ALL OF THE CLASS A CERTIFICATEHOLDERS, THE
SUBORDINATION AGENT, THE MORTGAGEES AND THE PASS THROUGH TRUSTEES AND THEIR
RESPECTIVE AFFILIATES, SHAREHOLDERS, AND "CONTROLLING PERSONS" (WITHIN THE
MEANING OF THE FEDERAL SECURITIES LAWS), AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS AND EACH AND ALL OF THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
ATTORNEYS AND OTHER REPRESENTATIVES OF EACH OF THE FOREGOING (COLLECTIVELY, THE
"RELEASEES"), BASED IN WHOLE OR IN PART ON FACTS OR CIRCUMSTANCES, WHETHER OR
NOT NOW KNOWN, EXISTING ON OR BEFORE THE EXECUTION OF THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, THE FOREGOING RELEASE IS NOT INTENDED TO, AND
DOES NOT, RELEASE THE CLASS A CERTIFICATEHOLDERS FROM ANY OF THEIR OBLIGATIONS
OR AGREEMENTS SET FORTH IN OR ARISING UNDER THE FORBEARANCE AGREEMENT, AS
AMENDED HEREBY. ACCEPTANCE BY ATLAS OF ANY FINANCIAL ACCOMMODATION MADE BY CLASS
A CERTIFICATEHOLDERS AFTER THE DATE HEREOF (INCLUDING, WITHOUT LIMITATION, THE
ACCOMMODATION CONTAINED IN THE FORBEARANCE AGREEMENT) SHALL CONSTITUTE A
RATIFICATION, ADOPTION AND CONFIRMATION BY RELEASORS OF THE FOREGOING GENERAL
RELEASE OF ALL CLAIMS AGAINST ANY RELEASEE WHICH ARE BASED IN WHOLE OR IN PART
ON FACTS OR CIRCUMSTANCES, WHETHER OR NOT NOW KNOWN, EXISTING ON OR PRIOR TO THE
DATE OF RECEIPT OF ANY SUCH FINANCIAL ACCOMMODATION. IN ENTERING INTO THIS
AGREEMENT, ATLAS HAS CONSULTED WITH AND BEEN REPRESENTED BY COUNSEL AND
EXPRESSLY DISCLAIMS ANY RELIANCE ON ANY REPRESENTATIONS, ACTS OR OMISSIONS BY
ANY OF THE RELEASEES AND HEREBY AGREES AND ACKNOWLEDGES THAT THE VALIDITY AND
EFFECTIVENESS OF THE RELEASE SET FORTH ABOVE DO NOT DEPEND IN ANY WAY ON ANY
SUCH REPRESENTATIONS, ACTS AND/OR OMISSIONS OR THE ACCURACY, COMPLETENESS OR
VALIDITY THEREOF. THE PROVISIONS OF THIS GENERAL RELEASE SHALL SURVIVE THE
PAYMENT IN FULL OF ALL AMOUNTS OWING UNDER THE LEASES, THE SERIES A EQUIPMENT
NOTES AND THE CLASS A CERTIFICATES.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
To induce the Class A Certificateholders to execute and deliver this
Agreement, Atlas represents and warrants that:
2
(a) Atlas' execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate action, and do not and will not (i)
contravene the terms of Atlas' articles of incorporation, bylaws or other
organizational documents, (ii) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document evidencing any
contractual obligation to which Atlas is a party or any order, injunction, writ
or decree of any Governmental Authority to which Atlas or its property is
subject or (iii) violate any provision of any law, statute, rule or regulation.
This Agreement constitutes the legal, valid and binding obligations of Atlas,
enforceable against Atlas in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditors' rights generally or by equitable principles
relating to enforceability.
(b) No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, any party to this Agreement.
(c) On and as of the date hereof, other than the Specified Defaults, no
Indenture Event of Default has occurred and is continuing.
SECTION 5. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
SECTION 6. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. A facsimile of an
executed counterpart of this Agreement shall have the same effect as the
original executed counterpart.
SECTION 7. EFFECTIVENESS.
(a) The effectiveness of this Agreement is expressly conditioned upon Atlas
paying (i) $263,668.24 representing amounts due or accrued through July 31, 2003
to Xxxxxxx, and (ii) $320,954.52 representing amounts due or accrued through
September 2, 2003 to Xxxxxxxx (which amount includes without limitation the
amounts owed by Xxxxxxxx to Xxxxx Xxxxxxxxx & Xxxxxxx in connection with the
documents and matters referred to herein), in each case directly to Xxxxxxx or
Xxxxxxxx, as applicable, on or before August 29, 2003.
(b) Upon compliance with the condition set forth in the above Paragraph
7(a), this Agreement shall become effective on the date that Xxxxxxx shall have
received (i) from the Class A Certificateholders notices acknowledging that they
hold Certificates evidencing their respective beneficial ownership of Fractional
Undivided Interests (as such term is defined in the Atlas Air Pass Through Trust
1998-1A) in the Class A Trust, which amounts shall be of not less than
$150,127,001 of the original face amount of such Certificates, and shall have
advised Atlas or its counsel in writing of such receipt, and (ii) received from
Atlas and each of the Class A Certificateholders, a counterpart hereof signed by
such party or a facsimile or other written confirmation (in form satisfactory to
Xxxxxxx) that such party has signed a counterpart hereof. Except to the extent
amended hereby, the Forbearance Agreement shall continue in effect in accordance
with its terms.
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ATLAS AIR, INC.
By: __________________________
Name:
Title:
CLASS A CERTIFICATEHOLDERS:
--------------------------
[Signatures]
