Exhibit 99.7
SECOND AMENDMENT TO FORBEARANCE AGREEMENT
RELATING TO 1998 EETC
SECOND AMENDMENT dated as of September 12, 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 or the Term Sheet (each as defined below), as applicable.
WHEREAS, the Company and the Class A Certificateholders entered into a
Forbearance Agreement dated as of July 2, 2003, as amended by an Amendment to
Forbearance Agreement dated as of August 29, 2003 (as amended, 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, on the date hereof Atlas and the Class A Certificateholders are
executing a 1998 EETC Restructuring and Forbearance Term Sheet Agreement (the
"TERM SHEET") with respect to the 1998 EETC Transaction; and
WHEREAS, in connection therewith, the Company and Class A
Certificateholders now desire to further 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) Clause (i) of Section 2(b) of the Forbearance Agreement is deleted in
its entirety and the following clause (i) is substituted therefor:
(i) 12:00 p.m. (New York time) on December 15, 2003;
(b) Clauses (vi) and (vii) of Section 2(b) of the Forbearance Agreement are
deleted in their entirety and the following clauses (vi) and (vii) are
substituted therefor:
(vi) the failure of Atlas to perform its agreements contained in the
Term Sheet in accordance with their terms, TIME BEING OF THE ESSENCE AS TO
EACH SUCH AGREEMENT;
(vii) Without limiting the generality of the provisions of clause (ii)
above, the commencement by or against Atlas or any Affiliate of Atlas of
any bankruptcy, reorganization, or insolvency proceedings other than a
pre-negotiated Chapter 11 case that is consistent with the provisions of
paragraph 10 of the Term Sheet; or
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
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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:
(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) $160,666.66 representing amounts due or accrued through September 10,
2003 to Xxxxxxx, and (ii) $3,931.28 representing amounts due or accrued through
September 12, 2003 to Xxxxxxxx (which amount includes without limitation the
amounts owed by Xxxxxxxx to Xxxxx
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Helliesen & Xxxxxxx in connection with the documents and matters referred to
herein), in each case directly to Xxxxxxx or Xxxxxxxx, as applicable, on or
before September 12, 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
(i) received from the Class A Certificateholders that are signatories hereto
notices acknowledging that they hold A 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 (each an
"OWNERSHIP ACKNOWLEDGEMENT") in an aggregate amount 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.
SECTION 8. CERTIFICATION.
Each of the undersigned Class A Certificateholders who has delivered an
Ownership Acknowledgement hereby certifies that its holdings have not changed
since the date of such Ownership Acknowledgement.
[Signatures Follow on Succeeding Pages]
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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:
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[Signatures]
