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EXHIBIT 10.109
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NOTE PURCHASE AGREEMENT
Dated as of February 9, 1998
Among
ATLAS AIR, INC.,
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under each of the
Pass Through Trust Agreements, as
Subordination Agent and as Paying Agent,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
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INDEX TO NOTE PURCHASE AGREEMENT
Page
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SECTION 1. Financing of Aircraft............................................ 3
SECTION 2. Conditions Precedent............................................. 8
SECTION 3. Representations and Warranties................................... 8
SECTION 4. Covenants....................................................... 13
SECTION 5. Notices......................................................... 14
SECTION 6. Expenses........................................................ 14
SECTION 7. Further Assurances.............................................. 15
SECTION 8. Miscellaneous................................................... 15
SECTION 9. Governing Law................................................... 16
Schedules
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Schedule I Aircraft and Scheduled Delivery Months
Schedule II Pass Through Trust Agreements
Schedule III Deposit Agreements
Schedule IV Escrow and Paying Agent Agreements
Schedule V Mandatory Document Terms
Schedule VI Mandatory Economic Terms
Schedule VII Aggregate Amortization Schedule
Annex
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Annex A Definitions
Exhibits
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Exhibit A-1 Form of Leased Aircraft Participation Agreement
Exhibit A-2 Form of Lease
Exhibit A-3 Form of Leased Aircraft Indenture
Exhibit A-4 Form of Aircraft Purchase Agreement Assignment
Exhibit A-5 Form of Leased Aircraft Trust Agreement
Exhibit B Form of Delivery Notice
Exhibit C-1 Form of Owned Aircraft Participation Agreement
Exhibit C-2 Form of Owned Aircraft Indenture
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NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of February 9, 1998,
among (i) ATLAS AIR, INC., a Delaware corporation (the "Company"), (ii)
WILMINGTON TRUST COMPANY ("WTC"), a Delaware banking corporation, not in its
individual capacity except as otherwise expressly provided herein, but solely
as trustee (in such capacity together with its successors in such capacity, the
"Pass Through Trustee") under each of the three separate Pass Through Trust
Agreements (as defined below), (iii) WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as subordination agent and trustee (in such capacity
together with its successors in such capacity, the "Subordination Agent") under
the Intercreditor Agreement (as defined below), (iv) FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, as Escrow Agent (in such
capacity together with its successors in such capacity, the "Escrow Agent")
under each of the Escrow Agreements (as defined below), and (v) WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as Paying Agent (in such
capacity together with its successors in such capacity, the "Paying Agent")
under each of the Escrow Agreements.
W I T N E S S E T H:
WHEREAS, capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in Annex A hereto;
WHEREAS, the Company has obtained commitments from the
Airframe Manufacturer pursuant to the Purchase Agreement for the delivery of
the 5 aircraft listed in Schedule I hereto (together with any aircraft
substituted therefor in accordance with the Purchase Agreement and this
Agreement prior to the delivery thereof, the "Aircraft");
WHEREAS, pursuant to the Pass Through Trust Agreements set
forth in Schedule II hereto, and concurrently with the execution and delivery
of this Agreement, separate grantor trusts (collectively, the "Pass Through
Trusts" and, individually, a "Pass Through Trust") have been created to
facilitate certain of the transactions contemplated hereby, including, without
limitation, the issuance and sale of pass through certificates pursuant thereto
(collectively, the "Certificates") to provide for all or a portion of the
financing of the Aircraft;
WHEREAS, the Company has entered into the Placement Agreement
dated as of January 27, 1998 (the "Placement Agreement")
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with the several placement agents (the "Placement Agents") named therein, which
provides that the Company will cause each Pass Through Trustee to issue and
sell the Certificates to the Placement Agents;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) the Escrow Agents and the Depositary entered into the Deposit
Agreements set forth in Schedule III hereto (the "Deposit Agreements") whereby
the applicable Escrow Agent agreed to direct the Placement Agents to make
certain deposits referred to therein on the Issuance Date (the "Initial
Deposits") and to permit the applicable Pass Through Trustee to make additional
deposits from time to time thereafter (the Initial Deposits together with such
additional deposits are collectively referred to as the "Deposits"), (ii) the
Company and the Depositary entered into the Indemnity Agreement, dated as of
the date hereof (the "Indemnity Agreement") and (iii) the Pass Through
Trustees, the Placement Agents, the Paying Agents and the Escrow Agents entered
into the Escrow and Paying Agent Agreements set forth in Schedule IV hereto
(the "Escrow Agreements") whereby, among other things, (a) the Placement Agents
agreed to deliver an amount equal to the amount of the Initial Deposits to the
Depositary on behalf of the applicable Escrow Agent and (b) the applicable
Escrow Agent, upon the Depositary receiving such amount, has agreed to deliver
escrow receipts to be affixed to each Certificate;
WHEREAS, prior to the delivery of each Aircraft, the Company
will determine whether to enter into a leveraged lease transaction as lessee
with respect to such Aircraft (a "Leased Aircraft") or to purchase as owner
such Aircraft (an "Owned Aircraft") and will give to the Pass Through Trustee a
Delivery Notice (as defined below) specifying its election;
WHEREAS, upon receipt of a Delivery Notice with respect to an
Aircraft, subject to the terms and conditions of this Agreement, the applicable
Pass Through Trustees will enter into the applicable Financing Agreements
relating to such Aircraft;
WHEREAS, upon the delivery of each Aircraft, each Pass
Through Trustee will fund its purchase of Equipment Notes with the proceeds of
one or more Deposits withdrawn by the applicable Escrow Agent under the related
Deposit Agreement bearing the same interest rate as the Certificates issued by
such Pass Through Trust; and
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WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) ABN AMRO Bank N.V., acting through its Chicago Branch, a bank
organized under the laws of the Netherlands, entered into a revolving credit
agreement for the benefit of the Certificateholders of the Class A Pass Through
Trust and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services, Inc. entered into two revolving
credit agreements for the benefit of the Certificateholders of the Class B Pass
Through Trust and the Class C Pass Through Trust, in each case with the
Subordination Agent, as agent for the Pass Through Trustee on behalf of each
such Pass Through Trust (ABN AMRO Bank N.V., Chicago Branch, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services, Inc. are collectively referred to herein as the "Liquidity
Providers", and the revolving credit agreements as the "Liquidity Facilities")
and (ii) the Pass Through Trustee, the Liquidity Providers and the
Subordination Agent entered into the Intercreditor Agreement, dated as of the
date hereof (the "Intercreditor Agreement");
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Financing of Aircraft. (a) The Company confirms
that it has entered into the Purchase Agreement with the Airframe Manufacturer
pursuant to which the Company has agreed to purchase, and the Airframe
Manufacturer has agreed to deliver, the Aircraft, all on and subject to terms
and conditions specified in the Purchase Agreement. The currently scheduled
delivery dates for the Aircraft are set forth in Schedule 1. The Company agrees
to finance the Aircraft in the manner provided herein, all on and subject to
the terms and conditions hereof and of the relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company agrees to
give the parties hereto, the Depositary and each of the Rating Agencies not
less than two Business Days' prior notice (a "Delivery Notice") of the
scheduled delivery date (the "Scheduled Delivery Date") (or, in the case of a
substitute Delivery Notice under Section 1(d) or (e) hereof, one Business Day's
prior notice) in respect of each Aircraft under the Purchase Agreement, which
notice shall:
(i) specify whether the Company has elected to treat such
Aircraft as a Leased Aircraft or an Owned Aircraft;
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(ii) specify the Scheduled Delivery Date of such Aircraft
(which shall be a Business Day before the Cut-off Date and, except as
provided in Section 1(e) hereof, the date (the "Funding Date") on
which the financing therefor in the manner provided herein shall be
consummated);
(iii) instruct the Pass Through Trustee to instruct the
relevant Escrow Agent to provide a Notice of Purchase Withdrawal to
the Depositary with respect to the Equipment Notes to be issued in
connection with the financing of such Aircraft;
(iv) instruct the Pass Through Trustee to enter into the
Participation Agreement included in the Financing Agreements with
respect to such Aircraft in such form and at such a time on or before
the Funding Date specified in such Delivery Notice and to perform its
obligations thereunder;
(v) specify the aggregate principal amount of each series
of Equipment Notes to be issued, and purchased by the Pass Through
Trustee, in connection with the financing of such Aircraft scheduled
to be delivered on such Funding Date (which shall in all respects
comply with the Mandatory Economic Terms); and
(vi) if such Aircraft is to be a Leased Aircraft, certify
that the related Owner Participant (A) is not an Affiliate of the
Company (unless prior Rating Agency Confirmation permitting the use of
an Affiliate has been obtained) and (B) based on the representations
of such Owner Participant, is either (1) a Qualified Owner Participant
or (2) any other person the obligations of which under the Owner
Participant Agreements (as defined in the applicable Participation
Agreement) are guaranteed by a Qualified Owner Participant.
(c) Upon receipt of a Delivery Notice, the Pass Through
Trustees shall, and shall cause the Subordination Agent to, enter into and
perform their obligations under the Participation Agreement specified in such
Delivery Notice, provided that such Participation Agreement and the other Lease
Financing Agreements or Owner Financing Agreements to be entered into pursuant
to such Participation Agreement shall be in the forms thereof annexed hereto in
all material respects with such changes therein as shall have been requested by
the related Owner Participant (in the case of Lease Financing Agreements) or by
the placement agents of the Series D Equipment Notes, if
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any (in the case of the Owner Financing Agreements), agreed to by the Company
and, if modified in any material respect (other than modifications affecting
only the Owner Participants and modifications that do not materially and
adversely affect the Certificateholders), as to which Rating Agency
Confirmation shall have been obtained from each Rating Agency by the Company
(to be delivered by the Company to the applicable Pass Through Trustee on or
before the relevant Delivery Date, it being understood that if Rating Agency
Confirmation shall have been received with respect to any Financing Agreements
and such Financing Agreements are utilized for subsequent Aircraft (or
Substitute Aircraft) without material modifications, no additional Rating
Agency Confirmation shall be required); provided, however, that the relevant
Financing Agreements as executed and delivered shall not vary the Mandatory
Economic Terms and shall contain the Mandatory Document Terms. Notwithstanding
the foregoing, if any Financing Agreement annexed hereto shall not have been
reviewed by either Rating Agency prior to the Issuance Date, then, prior to the
use thereof in connection with the financing of any Aircraft hereunder, the
Company shall obtain from each Rating Agency a confirmation that the use of
such Financing Documents would not result in (x) a reduction of the rating for
any Class of Certificates below the then current rating for such Class of
Certificates or (y) a withdrawal or suspension of the rating of any Class of
Certificates. With respect to each Aircraft, the Company shall cause Wilmington
Trust Company (or such other person that meets the eligibility requirements to
act as loan trustee under the Leased Aircraft Indenture or Owned Aircraft
Indenture) to execute as Loan Trustee the Financing Agreements relating to such
Aircraft to which such Loan Trustee is intended to be a party, and shall
concurrently therewith execute such Financing Agreements to which the Company
is intended to be a party and perform its respective obligations thereunder.
Upon the request of any Rating Agency, the Company shall deliver or cause to be
delivered to each Rating Agency a true and complete copy of each Financing
Agreement relating to the financing of each Aircraft together with a true and
complete set of the closing documentation (including legal opinions) delivered
to the related Loan Trustee, Subordination Agent and Pass Through Trustee under
the related Participation Agreement.
(d) If after giving any Delivery Notice, there shall be a
delay in the delivery of an Aircraft, or if on the Scheduled Delivery Date of
an Aircraft the financing thereof in the manner contemplated hereby shall not
be consummated for whatever reason, the Company shall give the parties hereto
prompt notice thereof. Concurrently with the giving of such notice of
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postponement or subsequently, the Company shall give the parties hereto a
substitute Delivery Notice specifying the date to which such delivery and
related financing shall have been re-scheduled (which shall be a Business Day
before the Cut-off Date on which the Escrow Agents shall be entitled to
withdraw one or more Deposits under each of the applicable Deposit Agreements
to enable each applicable Pass Through Trustee to fund its purchase of the
related Equipment Notes). Upon receipt of any such notice of postponement, each
applicable Pass Through Trustee shall comply with its obligations under Section
5.01 of each of the Trust Supplements and thereafter the financing of the
relevant Aircraft shall take place on the re-scheduled Delivery Date therefor
(all on and subject to the terms and conditions of the relevant Financing
Agreements) unless further postponed as provided herein.
(e) Anything in this Section 1 to the contrary
notwithstanding, the Company shall have the right at any time on or before the
Scheduled Delivery Date of any Aircraft, and subsequent to its giving a
Delivery Notice therefor, to postpone the Scheduled Delivery Date of such
Aircraft so as to enable the Company to change its election to treat such
Aircraft as a Leased Aircraft or an Owned Aircraft by written notice of such
postponement to the other parties hereto. The Company shall subsequently give
the parties hereto a substitute Delivery Notice complying with the provisions
of Section 1(b) hereof and specifying the new Funding Date for such postponed
Aircraft (which shall be a Business Day occurring before the Cut-off Date and
on which the Escrow Agents shall be entitled to withdraw Deposits under each of
the applicable Deposit Agreements sufficient to enable each applicable Pass
Through Trustee to fund its purchase of the related Equipment Notes). In
addition, the Company shall have the further right, anything in this Section 1
to the contrary notwithstanding, to accept delivery of an Aircraft under the
Purchase Agreement on the Delivery Date thereof by utilization of bridge
financing of such Aircraft and promptly thereafter give the parties hereto a
Delivery Notice specifying a Funding Date not later than 60 days after the
Delivery Date of such Aircraft and no later than the Cut-off Date and otherwise
complying with the provisions of Section 1(b) hereof. All other terms and
conditions of this Note Purchase Agreement shall apply to the financing of any
such Aircraft on the re-scheduled Funding Date therefor except (i)the
re-scheduled Funding Date shall be deemed the Delivery Date of such Aircraft
for all purposes of this Section 1 and (ii)the related Financing Agreements
shall be amended to reflect the original delivery of such Aircraft to the
Company.
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(f) If the Scheduled Delivery Date for any Aircraft is
delayed (a) more than 60 days beyond the last day of the month set forth
opposite such Aircraft under the heading "Scheduled Delivery Months" in
Schedule I hereto or (b) beyond the Delivery Period Termination Date, the
Company may identify for delivery a substitute aircraft therefor meeting the
following conditions (a "Substitute Aircraft"): (i) a Substitute Aircraft must
be a Boeing 747-400F aircraft manufactured after 1993, so long as after giving
effect thereto such substitution does not vary the Mandatory Economic Terms,
and (ii) the Company shall be obligated to obtain Rating Agency Confirmation in
respect of the replacement of any Aircraft by Substitute Aircraft. Upon the
satisfaction of the conditions set forth above with respect to a Substitute
Aircraft, the Aircraft to be replaced shall cease to be subject to this
Agreement and all rights and obligations of the parties hereto concerning such
Aircraft shall cease, and such Substitute Aircraft shall become and thereafter
be subject to the terms and conditions of this Agreement to the same extent as
such Aircraft.
(g) The Company shall have no liability for the failure of
any Pass Through Trustee to purchase Equipment Notes with respect to any
Aircraft or Substitute Aircraft, other than the Company's obligation, if any,
to pay the Deposit Make-Whole Premium pursuant to Section 4(a)(i) of this
Agreement.
(h) The parties agree that if, in connection with the
delivery of an Aircraft or Substitute Aircraft, any Owner Participant who is to
be a party to any Lease Financing Agreement or Special Financing Agreement
shall not be a "Citizen of the United States" within the meaning of Section
40102(a)(15) of the Act, then the applicable Lease Financing Agreements shall
be modified, consistent with the Mandatory Document Terms, to require such
Owner Participant to enter into a voting trust, voting powers, control rights
or similar arrangement satisfactory to the Company that (A) enables such
Aircraft or Substitute Aircraft to be registered in the United States and (B)
complies with the FAA regulations issued under the Act applicable thereto.
(i) Anything herein to the contrary notwithstanding, the
Company shall not have the right, and shall not be entitled, at any time to
request the issuance of Equipment Notes of any series to any Pass Through
Trustee in an aggregate principal amount in excess of the amount of the
Deposits then available for withdrawal by the Escrow Agent under and in
accordance with the provisions of the related Deposit Agreement.
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SECTION 2. Conditions Precedent. The obligation of the Pass
Through Trustees to enter into, and to cause the Subordination Agent to enter
into, any Participation Agreement as directed pursuant to a Delivery Notice and
to perform its obligations under such Participation Agreement is subject to
satisfaction of the following conditions:
(a) no Triggering Event shall have occurred; and
(b) the Company shall have delivered to each such Pass
Through Trustee and each Liquidity Provider a certificate stating that
(i) such Participation Agreement and the other Financing Agreements to
be entered into pursuant to such Participation Agreement do not vary
the Mandatory Economic Terms and contain the Mandatory Document Terms
and (ii)any substantive modification of such Financing Agreements from
the forms thereof attached to this Agreement do not materially and
adversely affect the Certificateholders, and such certification shall
be true and correct; and
(c) The Company shall have delivered to each Pass Through
Trustee and each Liquidity Provider a certificate stating that the
Company has previously deposited with the Depositary any and all Delay
Increase Amounts required to be deposited pursuant to Section 3(a) of
the Indemnity Agreement and that the Maturity Date or Rescheduled
Maturity Date, as the case may be, for each Deposit relating to an
Aircraft with respect to which a Delivery Notice has been delivered
hereunder is a date occurring on or after the Funding Date specified
in such Delivery Notice, and such certification shall be true and
correct. For purposes of this Section 2(c), the terms "Delay Increase
Amount," "Maturity Date" and "Rescheduled Maturity Date" shall have
the meanings specified in the Indemnity Agreement.
Anything herein to the contrary notwithstanding, the
obligation of each Pass Through Trustee to purchase Equipment Notes shall
terminate on the Cut-off Date.
SECTION 3. Representations and Warranties. (a) The Company
represents and warrants that:
(i) the Company is duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and is a
"citizen of the United States" as defined in 49 U.S.C. Section 40102
and a U.S. Air Carrier,
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and has the full corporate power, authority and legal right under the
laws of the State of Delaware to execute and deliver this Agreement
and each Financing Agreement to which it will be a party and to carry
out the obligations of the Company under this Agreement and each
Financing Agreement to which it will be a party;
(ii) the execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations under
this Agreement have been duly authorized by the Company and will not
violate its Certificate of Incorporation or by-laws or the provisions
of any indenture, mortgage, contract or other agreement to which it is
a party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against it in accordance with
its terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of equity,
whether considered in a proceeding at law or in equity.
(b) WTC represents and warrants that:
(i) WTC is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is a "citizen of
the United States" as defined in 49 U.S.C. Section 40102, and has the
full corporate power, authority and legal right under the laws of the
State of Delaware and the United States pertaining to its banking,
trust and fiduciary powers to execute and deliver this Agreement and
each Financing Agreement to which it will be a party and to carry out
the obligations of WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, under this
Agreement and each Financing Agreement to which it will be a party;
(ii) the execution and delivery by WTC, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the case
may be, of this Agreement and the performance by WTC, in its capacity
as Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, of its obligations under this Agreement have been duly
authorized by WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, and will not
violate its articles of association or by-laws or the provisions of
any indenture, mortgage, contract
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or other agreement to which it is a party or by which it is bound;
and
(iii) this Agreement constitutes the legal, valid and binding
obligations of WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, enforceable
against it in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a
proceeding at law or in equity.
(c) The Pass Through Trustee hereby confirms to each of the
other parties hereto that its representations and warranties set forth in
Section 7.15 of each Pass Through Trust Agreement set forth on Schedule II
hereto are true and correct as of the date hereof.
(d) The Subordination Agent represents and warrants that:
(i) the Subordination Agent is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware,
and has the full corporate power, authority and legal right under the
laws of the State of Delaware and the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver this
Agreement and each Financing Agreement to which it is or will be a
party and to perform its obligations under this Agreement and each
Financing Agreement to which it is or will be a party;
(ii) this Agreement has been duly authorized, executed and
delivered by the Subordination Agent; this Agreement constitutes the
legal, valid and binding obligations of the Subordination Agent
enforceable against it in accordance with its terms, except as the
same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance by the
Subordination Agent of this Agreement contravenes any law, rule or
regulation of the State of Delaware or any United States governmental
authority or agency regulating the Subordination Agent's banking,
trust or fiduciary
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powers or any judgment or order applicable to or binding on the
Subordination Agent and do not contravene the Subordination Agent's
articles of association or by-laws or result in any breach of, or
constitute a default under, any agreement or instrument to which the
Subordination Agent is a party or by which it or any of its
properties may be bound;
(iv) neither the execution and delivery by the Subordination
Agent of this Agreement nor the consummation by the Subordination
Agent of any of the transactions contemplated hereby requires the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any Delaware
governmental authority or agency or any federal governmental authority
or agency regulating the Subordination Agent's banking, trust or
fiduciary powers;
(v) there are no Taxes payable by the Subordination Agent
imposed by the State of Delaware or any political subdivision or
taxing authority thereof in connection with the execution, delivery
and performance by the Subordination Agent of this Agreement (other
than franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services rendered
in connection with the transactions contemplated by the Intercreditor
Agreement or any of the Liquidity Facilities), and there are no Taxes
payable by the Subordination Agent imposed by the State of Delaware or
any political subdivision thereof in connection with the acquisition,
possession or ownership by the Subordination Agent of any of the
Equipment Notes (other than franchise or other taxes based on or
measured by any fees or compensation received by the Subordination
Agent for services rendered in connection with the transactions
contemplated by the Intercreditor Agreement or any of the Liquidity
Facilities); and
(vi) there are no pending or threatened actions or
proceedings against the Subordination Agent before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect the
ability of the Subordination Agent to perform its obligations under
this Agreement.
(e) The Escrow Agent represents and warrants that:
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(i) the Escrow Agent is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States and has the full corporate power, authority and legal
right under the laws of the United States pertaining to its banking,
trust and fiduciary powers to execute and deliver this Agreement, each
Deposit Agreement and each Escrow Agreement and to carry out the
obligations of the Paying Agent under each of the Escrow Agreements;
(ii) the execution and delivery by the Escrow Agent of each
of the Escrow Agreements and the performance by the Escrow Agent of
its obligations hereunder and thereunder have been duly authorized by
the Escrow Agent and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound; and
(iii) each of the Escrow Agreements constitutes the legal,
valid and binding obligations of the Escrow Agent enforceable against
it in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity.
(f) The Paying Agent represents and warrants that:
(i) the Paying Agent is duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and has
the full corporate power, authority and legal right under the laws of
the United States pertaining to its banking, trust and fiduciary
powers to execute and deliver this Agreement and each Escrow Agreement
and to carry out the obligations of the Paying Agent under each of the
Escrow Agreements;
(ii) the execution and delivery by the Paying Agent of each
of the Escrow Agreements and the performance by the Paying Agent of
its obligations hereunder and thereunder have been duly authorized by
the Paying Agent and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound; and
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(iii) each of the Escrow Agreements constitutes the legal,
valid and binding obligations of the Paying Agent enforceable against
it in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity.
SECTION 4. Covenants. (a) The Company covenants with each
of the other parties hereto that:
(i) on the date that the Depositary is obligated to pay the
amount of the Final Withdrawal to the Paying Agent pursuant to a
Deposit Agreement relating to any Trust, the Company shall pay to the
Pass Through Trustee of such Trust no later than 12:30 p.m. (New York
time) an amount equal to the Deposit Make-Whole Premium, if any,
required to be paid in respect of such Final Withdrawal amount;
(ii) subject to Section 4(a)(iv) of this Agreement, the
Company shall at all times maintain its corporate existence and shall
not wind up, liquidate or dissolve or take any action, or fail to take
any action, that would have the effect of any of the foregoing;
(iii) the Company shall at all times remain a U.S. Air
Carrier (as defined in the Financing Agreements) and shall at all
times be otherwise certificated and registered to the extent necessary
to entitle (i) in the case of Leased Aircraft, the Owner Trustee (and
the Loan Trustee as assignee of the Owner Trustee's rights under each
Lease) to the rights afforded to lessors of aircraft equipment under
Section 1110 and (ii) in the case of Owned Aircraft, the Loan Trustee
to the rights afforded to secured parties of aircraft equipment under
Section 1110;
(iv) Section 13.2.1 of each Lease is hereby incorporated by
reference herein;
(v) the Company agrees to provide written notice to each of
the parties hereto of the occurrence of the Cut-off Date no later than
one Business Day after the date thereof; such notice to refer
specifically to the Pass Through Trustee's obligation to assign,
transfer and deliver all of its right, title and interest to the Trust
Property (as defined in each Pass Through Trust Agreement) to the
trustee of the Related Trust (as defined in each
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Pass Through Trust Agreement) in accordance with Section 11.01 of
each Pass Through Trust Agreement; and
(vi) the Company shall not issue Series D Equipment Notes
pursuant to any Owned Aircraft Indenture unless it shall have obtained
written confirmation from each Rating Agency that the issuance of such
Series D Equipment Notes will not result in (i) a reduction of the
rating for any Class of Certificates below the then current rating for
such Class of Certificates or (ii) a withdrawal or suspension of the
rating of any Class of Certificates.
(b) WTC, in its individual capacity, covenants with each of
the other parties to this Agreement that it will, immediately upon obtaining
knowledge of any facts that would cast doubt upon its continuing status as a
"citizen of the United States" as defined in 49 U.S.C. Section 40102 and
promptly upon public disclosure of negotiations in respect of any transaction
which would or might adversely affect such status, notify in writing all
parties hereto of all relevant matters in connection therewith. Upon WTC giving
any such notice, WTC shall, subject to Section 8.02 of any Indenture then
entered into, resign as Loan Trustee in respect of such Indenture.
SECTION 5. Notices. Unless otherwise specifically provided
herein, all notices required or permitted by the terms of this Agreement shall
be in English and in writing, and any such notice shall become effective upon
being delivered personally or, if promptly confirmed by mail, when dispatched
by facsimile or other written telecommunication, addressed to such party hereto
at its address or facsimile number set forth below the signature of such party
at the foot of this Agreement.
SECTION 6. Expenses. (a) The Company agrees to pay to the
Subordination Agent when due an amount or amounts equal to the fees payable to
the relevant Liquidity Provider under Section 2.03 of each Liquidity Facility
and the related Fee Letter (as defined in the Intercreditor Agreement)
multiplied by a fraction the numerator of which shall be the then outstanding
aggregate amount of the Deposits under the Deposit Agreements and the
denominator of which shall be the sum of (x) the then outstanding aggregate
principal amount of the Series A Equipment Notes, Series B Equipment Notes and
Series C Equipment Notes issued under all of the Indentures and (y) the then
outstanding aggregate amount of the Deposits under the Deposit Agreements.
17
-15-
(b) So long as no Equipment Notes have been issued in respect
of any Aircraft, the Company agrees to pay (i) to the Subordination Agent when
due (A) the amount equal to interest on any Downgrade Advance payable under
Section 3.07(e) of each Liquidity Facility minus Investment Earnings while such
Downgrade Advance shall be outstanding, (B) the amount equal to interest on any
Non-Extension Advance payable under Section 3.07(f) of the ABN AMRO Liquidity
Facility minus Investment Earnings while such Non-Extension Advance shall be
outstanding and (C) any other amounts owed to the Liquidity Provider by the
Subordination Agent as borrower under each Liquidity Facility (other than
amounts due as repayment of advances thereunder or as interest on such
advances, except to the extent payable pursuant to clause (A) or (B)), (ii) all
compensation and reimbursement of expenses, disbursements and advances payable
by the Company under the Pass Through Trust Agreements, (iii) all compensation
and reimbursement of expenses and disbursements payable to the Subordination
Agent under the Intercreditor Agreement except with respect to any income or
franchise taxes incurred by the Subordination Agent in connection with the
transactions contemplated by the Intercreditor Agreement and (iv) in the event
the Company requests any amendment to any Operative Agreement, all reasonable
fees and expenses (including, without limitation, fees and disbursements of
counsel) of the Escrow Agent and/or the Paying Agent in connection therewith.
For purposes of this Section 6(b), the terms "Applied Downgrade Advance",
"Downgrade Advance" and "Investment Earnings" shall have the meanings specified
in each Liquidity Facility and "Non-Extension Advance" and "Applied
Non-Extension Advance" shall have the meanings specified in the ABN AMRO
Liquidity Facility.
SECTION 7. Further Assurances. Each party hereto shall duly
execute, acknowledge and deliver, or shall cause to be executed, acknowledged
and delivered, all such further agreements, instruments, certificates or
documents, and shall do and cause to be done such further acts and things, in
any case, as any other party hereto shall reasonably request in connection with
its administration of, or to carry out more effectually the purposes of, or to
better assure and confirm unto it the rights and benefits to be provided under,
this Agreement.
SECTION 8. Miscellaneous. (a) Provided that the transactions
contemplated hereby have been consummated, and except as otherwise provided for
herein, the representations, warranties and agreements herein of the Company,
the Subordination Agent, the Escrow Agent, the Paying Agent and the
18
-16-
Pass Through Trustee, and the Company's, the Subordination Agent's, the Escrow
Agent's, the Paying Agent's and the Pass Through Trustee's obligations under
any and all thereof, shall survive the expiration or other termination of this
Agreement and the other agreements referred to herein.
(b) This Agreement may be executed in any number of
counterparts (and each of the parties hereto shall not be required to execute
the same counterpart). Each counterpart of this Agreement, including a
signature page executed by each of the parties hereto, shall be an original
counterpart of this Agreement, but all of such counterparts together shall
constitute one instrument. Neither this Agreement nor any of the terms hereof
may be terminated, amended, supplemented, waived or modified orally, but only
by an instrument in writing signed by the party against which the enforcement
of the termination, amendment, supplement, waiver or modification is sought.
The index preceding this Agreement and the headings of the various Sections of
this Agreement are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof. The terms of
this Agreement shall be binding upon, and shall inure to the benefit of, the
Company and its successors and permitted assigns, the Pass Through Trustee and
its successors as Pass Through Trustee (and any additional trustee appointed)
under any of the Pass Through Trust Agreements, the Escrow Agent and its
successors as Escrow Agent under the Escrow Agreements, the Paying Agent and
its successors as Paying Agent under the Escrow Agreements and the
Subordination Agent and its successors as Subordination Agent under the
Intercreditor Agreement.
(c) This Agreement is not intended to, and shall not, provide
any person not a party hereto (other than the Placement Agents and each of the
beneficiaries of Section 6 hereof) with any rights of any nature whatsoever
against any of the parties hereto, and no person not a party hereto (other than
the Placement Agents and each of the beneficiaries of Section 6 hereof) shall
have any right, power or privilege in respect of, or have any benefit or
interest arising out of, this Agreement.
SECTION 9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THIS
AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
19
-17-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
ATLAS AIR, INC.
By: /s/
-----------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial
Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as otherwise provided
herein, but solely as Pass Through
Trustee, Loan Trustee,
Subordination Agent and Paying
Agent, as applicable
By: /s/
-----------------------------
Name:
Title:
Address: One ▇▇▇▇▇▇ Square
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust
Administration
20
-18-
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, AS ESCROW AGENT
By: /s/
-----------------------------
Name:
Title:
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Department
21
SCHEDULE I to
Note Purchase Agreement
-----------------------
AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Aircraft Scheduled
Type Delivery Month
--------------- ------------------
Boeing 747-400F July 1998
Boeing 747-400F August 1998
Boeing 747-400F October 1998
Boeing 747-400F November 1998
Boeing 747-400F December 1998
22
SCHEDULE II to
Note Purchase Agreement
-----------------------
PASS THROUGH TRUST AGREEMENTS
Pass Through Trust Agreement dated as of the Issuance Date between the Company
and the Pass Through Trustee in respect of Atlas Air Pass Through Trust, Series
1998-1A-O.
Pass Through Trust Agreement dated as of the Issuance Date between the Company
and the Pass Through Trustee in respect of Atlas Air Pass Through Trust, Series
1998-1B-O.
Pass Through Trust Agreement dated as of the Issuance Date between the Company
and the Pass Through Trustee in respect of Atlas Air Pass Through Trust, Series
1998-1C-O.
23
SCHEDULE III to
Note Purchase Agreement
-----------------------
DEPOSIT AGREEMENTS
Deposit Agreement (Class A) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
Deposit Agreement (Class B) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
Deposit Agreement (Class C) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
24
SCHEDULE IV to
Note Purchase Agreement
-----------------------
ESCROW AND PAYING AGENT AGREEMENTS
Escrow and Paying Agent Agreement (Class A) dated as of the Issuance Date among
the Escrow Agent, the Placement Agents, the Pass Through Trustee and the Paying
Agent.
Escrow and Paying Agent Agreement (Class B) dated as of the Issuance Date among
the Escrow Agent, the Placement Agents, the Pass Through Trustee and the Paying
Agent.
Escrow and Paying Agent Agreement (Class C) dated as of the Issuance Date among
the Escrow Agent, the Placement Agents, the Pass Through Trustee and the Paying
Agent.
25
SCHEDULE V to
Note Purchase Agreement
MANDATORY DOCUMENT TERMS
1. May not modify in any material adverse respect the Granting Clause of
the Trust Indenture Form so as to deprive the Note Holders, the Loan
Participants or the Indenture Indemnitees of a first priority security
interest in and mortgage lien on the Aircraft and the Lease or to
eliminate any of the obligations secured thereby or otherwise modify
in any material adverse respect as regards the interests of the Note
Holders, the Subordination Agent, the Liquidity Providers or the
Mortgagee the provisions of Article II or III or Section 4.02, 4.03,
4.04, 5.02, 5.06, 9.01(b), 10.04, 10.11 or 10.12 of the Trust
Indenture Form.
2. May not modify in any material adverse respect as regards the
interests of the Note Holders, the Subordination Agent, the Liquidity
Providers or the Mortgagee the provisions of Section 3.2.1(e), 3.3(c),
4.7, the final sentence of 7.1.1, 10.3.1(d)(ii), 13.3, 16, 18.3 or
18.7(a) or Clause D of Annex D of the Lease Form or otherwise modify
the terms of the Lease Form so as to deprive the Mortgagee of rights
expressly granted to the "Mortgagee" therein.
3. May not modify in any material adverse respect as regards the interests
of the Note Holders, the Subordination Agent, the Liquidity Providers
or the Mortgagee the provisions of Section 5.1.9, 5.1.10, 5.1.11,
5.1.12, 7.5, 12, 15.8(a) or 15.9 of the Participation Agreement Form
or of the provisions of Section 5.1.2(xxiii) or 10.1.1(a)(iv) of the
Participation Agreement Form so as to eliminate the requirement to
deliver to the Loan Participant or the Mortgagee, as the case may be,
the legal opinions to be provided to such Persons thereunder
(recognizing that the lawyers rendering such opinions may be changed)
or of the provisions of Section 7.6.11(a)(ii) of the Participation
Agreement Form as regards the rights of the Mortgagee thereunder or
otherwise modify the terms of the Participation Agreement Form to
deprive the Trustees, the Subordination Agent, the Liquidity
Providers or the Mortgagee of any indemnity or right of reimbursement
in its favor for Expenses or Taxes.
26
-2-
4. May not modify, in any material adverse respect as regards the
interests of the Note Holders, the Subordination Agent, the Liquidity
Providers or the Mortgagee, the definition of "Make Whole Amount" in
Annex A to the Participation Agreement Form.
Notwithstanding the foregoing, any such Mandatory Document Term may be modified
to correct or supplement any such provision which may be defective or to cure
any ambiguity or correct any mistake, provided that any such action shall not
materially adversely affect the interests of the Note Holders, the
Subordination Agent, the Liquidity Providers, the Mortgagee or the
Certificateholders.
27
SCHEDULE VI to
Note Purchase Agreement
-----------------------
MANDATORY ECONOMIC TERMS
------------------------
Equipment Notes
Obligor: Atlas Air or an Owner Trust
Maximum Principal Amount:
The maximum principal amount of all Equipment Notes issued with
respect to an Aircraft shall not exceed the maximum principal amount
of Equipment Notes indicated for such Aircraft as set forth in the
Offering Memorandum in "Offering Memorandum Summary--Summary of Terms
of Certificates--Equipment Notes and the Aircraft" under the column
"Maximum Principal Amount of Equipment Notes".
Aggregate Maximum Principal Amount:
For all Boeing 747-400F Aircraft $538,915,000
The aggregate original principal amount of all Equipment Notes for all
Aircraft shall not exceed the aggregate face amount of all
Certificates issued on the Issuance Date.
The aggregate original principal amount of all Equipment Notes of any
series shall not exceed the aggregate face amount of all Certificates
of the related Class issued on the Issuance Date.
Initial Loan to Aircraft Value (with the value of any Aircraft equal to the
value for such Aircraft set forth in the Offering Memorandum in "Offering
Memorandum Summary--Summary of Terms of Certificates--Equipment Notes and the
Aircraft" under the column "Appraised Value"):
Series A: not in excess of 38.1%
Series B: not in excess of 52.8%
Series C: not in excess of 68.4%
Initial Average Life (in years) for each Boeing 747-400F Aircraft from the
Issuance Date:
28
-4-
Series A: not less than 11.5 years or more than 15 years
Series B: not less than 8.5 years or more than 12 years
Series C: not less than 4.5 years or more than 7.5 years
Average Life (in years):
As of the Delivery Period Termination Date (or if earlier, the date of
the occurrence of a Triggering Event), the average life of the Class A
Certificates, the Class B Certificates and the Class C Certificates
shall not be less than, respectively, 13.5 years, 10 years and 5 years
or shall not extend beyond, respectively, 15 years, 11 years and 6.5
years from the Issuance Date (computed without regard to the
acceleration of any Equipment Notes and after giving effect to any
special distribution on the Certificates thereafter required in
respect of unused Deposits).
Final Expected Regular Distribution Date:
Series A: not in excess of 20 years from the Issuance Date
Series B: not in excess of 16 years from the Issuance Date
Series C: not in excess of 12 years from the Issuance Date
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears):
Series A: 7.38%
Series B: 7.68%
Series C: 8.01%
The interest rate applicable to each Series of Equipment
Notes must be equal to the rate applicable to the Certificates issued by the
corresponding Pass Through Trust.
Payment Due Rates: Debt Rate plus 2% per annum
Payment Dates: January 2 and July 2
▇▇
-▇-
▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇: As provided in Article II of the form of
Trust Indenture marked as Exhibit A-3
of the Note Purchase Agreement (the
"Trust Indenture Form") or the Owned
Aircraft Indenture marked as Exhibit
C-2 of the Note Purchase Agreement
Redemption and As provided in Article II of the Trust
Purchase: Indenture Form
Lease
Term: The Base Lease Term shall expire by its
terms on or after final maturity date
of the related Series A Equipment Notes
Lease Payment Dates: January 2 and July 2
Minimum Rent: Basic Rent due and payable on each
Payment Date shall be at least
sufficient to pay in full, as of such
Payment Date (assuming timely payment
of the related Equipment Notes prior to
such Date), the aggregate principal
amount of scheduled installments due on
the related Equipment Notes outstanding
on such Payment Date, together with
accrued and unpaid interest thereon
Supplemental Rent: Sufficient to cover the sums described
in clauses (a) through (d) of such term
as defined in Annex A to the form of
Lease (the "Lease Form") marked as
Exhibit A-2 of the Note Purchase
Agreement
Stipulated Loss Value: At all times equal to or greater than
the then outstanding principal amount
of the related Equipment Notes together
with accrued interest thereon
Termination Value: At all times equal to or greater than
the then outstanding principal amount
of the related Equipment Notes together
with accrued interest thereon
All-risk Hull Not less than the Stipulated Loss Value,
Insurance: subject to Lessee's right to self-insure
on terms no more favorable to Lessee in
30
-6-
any material respect than those set
forth in Section G of Annex D to the
Lease Form
Minimum Liability As set forth in Schedule 1 to the Lease
Insurance Amount: Form
Past Due Rate: As set forth in Schedule 1 to the Lease
Form
SLV Rate: As set forth in Schedule 1 to the Lease
Form
Participation Agreement
Mortgagee, Subordination Agent, Liquidity Providers, Pass Through
Trustees, Escrow Agents and Note Holders shall be indemnified against
Expenses and Taxes to the extent set forth in Section 9 of the form of
the Participation Agreement marked as Exhibit A-1 to the Note Purchase
Agreement (the "Participation Form")
31
SCHEDULE VII to
Note Purchase Agreement
-----------------------
AGGREGATE AMORTIZATION SCHEDULE
1998-1A Trust 1998-1B Trust 1998-1C Trust
Scheduled Scheduled Scheduled
Principal Principal Principal
Date Payment Payment Payment
------------------- -------------------- ------------------- --------------------
January 2, 1999 $ 2,397,500 $ 3,848,330 $ 9,840,000
July 2, 1999 1,202,214 462,390 1,857,739
January 2, 2000 4,802,928 924,780 8,946,554
July 2, 2000 1,202,214 462,390 1,929,568
January 2, 2001 4,802,928 924,780 9,654,226
July 2, 2001 1,202,214 462,390 1,977,429
January 2, 2002 4,802,928 924,780 10,368,798
July 2, 2002 1,202,214 462,390 2,013,610
January 2, 2003 3,600,714 1,225,560 10,351,430
July 2, 2003 2,404,428 924,780 2,042,816
January 2, 2004 3,600,714 1,384,890 10,981,357
July 2, 2004 2,404,428 924,780 2,067,365
January 2, 2005 3,600,714 4,658,111 8,545,109
July 2, 2005 2,404,428 924,780 2,088,574
January 2, 2006 3,600,714 10,807,954 4,557,132
July 2, 2006 2,404,428 1,061,139 2,107,268
January 2, 2007 3,600,714 11,521,480 5,340,120
July 2, 2007 2,404,428 1,314,296 2,123,996
January 2, 2008 3,600,714 12,161,923 6,353,247
July 2, 2008 2,404,428 1,592,973 2,139,143
January 2, 2009 3,600,714 9,774,504 7,440,749
July 2, 2009 2,404,428 1,896,919 2,152,993
January 2, 2010 3,600,714 4,479,836 8,300,777
July 2, 2010 2,404,428 2,225,904 0
January 2, 2011 9,843,155 5,385,566 0
July 2, 2011 3,716,432 2,579,723 0
January 2, 2012 22,558,848 7,766,713 0
July 2, 2012 4,125,102 2,958,186 0
January 2, 2013 26,190,164 7,473,591 0
July 2, 2013 4,546,731 3,361,120 0
January 2, 2014 27,026,626 10,604,042 0
July 2, 2014 4,980,851 0 0
January 2, 2015 30,758,116 0 0
July 2, 2015 5,427,034 0 0
January 2, 2016 29,278,952 0 0
July 2, 2016 5,884,893 0 0
January 2, 2017 13,015,118 0 0
July 2, 2017 6,354,074 0 0
January 2, 2018 36,892,528 0 0
32
ANNEX A to
Note Purchase Agreement
-----------------------
DEFINITIONS
33
EXHIBIT A-1 to
Note Purchase Agreement
-----------------------
FORM OF LEASED AIRCRAFT PARTICIPATION AGREEMENT
34
EXHIBIT A-2 to
Note Purchase Agreement
-----------------------
FORM OF LEASE
35
EXHIBIT A-3 to
Note Purchase Agreement
-----------------------
FORM OF LEASED AIRCRAFT INDENTURE
36
EXHIBIT A-4 to
Note Purchase Agreement
-----------------------
FORM OF AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT
37
EXHIBIT A-5 to
Note Purchase Agreement
-----------------------
FORM OF LEASED AIRCRAFT TRUST AGREEMENT
38
EXHIBIT B to
Note Purchase Agreement
-----------------------
FORM OF DELIVERY NOTICE
__________ __, 199_
Wilmington Trust Company
One ▇▇▇▇▇▇ Square
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
First Security Bank, National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention:
Standard & Poor's Ratings Service
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention:
Fitch IBCA, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention:
Re: Atlas Air
Gentlemen:
Reference is made to the Note Purchase Agreement dated as of
February 9, 1998 (the "Note Purchase Agreement") among Atlas Air, Inc.
("Atlas"), Wilmington Trust Company, as Pass Through Trustee under each of the
Pass Through Trust Agreements, as Subordination Agent and as Paying Agent, and
First Security Bank, National Association, as Escrow Agent.
In accordance with Section 1(b) of the Note Purchase
Agreement, the undersigned hereby notifies you as follows:
39
-9-
(i) Delivery of an Aircraft, and the consummation of the
financing therefor, will take place on ___________, __, 199_, which is
a Business Day before the Cut-off Date.
(ii) Atlas will treat the Aircraft as a [Leased] [Owned]
Aircraft.
(iii) [The Owner Participant (a) is not an Affiliate of the
Company and (b) based on the representations of the Owner Participant,
is a Qualified Owner Participant or is a person the obligations of
which under the Owner Participant Agreements are guaranteed by a
Qualified Owner Participant].1
(iv) The aggregate principal amount of Series A Equipment
Notes to be issued and purchased by the Pass Through Trustee is $[ ].
(v) The aggregate principal amount of Series B Equipment
Notes to be issued and purchased by the Pass Through Trustee is $[ ].
(vi) The aggregate amount of Series C Equipment Notes to be
issued and purchased by the Pass Though Trustee is $[ ].
The undersigned hereby directs the Pass Through Trustee to
(a) instruct the Escrow Agent to provide Notices of Purchase Withdrawal to the
Depositary in respect of the Equipment Notes to be issued as specified above
and (b) enter into the Participation Agreement included in the Financing
Agreements with respect to the Aircraft on the date specified in clause (i)
above and to perform its obligations thereunder.
ATLAS AIR, INC.
By:
-----------------------------
Name:
Title:
----------------------------
* Includes for Leased Aircraft only.
40
EXHIBIT C-1 to
Note Purchase Agreement
-----------------------
FORM OF OWNED AIRCRAFT PARTICIPATION AGREEMENT
41
EXHIBIT C-2 to
Note Purchase Agreement
-----------------------
FORM OF OWNED AIRCRAFT INDENTURE