EXECUTION COPY
ESCROW AND PAYING AGENT AGREEMENT
(Class B)
Dated as of April 13, 1999
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Escrow Agent
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BT ALEX. ▇▇▇▇▇ INCORPORATED
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
ING BARING ▇▇▇▇▇▇ ▇▇▇▇ LLC
as Underwriters
WILMINGTON TRUST COMPANY
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
Atlas Air Pass Through Trust 1999-1B
as Pass Through Trustee
and
WILMINGTON TRUST COMPANY
as Paying Agent
TABLE OF CONTENTS
Page
SECTION 1. Escrow Agent ............................................ 2
Section 1.01. Appointment of Escrow Agent ............................. 2
Section 1.02. Instruction; Etc ........................................ 3
Section 1.03. Initial Escrow Amount; Issuance of Escrow Receipts ...... 3
Section 1.04. Payments to Receiptholders .............................. 4
Section 1.05. Mutilated, Destroyed, Lost or Stolen Escrow Receipt ..... 4
Section 1.06. Additional Escrow Amounts ............................... 5
Section 1.07. Resignation or Removal of Escrow Agent .................. 5
Section 1.08. Persons Deemed Owners ................................... 6
Section 1.09. Further Assurances ...................................... 6
SECTION 2. Paying Agent ............................................ 6
Section 2.01. Appointment of Paying Agent ............................. 6
Section 2.02. Establishment of Paying Agent Account ................... 6
Section 2.03. Payments from Paying Agent Account ...................... 7
Section 2.04. Withholding Taxes ....................................... 8
Section 2.05. Resignation or Removal of Paying Agent .................. 8
Section 2.06. Notice of Prepayment Withdrawal and Final Withdrawal .... 8
SECTION 3. Payments ................................................ 9
SECTION 4. Other Actions ........................................... 9
SECTION 5. Representations and Warranties of the Escrow Agent ...... 10
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Page
SECTION 6. Representations and Warranties of the Paying Agent ...... 11
SECTION 7. Indemnification ......................................... 12
SECTION 8. Amendment, Etc. ......................................... 12
SECTION 9. Notices ................................................. 13
SECTION 10. Transfer ................................................ 14
SECTION 11. Entire Agreement ........................................ 14
SECTION 12. Governing Law ........................................... 14
SECTION 13. Waiver of Jury Trial Right .............................. 14
SECTION 14. Counterparts ............................................ 14
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
Exhibit C Prepayment Withdrawal Certificate
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ESCROW AND PAYING AGENT AGREEMENT (Class B) dated as of April 13, 1999 (as
amended, modified or supplemented from time to time, this "Agreement") among
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"); ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED, BT ALEX. ▇▇▇▇▇
INCORPORATED, CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP. and ING BARING ▇▇▇▇▇▇ ▇▇▇▇ LLC, as
Underwriters of the Certificates referred to below (the "Underwriters" and
together with their respective transferees and assigns as registered owners of
the Certificates, the "Investors") under the Underwriting Agreement referred to
below; WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its
individual capacity, but solely as trustee (in such capacity, together with its
successors in such capacity, the "Pass Through Trustee") under the Pass Through
Trust Agreement referred to below; and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as paying agent hereunder (in such capacity, together with
its successors in such capacity, the "Paying Agent").
W I T N E S S E T H
WHEREAS, Atlas Air, Inc. ("Atlas") and the Pass Through Trustee have
entered into a Trust Supplement dated the date hereof to the Pass Through Trust
Agreement, dated as of April 1, 1999 (together, as amended, modified or
supplemented from time to time in accordance with the terms thereof, the "Pass
Through Trust Agreement") relating to Atlas Air Pass Through Trust 1999-1B (the
"Pass Through Trust") pursuant to which the Atlas Air Pass Through Trust, Series
1999-1B Certificates referred to therein (the "Certificates") are being issued;
WHEREAS, Atlas and the Underwriters have entered into an Underwriting
Agreement dated as of April 5, 1999 (as amended, modified or supplemented from
time to time in accordance with the terms thereof, the "Underwriting Agreement")
pursuant to which the Pass Through Trustee will issue and sell the Certificates
to the Underwriters;
WHEREAS, Atlas, the Pass Through Trustee, certain other pass through
trustees and certain other persons concurrently herewith are entering into the
Note Purchase Agreement, dated as of the date hereof (the "Note Purchase
Agreement"), pursuant to which the Pass Through Trustee has agreed to acquire
from time to time on or prior to the Cut-Off Date (as defined in the Note
Purchase Agreement) equipment notes (the "Equipment Notes") issued to finance
the acquisition of aircraft by Atlas, as lessee or as owner, utilizing a portion
of the proceeds from the sale of the Certificates (the "Net Proceeds");
WHEREAS, the Underwriters and the Pass Through Trustee intend that the Net
Proceeds be held in escrow by the Escrow Agent on behalf of the Investors,
subject to withdrawal upon request by the Pass Through Trustee and satisfaction
of the conditions set forth in the Note Purchase Agreement for the purpose of
purchasing Equipment Notes, and that pending such withdrawal the Net Proceeds be
deposited on behalf of the Escrow Agent with
Credit Suisse First Boston, acting through its New York Branch, as Depositary
(the "Depositary") under the Deposit Agreement, dated as of the date hereof
between the Depositary and the Escrow Agent relating to the Pass Through Trust
(as amended, modified or supplemented from time to time in accordance with the
terms thereof, the "Deposit Agreement"), pursuant to which, among other things,
the Depositary will pay interest for distribution to the Investors and establish
accounts from which the Escrow Agent shall make withdrawals upon request of and
proper certification by the Pass Through Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying Agent to pay amounts
required to be distributed to the Investors in accordance with this Agreement;
and
WHEREAS, capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Pass Through Trust Agreement.
NOW, THEREFORE, in consideration of the obligations contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Escrow Agent.
Section 1.01. Appointment of Escrow Agent. Each of the Underwriters, for
and on behalf of each of the Investors, hereby irrevocably appoints, authorizes
and directs the Escrow Agent to act as escrow agent and fiduciary hereunder and
under the Deposit Agreement for such specific purposes and with such powers as
are specifically delegated to the Escrow Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. Any and
all money received and held by the Escrow Agent under this Agreement or the
Deposit Agreement shall be held in escrow by the Escrow Agent in accordance with
the terms of this Agreement. This Agreement is irrevocable and the Investors'
rights with respect to any monies received and held in escrow by the Escrow
Agent under this Agreement or the Deposit Agreement shall only be as provided
under the terms and conditions of this Agreement and the Deposit Agreement. The
Escrow Agent (which term as used in this sentence shall include reference to its
affiliates and its own and its affiliates' officers, directors, employees and
agents): (a) shall have no duties or responsibilities except those expressly set
forth in this Agreement; (b) shall not be responsible to the Pass Through
Trustee or the Investors for any recitals, statements, representations or
warranties of any person other then itself contained in this Agreement or the
Deposit Agreement or for the failure by the Pass Through Trustee, the Investors
or any other person or entity (other than the Escrow Agent) to perform any of
its obligations hereunder (whether or not the Escrow Agent shall have any
knowledge thereof); and (c) shall not be responsible for any action taken or
omitted to be taken by it hereunder or provided for herein or in connection
herewith, except for its own willful misconduct or gross negligence (or simple
negligence in connection with the handling of funds).
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Section 1.02. Instruction; Etc. The Underwriters, for and on behalf of each
of the Investors, hereby irrevocably instruct the Escrow Agent, and the Escrow
Agent agrees, (a) to enter into the Deposit Agreement, (b) to appoint the Paying
Agent as provided in this Agreement, (c) upon receipt at any time and from time
to time prior to the Delivery Period Termination Date (as defined in the Note
Purchase Agreement) of a certificate substantially in the form of Exhibit B
hereto (a "Withdrawal Certificate") executed by the Pass Through Trustee,
together with an attached Notice of Purchase Withdrawal in substantially the
form of Exhibit A to the Deposit Agreement duly completed by the Pass Through
Trustee (the "Applicable Notice of Purchase Withdrawal" and the withdrawal to
which it relates, a "Purchase Withdrawal"), immediately to execute the
Applicable Notice of Purchase Withdrawal as Escrow Agent and transmit it to the
Depositary by facsimile transmission in accordance with the Deposit Agreement;
provided that, upon the request of the Pass Through Trustee after such
transmission, the Escrow Agent shall cancel such Applicable Notice of Purchase
Withdrawal, (d) upon receipt at any time and from time to time prior to the
Delivery Period Termination Date of a certificate substantially in the form of
Exhibit C hereto (a "Prepayment Withdrawal Certificate") executed by the Pass
Through Trustee, together with an attached Notice of Prepayment Withdrawal in
substantially the form of Exhibit B to the Deposit Agreement duly completed by
the Pass Through Trustee (the "Applicable Notice of Prepayment Withdrawal" and
the withdrawal to which it relates, a "Prepayment Withdrawal"), immediately to
execute the Applicable Notice of Prepayment Withdrawal as Escrow Agent and
transmit it to the Depositary by facsimile transmission in accordance with the
Deposit Agreement; provided that, upon the request of the Pass Through Trustee
after such transmission, the Escrow Agent shall cancel such Applicable Notice of
Prepayment Withdrawal, and (e) if there are any undrawn Deposits (as defined in
the Deposit Agreement) on the earlier of (i) the Delivery Period Termination
Date and (ii) the date on which the Escrow Agent receives notice from the Pass
Through Trustee that the Pass Through Trustee's obligation to purchase Equipment
Notes under the Note Purchase Agreement has terminated, to give notice to the
Depositary (with a copy to the Paying Agent) substantially in the form of
Exhibit C to the Deposit Agreement requesting a withdrawal of all of the
remaining Deposits, together with accrued and unpaid interest on such Deposits
to the date of withdrawal, on the 15th day after the date that such notice of
withdrawal is given to the Depositary (or, if not a Business Day, on the next
succeeding Business Day) (a "Final Withdrawal"), provided that if the day
scheduled for the Final Withdrawal in accordance with the
foregoing is within 10 days before a Regular Distribution Date, then the Escrow
Agent shall request that such requested Final Withdrawal be made on such Regular
Distribution Date (the date of such requested withdrawal, the "Final Withdrawal
Date"). If for any reason the Escrow Agent shall have failed to give the Final
Withdrawal Notice to the Depositary on or before May 31, 2000 (provided, that if
a labor strike or work stoppage occurs at The Boeing Company prior to such date,
such date shall be extended by adding thereto the number of days that each such
labor strike or work stoppage continues in effect), and there are unwithdrawn
Deposits on such date, the Final Withdrawal Date shall be deemed to be June 15,
2000 (or, if the May 31, 2000 date has been extended as provided in this
sentence, the fifteenth day after the Delivery Period Termination Date).
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Section 1.03. Initial Escrow Amount; Issuance of Escrow Receipts. The
Escrow Agent hereby directs the Underwriters to, and the Underwriters hereby
acknowledge that on the date hereof they shall, irrevocably deliver to the
Depositary on behalf of the Escrow Agent, an amount in U.S. dollars ("Dollars")
and immediately available funds equal to $111,910,000 for deposit on behalf of
the Escrow Agent with the Depositary in accordance with Section 2.1 of the
Deposit Agreement. The Underwriters hereby instruct the Escrow Agent, upon
receipt of such sum from the Underwriters, to confirm such receipt by executing
and delivering to the Pass Through Trustee an Escrow Receipt in the form of
Exhibit A hereto (an "Escrow Receipt"), (a) to be affixed by the Pass Through
Trustee to each Certificate and (b) to evidence the same percentage interest
(the "Escrow Interest") in the Account Amounts (as defined below) as the
Fractional Undivided Interest in the Pass Through Trust evidenced by the
Certificate to which it is to be affixed. The Escrow Agent shall provide to the
Pass Through Trustee for attachment to each Certificate newly issued under and
in accordance with the Pass Through Trust Agreement an executed Escrow Receipt
as the Pass Through Trustee may from time to time request of the Escrow Agent.
Each Escrow Receipt shall be registered by the Escrow Agent in a register (the
"Register") maintained by the Escrow Agent in the same name and same manner as
the Certificate to which it is attached and may not thereafter be detached from
such Certificate to which it is to be affixed prior to the distribution of the
Final Withdrawal (the "Final Distribution"). After the Final Distribution, no
additional Escrow Receipts shall be issued and the Pass Through Trustee shall
request the return to the Escrow Agent for cancellation of all outstanding
Escrow Receipts.
Section 1.04. Payments to Receiptholders. All payments and distributions
made to holders of an Escrow Receipt (collectively "Receiptholders") in respect
of the Escrow Receipt shall be made only from amounts deposited in the Paying
Agent Account (as defined below) ("Account Amounts"). Each Receiptholder, by its
acceptance of an Escrow Receipt, agrees that (a) it will look solely to the
Account Amounts for any payment or distribution due to such Receiptholder
pursuant to the terms of the Escrow Receipt and this Agreement and (b) it will
have no recourse to Atlas, the Pass Through Trustee, the Paying Agent or the
Escrow Agent, except as expressly provided herein or in the Pass Through Trust
Agreement. No Receiptholder shall have any right to vote or in any manner
otherwise control the operation and management of the Paying Agent Account or
the obligations of the parties hereto, nor shall anything set forth herein, or
contained in the terms of the Escrow Receipt, be construed so as to constitute
the Receiptholders from time to time as partners or members of an association.
Section 1.05. Mutilated, Destroyed, Lost or Stolen Escrow Receipt. If (a)
any mutilated Escrow Receipt is surrendered to the Escrow Agent or the Escrow
Agent receives evidence to its satisfaction of the destruction, loss or theft of
any Escrow Receipt and (b) there is delivered to the Escrow Agent and the Pass
Through Trustee such security, indemnity or bond, as may be required by them to
hold each of them harmless, then, absent notice to the Escrow Agent or the Pass
Through Trustee that such destroyed, lost or stolen Escrow Receipt has been
acquired by a bona fide purchaser, and provided that the requirements of Section
8-405 of the Uniform Commercial Code in effect in any applicable jurisdiction
are met, the
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Escrow Agent shall execute, authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Escrow Receipt, a new Escrow
Receipt or Escrow Receipts and of like Escrow Interest in the Account Amounts
and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Escrow Receipt under this
Section 1.05, the Escrow Agent may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Pass
Through Trustee and the Escrow Agent) connected therewith.
Any duplicate Escrow Receipt issued pursuant to this Section 1.05 shall
constitute conclusive evidence of the appropriate Escrow Interest in the Account
Amounts, as if originally issued, whether or not the lost, stolen or destroyed
Escrow Receipt shall be found at any time.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Escrow Receipts.
Section 1.06. Additional Escrow Amounts. On the date of any Purchase
Withdrawal, the Pass Through Trustee may re-deposit with the Depositary some or
all of the amounts so withdrawn in accordance with Section 2.4 of the Deposit
Agreement.
Section 1.07. Resignation or Removal of Escrow Agent. Subject to the
appointment and acceptance of a successor Escrow Agent as provided below, the
Escrow Agent may resign at any time by giving 30 days' prior written notice
thereof to the Investors, but may not otherwise be removed except for cause by
the written consent of the Investors with respect to Investors representing
Escrow Interests aggregating not less than a majority in interest in the Account
Amounts (an "Action of Investors"). Upon any such resignation or removal, the
Investors, by an Action of Investors, shall have the right to appoint a
successor Escrow Agent. If no successor Escrow Agent shall have been so
appointed and shall have accepted such appointment within 30 days after the
retiring Escrow Agent's giving of notice of resignation or the removal of the
retiring Escrow Agent, then the retiring Escrow Agent may appoint a successor
Escrow Agent. Any successor Escrow Agent shall be a bank which has an office in
the United States with a combined capital and surplus of at least $100,000,000.
Upon the acceptance of any appointment as Escrow Agent hereunder by a successor
Escrow Agent, such successor Escrow Agent shall enter into such documents as the
Pass Through Trustee shall require and shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Escrow
Agent, and the retiring Escrow Agent shall be discharged from its duties and
obligations hereunder. No resignation or removal of the Escrow Agent shall be
effective unless a written confirmation shall have been obtained from each of
▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Rating Group, a division
of ▇▇▇▇▇▇- ▇▇▇▇ Inc. that the replacement of the Escrow Agent with the successor
Escrow Agent will not
5
result in (a) a reduction of the rating for the Certificates below the then
current rating for the Certificates or (b) a withdrawal or suspension of the
rating of the Certificates.
Section 1.08. Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Escrow Agent and the Paying Agent
may treat the Person in whose name any Escrow Receipt is registered (as of the
day of determination) as the owner of such Escrow Receipt for the purpose of
receiving distributions pursuant to this Agreement and for all other purposes
whatsoever, and neither the Escrow Agent nor the Paying Agent shall be affected
by any notice to the contrary.
Section 1.09. Further Assurances. The Escrow Agent agrees to take such
actions, and execute such other documents, as may be reasonably requested by the
Pass Through Trustee in order to effectuate the purposes of this Agreement and
the performance by the Escrow Agent of its obligations hereunder.
SECTION 2. Paying Agent.
Section 2.01. Appointment of Paying Agent. The Escrow Agent hereby
irrevocably appoints and authorizes the Paying Agent to act as its paying agent
hereunder, for the benefit of the Investors, for such specific purposes and with
such powers as are specifically delegated to the Paying Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Any and all money received and held by the Paying Agent under this
Agreement or the Deposit Agreement shall be held in the Paying Agent Account for
the benefit of the Investors. The Paying Agent (which term as used in this
sentence shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents): (a) shall have no duties
or responsibilities except those expressly set forth in this Agreement, and
shall not by reason of this Agreement be a trustee for the Escrow Agent; (b)
shall not be responsible to the Escrow Agent for any recitals, statements,
representations or warranties of any person other then itself contained in this
Agreement or for the failure by the Escrow Agent or any other person or entity
(other than the Paying Agent) to perform any of its obligations hereunder
(whether or not the Paying Agent shall have any knowledge thereof); and (c)
shall not be responsible for any action taken or omitted to be taken by it
hereunder or provided for herein or in connection herewith, except for its own
willful misconduct or gross negligence (or simple negligence in connection with
the handling of funds).
Section 2.02. Establishment of Paying Agent Account. The Paying Agent shall
establish a deposit account (the "Paying Agent Account") at Wilmington Trust
Company in the name of the Escrow Agent. It is expressly understood by the
parties hereto that the Paying Agent is acting as the paying agent of the Escrow
Agent hereunder and that no amounts on deposit in the Paying Agent Account
constitute part of the Trust Property.
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Section 2.03. Payments from Paying Agent Account. The Escrow Agent hereby
irrevocably instructs the Paying Agent, and the Paying Agent agrees to act, as
follows:
(a) On each Interest Payment Date (as defined in the Deposit
Agreement) or as soon thereafter as the Paying Agent has confirmed receipt
in the Paying Agent Account from the Depositary of any amount in respect of
accrued interest on the Deposits, the Paying Agent shall distribute out of
the Paying Agent Account the entire amount deposited therein by the
Depositary. There shall be so distributed to each Receiptholder of record
on the 15th day (whether or not a Business Day) preceding such Interest
Payment Date by check mailed to such Receiptholder, at the address
appearing in the Register, such Receiptholder's pro rata share (based on
the Escrow Interest in the Account Amounts held by such Receiptholder) of
the total amount of interest deposited by the Depositary in the Paying
Agent Account on such date, except that, with respect to Escrow Receipts
registered on the record date in the name of a nominee of the Depository
Trust Company ("DTC"), such distribution shall be made by wire transfer in
immediately available funds to the account designated by DTC.
(b) Upon the confirmation by the Paying Agent of receipt in the Paying
Agent Account from the Depositary of any amount in respect of the Final
Withdrawal, the Paying Agent shall forthwith distribute the entire amount
of the Final Withdrawal deposited therein by the Depositary. There shall be
so distributed to each Receiptholder of record on the 15th day (whether or
not a Business Day) preceding the Final Withdrawal Date by check mailed to
such Receiptholder, at the address appearing in the Register, such
Receiptholder's pro rata share (based on the Escrow Interest in the Account
Amounts held by such Receiptholder) of the total amount in the Paying Agent
Account on account of such Final Withdrawal, except that, with respect to
Escrow Receipts registered on the record date in the name of a nominee of
DTC, such distribution shall be made by wire transfer in immediately
available funds to the account designated by DTC.
(c) If any payment of interest or principal in respect of the Final
Withdrawal is not received by the Paying Agent within five days of the
applicable date when due, then it shall be distributed to Receiptholders
after actual receipt by the Paying Agent on the same basis as a Special
Payment is distributed under the Pass Through Trust Agreement.
(d) Upon the confirmation by the Paying Agent of receipt in the Paying
Agent Account from the Depositary of any amount in respect of a Prepayment
Withdrawal, the Paying Agent shall forthwith distribute the entire amount
of such Prepayment Withdrawal upon not less than 15 days prior notice to
the Receiptholders. There shall be distributed to each Receiptholder of
record on the 15th day (whether or not a Business Day) preceding such date
of distribution by check mailed to such Receiptholder, at the address
appearing in the Register, such Receiptholder's pro rata
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share (based on the Escrow Interest in the Account Amounts held by such
Receiptholder) of the total amount in the Paying Agent Account on account
of such Prepayment Withdrawal, except that, with respect to the Escrow
Receipts registered on such record date in the name of a nominee of DTC,
such distribution shall be made by wire transfer in immediately available
funds to the account designated by DTC.
(e) The Paying Agent shall include with any check mailed pursuant to
this Section any notice required to be distributed under the Pass Through
Trust Agreement that is furnished to the Paying Agent by the Pass Through
Trustee.
Section 2.04. Withholding Taxes. The Paying Agent shall exclude and
withhold from each distribution of accrued interest on the Deposits (as defined
in the Deposit Agreement) and any amount in respect of any Prepayment Withdrawal
and the Final Withdrawal any and all withholding taxes applicable thereto as
required by law. The Paying Agent agrees to act as such withholding agent and,
in connection therewith, whenever any present or future taxes or similar charges
are required to be withheld with respect to any amounts payable in respect of
the Deposits (as defined in the Deposit Agreement) or the escrow amounts, to
withhold such amounts and timely pay the same to the appropriate authority in
the name of and on behalf of the Receiptholders, that it will file any necessary
withholding tax returns or statements when due, and that, as promptly as
possible after the payment thereof, it will deliver to each such Receiptholder
appropriate documentation showing the payment thereof, together with such
additional documentary evidence as such Receiptholder may reasonably request
from time to time. The Paying Agent agrees to file any other information reports
as it may be required to file under United States law.
Section 2.05. Resignation or Removal of Paying Agent. Subject to the
appointment and acceptance of a successor Paying Agent as provided below, the
Paying Agent may resign at any time by giving 30 days' prior written notice
thereof to the Escrow Agent, but may not otherwise be removed except for cause
by the Escrow Agent. Upon any such resignation or removal, the Escrow Agent
shall have the right to appoint a successor Paying Agent. If no successor Paying
Agent shall have been so appointed and shall have accepted such appointment
within 30 days after the retiring Paying Agent's giving of notice of resignation
or the removal of the retiring Paying Agent, then the retiring Paying Agent may
appoint a successor Paying Agent. Any Successor Paying Agent shall be a bank
which has an office in the United States with a combined capital and surplus of
at least $100,000,000. Upon the acceptance of any appointment as Paying Agent
hereunder by a successor Paying Agent, such successor Paying Agent shall enter
into such documents as the Escrow Agent shall require and shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Paying Agent, and the retiring Paying Agent shall be discharged
from its duties and obligations hereunder.
Section 2.06. Notice of Prepayment Withdrawal and Final Withdrawal.
Promptly after receipt by the Paying Agent of notice that the Escrow Agent has
requested a
8
Prepayment Withdrawal or a Final Withdrawal or that a Prepayment Withdrawal or a
Final Withdrawal will be made, the Paying Agent shall cause notice of such
distribution to be mailed to each of the Receiptholders at its address as it
appears in the Register. Such notice shall be mailed not less than 15 days prior
to the distribution date of such Prepayment Withdrawal (the "Prepayment
Withdrawal Date") or of the Final Withdrawal Date, as the case may be. Such
notice shall set forth:
(i) the Prepayment Withdrawal or the Final Withdrawal Date, as the case may
be, and the date for determining Receiptholders of record who shall be
entitled to receive distributions in respect of the Prepayment Withdrawal
or Final Withdrawal,
(ii) the amount of the payment in respect of the Prepayment Withdrawal
or Final Withdrawal, as the case may be, for each $1,000 face amount
Certificate (based on information provided by the Pass Through Trustee) and
the amount thereof constituting unused Deposits (as defined in the Deposit
Agreement) and interest thereon, and
(iii) if the Prepayment Withdrawal Date or Final Withdrawal Date is
the same date as a Regular Distribution Date, the total amount to be
received on such date for each $1,000 face amount Certificate (based on
information provided by the Pass Through Trustee).
Such mailing may include any notice required to be given to
Certificateholders in connection with such distribution pursuant to the Pass
Through Trust Agreement.
SECTION 3. Payments. If, notwithstanding the instructions in Section 4 of
the Deposit Agreement that all amounts payable to the Escrow Agent under the
Deposit Agreement be paid by the Depositary directly to the Paying Agent or the
Pass Through Trustee (depending on the circumstances), the Escrow Agent receives
any payment thereunder, then the Escrow Agent shall forthwith pay such amount in
Dollars and in immediately available funds by wire transfer to (a) in the case
of a payment of accrued interest on the Deposits (as defined in the Deposit
Agreement), any Prepayment Withdrawal or any Final Withdrawal, directly to the
Paying Agent Account and (b) in the case of any Purchase Withdrawal, directly to
the Pass Through Trustee or its designee as specified and in the manner provided
in the Applicable Notice of Purchase Withdrawal. The Escrow Agent hereby waives
any and all rights of set-off, combination of accounts, right of retention or
similar right (whether arising under applicable law, contract or otherwise) it
may have against amounts payable to the Paying Agent howsoever arising.
SECTION 4. Other Actions. The Escrow Agent shall take such other actions
under or in respect of the Deposit Agreement (including, without limitation, the
enforcement
9
of the obligations of the Depositary thereunder) as the Investors, by an Action
of Investors, may from time to time request.
SECTION 5. Representations and Warranties of the Escrow Agent. The Escrow
Agent represents and warrants to Atlas, the Investors, the Paying Agent and the
Pass Through Trustee as follows:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America;
(ii) it has full power, authority and legal right to conduct its
business and operations as currently conducted and to enter into and
perform its obligations under this Agreement and the Deposit Agreement;
(iii) the execution, delivery and performance of each of this
Agreement and the Deposit Agreement have been duly authorized by all
necessary corporate action on the part of it and do not require any
stockholder approval, or approval or consent of any trustee or holder of
any indebtedness or obligations of it, and each such document has been duly
executed and delivered by it and constitutes its legal, valid and binding
obligations enforceable against it in accordance with the terms hereof or
thereof except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or equitable
principles of general application to or affecting the enforcement of
creditors' rights generally (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iv) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement or the Deposit Agreement;
(v) neither the execution, delivery or performance by it of this
Agreement or the Deposit Agreement, nor compliance with the terms and
provisions hereof or thereof, conflicts or will conflict with or results or
will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or
bylaws, as amended, of it or any similar instrument binding on it or any
order, writ, injunction or decree of any court or governmental authority
against it or by which it or any of its properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
it is a party or by which it or any of its properties is bound, or
constitutes or will constitute a default thereunder or results or will
result in the imposition of any lien upon any of its properties; and
10
(vi) there are no pending or, to its knowledge, threatened actions,
suits, investigations or proceedings (whether or not purportedly on behalf
of it) against or affecting it or any of its property before or by any
court or administrative agency which, if adversely determined, (A) would
adversely affect the ability of it to perform its obligations under this
Agreement or the Deposit Agreement or (B) would call into question or
challenge the validity of this Agreement or the Deposit Agreement or the
enforceability hereof or thereof in accordance with the terms hereof or
thereof, nor is the Escrow Agent in default with respect to any order of
any court, governmental authority, arbitration board or administrative
agency so as to adversely affect its ability to perform its obligations
under this Agreement or the Deposit Agreement.
SECTION 6. Representations and Warranties of the Paying Agent. The Paying
Agent represents and warrants to Atlas, the Investors, the Escrow Agent and the
Pass Through Trustee as follows:
(i) it is a Delaware banking company duly organized and validly
existing in good standing under the laws of its jurisdiction of
incorporation;
(ii) it has full power, authority and legal right to conduct its
business and operations as currently conducted and to enter into and
perform its obligations under this Agreement;
(iii) the execution, delivery and performance of this Agreement has
been duly authorized by all necessary corporate action on the part of it
and does not require any stockholder approval, or approval or consent of
any trustee or holder of any indebtedness or obligations of it, and such
document has been duly executed and delivered by it and constitutes its
legal, valid and binding obligations enforceable against it in accordance
with the terms hereof except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement;
(v) neither the execution, delivery or performance by it of this
Agreement, nor compliance with the terms and provisions hereof, conflicts
or will conflict with or results or will result in a breach or violation of
any of the
11
terms, conditions or provisions of, or will require any consent or approval
under, any law, governmental rule or regulation or the charter documents,
as amended, or bylaws, as amended, of it or any similar instrument binding
on it or any order, writ, injunction or decree of any court or governmental
authority against it or by which it or any of its properties is bound or
any indenture, mortgage or contract or other agreement or instrument to
which it is a party or by which it or any of its properties is bound, or
constitutes or will constitute a default thereunder or results or will
result in the imposition of any lien upon any of its properties; and
(vi) there are no pending or, to its knowledge, threatened actions,
suits, investigations or proceedings (whether or not purportedly on behalf
of it) against or affecting it or any of its property before or by any
court or administrative agency which, if adversely determined, (A) would
adversely affect the ability of it to perform its obligations under this
Agreement or (B) would call into question or challenge the validity of this
Agreement or the enforceability hereof in accordance with the terms hereof,
nor is the Paying Agent in default with respect to any order of any court,
governmental authority, arbitration board or administrative agency so as to
adversely affect its ability to perform its obligations under this
Agreement.
SECTION 7. Indemnification. Except for actions expressly required of the
Escrow Agent or the Paying Agent hereunder, each of the Escrow Agent and the
Paying Agent shall in all cases be fully justified in failing or refusing to act
hereunder unless it shall have been indemnified by the party requesting such
action in a manner reasonably satisfactory to it against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. In the event Atlas requests any amendment to any Operative
Agreement (as defined in the Note Purchase Agreement), the Pass Through Trustee
agrees to pay all reasonable fees and expenses (including, without limitation,
fees and disbursements of counsel) of the Escrow Agent and the Paying Agent in
connection therewith.
SECTION 8. Amendment, Etc. Upon request of the Pass Through Trustee and
approval by an Action of Investors, the Escrow Agent shall enter into an
amendment to this Agreement, so long as such amendment does not adversely affect
the rights or obligations of the Escrow Agent or the Paying Agent, provided that
upon request of the Pass Through Trustee and without any consent of the
Investors, the Escrow Agent shall enter into an amendment to this Agreement for
any of the following purposes:
(1) to correct or supplement any provision in this Agreement which may
be defective or inconsistent with any other provision herein or to cure any
ambiguity or correct any mistake or to modify any other provision with
respect to matters or questions arising under this Agreement, provided that
any such action shall not materially adversely affect the interests of the
Investors; or
12
(2) to comply with any requirement of the SEC, applicable law, rules
or regulations of any exchange or quotation system on which the
Certificates are listed or any regulatory body; or
(3) to evidence and provide for the acceptance of appointment under
this Agreement of a successor Escrow Agent, successor Paying Agent or
successor Pass Through Trustee.
SECTION 9. Notices. Unless otherwise expressly provided herein, any notice
or other communication under this Agreement shall be in writing (including by
facsimile) and shall be deemed to be given and effective upon receipt thereof.
All notices shall be sent to
(i) if to the Investors, as their respective names shall appear in
the Register;
(ii) if to the Escrow Agent, addressed to at its office at:
FIRST SECURITY BANK, NATIONAL ASSOCIATION ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
(iii) if to the Pass Through Trustee, addressed to it at its office
at:
WILMINGTON TRUST COMPANY
One ▇▇▇▇▇▇ Square
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
(iv) if to the Paying Agent, addressed to it at its office at:
WILMINGTON TRUST COMPANY
One ▇▇▇▇▇▇ Square
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
13
(v) in each case with a copy to Atlas, addressed to it at its office
at:
ATLAS AIR, INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
(or at such other address as any such party may specify from time to time in a
written notice to the other parties). On or prior to the execution of this
Agreement, the Pass Through Trustee has delivered to the Escrow Agent a
certificate containing specimen signatures of the representatives of the Pass
Through Trustee who are authorized to give notices and instructions with respect
to this Agreement. The Escrow Agent may conclusively rely on such certificate
until the Escrow Agent receives written notice from the Pass Through Trustee to
the contrary.
SECTION 10. Transfer. No party hereto shall be entitled to assign or
otherwise transfer this Agreement (or any interest herein) other than (in the
case of the Escrow Agent) to a successor escrow agent under Section 1.07 hereof
or (in the case of the Paying Agent) to a successor paying agent under Section
2.05 hereof, and any purported assignment in violation thereof shall be void.
This Agreement shall be binding upon the parties hereto and their respective
successors and (in the case of the Escrow Agent and the Paying Agent) their
respective permitted assigns.
SECTION 11. Entire Agreement. This Agreement sets forth all of the
promises, covenants, agreements, conditions and understandings among the Escrow
Agent, the Paying Agent, the Underwriters and the Pass Through Trustee with
respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and undertakings, inducements or conditions, express
or implied, oral or written.
SECTION 12. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 13. Waiver of Jury Trial Right. EACH OF THE ESCROW AGENT, THE
PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE ACKNOWLEDGES AND
ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
SECTION 14. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the Underwriters
and the Pass Through Trustee have caused this Escrow and Paying Agent Agreement
(Class B) to be duly executed as of the day and year first above written.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED;
BT ALEX. ▇▇▇▇▇ INCORPORATED;
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
ING BARING ▇▇▇▇▇▇ ▇▇▇▇ LLC,
as Underwriters
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY, not
in its individual capacity,
but solely as Pass Through
Trustee for and on behalf of
Atlas Air Pass Through Trust
1999-1B
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY,
as Paying Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
ATLAS AIR, INC. 1999-1B ESCROW RECEIPT
No. __
This Escrow Receipt evidences a fractional undivided interest in amounts
("Account Amounts") from time to time deposited into a certain paying agent
account (the "Paying Agent Account") described in the Escrow and Paying Agent
Agreement (Class B) dated as of April 13, 1999 (as amended, modified or
supplemented from time to time, the "Escrow and Paying Agent Agreement") among
First Security Bank, National Association, as Escrow Agent (in such capacity,
together with its successors in such capacity, the "Escrow Agent"), ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, BT Alex. ▇▇▇▇▇ Incorporated, CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.
and ING Baring ▇▇▇▇▇▇ ▇▇▇▇, LLC, as Underwriters, Wilmington Trust Company as
Pass Through Trustee (in such capacity, together with its successors in such
capacity, the "Pass Through Trustee") and Wilmington Trust Company, as paying
agent (in such capacity, together with its successors in such capacity, the
"Paying Agent"). Capitalized terms not defined herein shall have the meanings
assigned to them in the Escrow and Paying Agent Agreement.
This Escrow Receipt is issued under and is subject to the terms, provisions
and conditions of the Escrow and Paying Agent Agreement. By virtue of its
acceptance hereof the holder of this Escrow Receipt assents and agrees to be
bound by the provisions of the Escrow and Paying Agent Agreement and this Escrow
Receipt.
This Escrow Receipt represents a fractional undivided interest in amounts
deposited from time to time in the Paying Agent Account, and grants or
represents no rights, benefits or interests of any kind in respect of any assets
or property other than such amounts. This Escrow Receipt evidences the same
percentage interest in the Account Amounts as the Fractional Undivided Interest
in the Pass Through Trust evidenced by the Certificate to which this Escrow
Receipt is affixed.
All payments and distributions made to Receiptholders in respect of the
Escrow Receipt shall be made only from Account Amounts deposited in the Paying
Agent Account. The holder of this Escrow Receipt, by its acceptance of this
Escrow Receipt, agrees that it will look solely to the Account Amounts for any
payment or distribution due to it pursuant to this Escrow Receipt and that it
will not have any recourse to Atlas, the Pass Through Trustee, the Paying Agent
or the Escrow Agent, except as expressly provided herein or in the Pass Through
Trust Agreement. No Receiptholder of this Escrow Receipt shall have any right to
vote or in any manner otherwise control the operation and management of the
Paying Agent Account, nor shall anything set forth herein, or contained in the
terms of this Escrow Receipt, be construed so as to constitute the
Receiptholders from time to time as partners or members of an association.
This Escrow Receipt may not be assigned or transferred except in connection
with the assignment or transfer of the Certificate to which this Escrow Receipt
is affixed. After payment to the holder hereof of its Escrow Interest in the
Final Distribution, upon the request of the Pass Through Trustee, the holder
hereof will return this Escrow Receipt to the Pass Through Trustee.
The Paying Agent may treat the person in whose name the Certificate to
which this Escrow Receipt is attached as the owner hereof for all purposes, and
the Paying Agent shall not be affected by any notice to the contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt to be
duly executed.
Dated: ______________, ____
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By:__________________________
Name:
Title:
2
EXHIBIT B
WITHDRAWAL CERTIFICATE
(Class B)
First Security Bank, National Association,
as Escrow Agent
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement, dated as of
April 13, 1999 (the "Agreement"). We hereby certify to you that the conditions
to the obligations of the undersigned to execute a Participation Agreement
pursuant to the Note Purchase Agreement have been satisfied. Pursuant to Section
1.02(c) of the Agreement, please execute the attached Notice of Purchase
Withdrawal and immediately transmit by facsimile to the Depositary, at
_________, Attention: ____________________________.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Pass Through Trustee
By:__________________________
Name:
Dated: ____________
EXHIBIT C
PREPAYMENT WITHDRAWAL CERTIFICATE
(Class B)
First Security Bank, National Association,
as Escrow Agent
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement, dated as of
April 13, 1999 (the "Agreement"). The undersigned has been notified by Atlas
Air, Inc. that it has received written notice from The Boeing Company that the
delivery date for the Aircraft in respect of which the attached Notice of
Prepayment Withdrawal is to be given will be delayed beyond the Delivery Period
Termination Date. Pursuant to Section 1.02(d) of the Agreement, please execute
the attached Notice of Prepayment Withdrawal and immediately transmit by
facsimile to the Depositary, at ____________, Attention: _________.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Pass Through Trustee
By __________________________
Name