EXECUTION COPY
NOTE PURCHASE AGREEMENT
Dated as of April 13, 1999
Among
ATLAS AIR, INC.,
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under each of the
Pass Through Trust Agreement
WILMINGTON TRUST COMPANY,
as Subordination Agent
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
and
WILMINGTON TRUST COMPANY,
as Paying Agent
INDEX TO NOTE PURCHASE AGREEMENT
Page
SECTION 1. Financing of Aircraft.............................................3
SECTION 2. Conditions Precedent..............................................7
SECTION 3. Representations and Warranties....................................7
SECTION 4. Covenants........................................................10
SECTION 5. Notices..........................................................11
SECTION 6. Expenses.........................................................12
SECTION 7. Further Assurances...............................................12
SECTION 8. Miscellaneous....................................................12
SECTION 9. Governing Law....................................................13
Schedules
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
Annex A..Definitions
Exhibits
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
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of April 13, 1999, 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 four separate Pass Through Trust Agreements, (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
Manufacturer pursuant to the Purchase Agreement for the delivery of the five
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 Underwriting Agreement
dated April 5, 1999 (the "Underwriting Agreement") with the several underwriters
(the "Underwriters") named therein, which provides that the Company will cause
each Pass Through Trustee to issue and sell the Certificates to the
Underwriters;
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 Underwriters 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 Underwriters, 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 Underwriters 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, in the case of an Owned Aircraft, whether
Series A-2 Equipment Notes will be issued with respect to such 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
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 two revolving credit
agreements for the benefit of the Certificateholders of the Class A-1 Pass
Through Trust and the Class A-2 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 Manufacturer pursuant to which the
Company has agreed to purchase, and the 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;
(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, (i) the relevant Financing Agreements as executed and delivered shall not
vary the Mandatory Economic Terms and shall contain the Mandatory Document Terms
and (ii) subject to the next two succeeding sentences, 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. The
Leased Aircraft Participation Agreements and other Lease Financing Agreements
may contain modifications, provided, however, that with respect to any material
modifications (other than modifications affecting only the Owner Participant), a
Rating Agency Confirmation shall have been obtained from each Rating Agency by
the Company and delivered by the Company to the applicable Pass Through Trustee
on or before the relevant Delivery Date. 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. 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 either Rating Agency or of Fitch
IBCA, Inc. or Duff & ▇▇▇▇▇▇ Credit Rating Co., the Company shall deliver or
cause to be delivered to such requesting entity 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 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.
(f) If the Scheduled Delivery Date for any Aircraft is delayed (a) more
than 30 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 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.
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.
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, 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 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 the
Basic Pass Through Trust Agreement and Section 5.04 of each Trust Supplement 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 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:
(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
(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 the form 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; 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-1
Equipment Notes, Series A-2 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.
(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
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 of each 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", "Investment Earnings", "Non-Extension Advance" and "Applied
Non-Extension Advance" shall have the meanings specified in each 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 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 Underwriters 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 Underwriters
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]
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: Executive Vice President,
Treasurer and Director
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as otherwise expressly
provided herein, but solely as
Pass Through Trustee, Loan
Trustee, Subordination Agent
and Paying Agent, as applicable
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address: One ▇▇▇▇▇▇ Square
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Admin.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
SCHEDULE I to
Note Purchase Agreement
AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Scheduled Expected Manufacturer's
Delivery Registration Serial Number
Aircraft Type Month Number
Boeing 747-400F April 1999 N495 ▇▇ ▇▇▇▇▇
Boeing 747-400F June ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Boeing 747-400F July ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Boeing 747-400F August ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Boeing 747-400F February 2000 N499 ▇▇ ▇▇▇▇▇
SCHEDULE II to
Note Purchase Agreement
TRUST SUPPLEMENTS
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Atlas Air Pass Through Trust, Series 1999-1A-1.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Atlas Air Pass Through Trust, Series 1999-1A-2.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Atlas Air Pass Through Trust, Series 1999-1B.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Atlas Air Pass Through Trust, Series 1999-1C.
SCHEDULE III to
Note Purchase Agreement
DEPOSIT AGREEMENTS
Deposit Agreement (Class A-1) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
Deposit Agreement (Class A-2) 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.
SCHEDULE IV to
Note Purchase Agreement
ESCROW AND PAYING AGENT AGREEMENTS
Escrow and Paying Agent Agreement (Class A-1) dated as of the Issuance Date
among the Escrow Agent, the Underwriters, the Pass Through Trustee and the
Paying Agent.
Escrow and Paying Agent Agreement (Class A-2) dated as of the Issuance Date
among the Escrow Agent, the Underwriters, 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 Underwriters, 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 Underwriters, the Pass Through Trustee and the Paying
Agent.
SCHEDULE V to
Note Purchase Agreement
MANDATORY DOCUMENT TERMS FOR LEASE FINANCING AGREEMENTS
o 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.
o 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.
o 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.
o 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.
SCHEDULE VI to
Note Purchase Agreement
MANDATORY ECONOMIC TERMS
Equipment Notes
Obligor: Atlas Air or an Owner Trust
Maximum Principal Amount:
The aggregate 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 Prospectus Supplement in
"Prospectus Supplement Summary--Equipment Notes and the Aircraft" under the
column "Maximum Principal Amount of Equipment Notes".
Aggregate Maximum Principal Amount:
For all Boeing 747-400F Aircraft $543,566,000
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 respect to an Aircraft (with the value of
any Aircraft equal to the value (the "Assumed Appraised Value") for such
Aircraft set forth in the Prospectus Supplement in "Prospectus Supplement
Summary--Equipment Notes and the Aircraft" under the column "Appraised Base
Value"):
Series A-1: not in excess of 39.0%
Series A-2: not in excess of 39.0%
Series B: not in excess of 53.0%
Series C: not in excess of 68.0%
Loan to Aircraft Value for each series of Equipment Notes issued in respect of
each Aircraft (computed as of the date of issuance thereof on the basis of the
Assumed Appraised Value of such Aircraft and the Depreciation Assumption, as
defined in the Prospectus Supplement) as of any Regular Distribution Date
(assuming no default in the payment of the Equipment Notes):
Series A-1: not in excess of 39.0%
Series A-2: not in excess of 39.0%
Series B: not in excess of 53.0%
Series C: not in excess of 68.0%
Initial Average Life (in years) of each series of Equipment Notes for each
Boeing 747-400F Aircraft from the Issuance Date:
Series A-1: not extend beyond 15.0 years
Series B: not extend beyond 12.0 years
Series C: not extend beyond 7.5 years
Average Life (in years):
As of the Delivery Period Termination Date, the average life of the Class A-1
Certificates, the Class B Certificates and the Class C Certificates shall not
be more than, respectively, 13.5 years, 11.0 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-1: January 2, 2019
Series A-2: July 2, 2009, with no scheduled amortization
Series B: January 2, 2015
Series C: January 2, 2011
As of the Delivery Period Termination Date (assuming that Equipment Notes are
acquired by the Pass Through Trusts for all of the Aircraft), the aggregate
principal amount of the Series A-2 Equipment Notes shall equal the original face
amount of the Class A-2 Certificates.
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears):
Series A-1: 7.20%
Series A-2: 6.88%
Series B: 7.63%
Series C: 8.77%
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.
Past Due Rates: Debt Rate plus 2% per annum
Payment Dates: January 2 and July 2
Make-Whole Amounts: 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
Purchase: As provided in Article II of the Trust Indenture Form
Lease
Term: The Base Lease Term shall expire by its terms on or
after final maturity date of the related
Series A-1 Equipment Notes
Lease Payment Dates: January 2 and July 2,
provided that rent under a Lease may also be
paid at the election of Atlas Air upon the
commencement of such Lease and on any other
date agreed between Atlas Air and the Owner
Participant that occurs after the latest
maturity date of the Equipment Notes issued
in connection with the acquisition of the
Aircraft to which such Lease relates.
Minimum Rent: [Basic] Rent due and payable on each
Lease Payment Date shall be at least
sufficient to pay in full, as of such Lease
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 Lease 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
Insurance: Not less than the Stipulated Loss Value or,
in the case of an Owned Aircraft, not less
than the unpaid principal amount of the
related Equipment Notes, subject to Lessees
right to self-insure on terms no more
favorable to Lessee in any material respect
than those set forth in Section G of Annex D
to the Lease Form
Minimum Liability
Insurance Amount: As set forth in Schedule 1 to the Lease 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, Guarantor, 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"), Lease Form and Trust
Indenture Form.
SCHEDULE VII to
Note Purchase Agreement
AGGREGATE AMORTIZATION SCHEDULE
Date 1999-1A-1 Trust 1999-1B Trust 1999-1C Trust
Scheduled Principal Scheduled Principal Scheduled Principal
Payment Payment Payment
ANNEX A to
Note Purchase Agreement
DEFINITIONS
"ABN AMRO Liquidity Facility" means the Liquidity Facility between ABN AMRO
Bank N.V., Chicago Branch, and the Subordination Agent.
"Act" means 49 U.S.C. Section 40101-46507.
"Adjusted Treasury Yield" means the Treasury Yield plus, in the case of a
distribution to holders of (i) Class ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇)
Class A-2 Certificates, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇▇) Class B Certificates, 235 basis
points and, (iv) Class C Certificates, 337.5 basis points.
"Affiliate" means, with respect to any person, any other person directly or
indirectly controlling, controlled by or under common control with such person.
For purposes of this definition, "control" means the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such person, whether through the ownership of voting securities or by contract
or otherwise and "controlling," "controlled by" and "under common control with"
have correlative meanings.
"Aircraft" has the meaning set forth in the second recital to the Note
Purchase Agreement.
"Aircraft Purchase Agreement Assignment" means a Purchase Agreement and
Engine Warranties Assignment substantially in the form of Exhibit A-4 to the
Note Purchase Agreement.
"Assumed Amortization Schedule" means Schedule VII to the Note Purchase
Agreement.
"Average Life Date" means, for any Equipment Note, the date which follows
the time of determination by a period equal to the Remaining Weighted Average
Life of such Equipment Note.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C.
Section 102 et seq.
"Basic Pass Through Trust Agreement" means the Pass Through Trust Agreement
dated as of April 1, 1999 between the Company and the Pass Through Trustee, as
such agreement may be supplemented, amended or modified, but does not include
any Trust Supplement.
"Business Day" means any day, other than a Saturday, Sunday or other day on
which commercial banks are authorized or required by law to close in New York,
New York, Denver, Colorado, Wilmington, Delaware, Salt Lake City, Utah or
Chicago, Illinois.
"Certificateholder" means the Person in whose name a Certificate is
registered in the Register.
"Certificates" has the meaning set forth in the third recital to the Note
Purchase Agreement.
"Class" means the class of Certificates issued by each Pass Through Trust.
"Class A-1 Pass Through Trust" means the Atlas Air Pass Through Trust,
1999-1A-1.
"Class A-2 Pass Through Trust" means the Atlas Air Pass Through Trust,
1999-1A-2.
"Class B Pass Through Trust" means the Atlas Air Pass Through Trust,
1999-1B.
"Class C Pass Through Trust" means the Atlas Air Pass Through Trust,
1999-1C.
"Company" means Atlas Air, Inc., a Delaware corporation.
"Corporate Trust Office" with respect to any Pass Through Trustee or any
Loan Trustee, means the office of such trustee in the city at which at any
particular time its corporate trust business shall be principally administered.
"Cut-Off Date" means the earlier of (a) the day after the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
"Delivery Date" means the Business Day on which an Aircraft is delivered to
and accepted by the Company.
"Delivery Period Termination Date" means the earlier of (a) May 31, 2000
provided that, if a labor strike occurs at the Manufacturer on or prior to such
date, such date shall be extended by adding thereto the number of days that such
strike continued in effect and (b) the date on which Equipment Notes issued with
respect to all of the Aircraft (or Substitute Aircraft in lieu thereof) have
been purchased by the Pass Through Trustees in accordance with the Note Purchase
Agreement.
"Deposit Agreements" has the meaning set forth in the fifth recital to the
Note Purchase Agreement.
"Deposit Make-Whole Premium" means, with respect to the distribution of
unused Deposits to holders of any Class of Certificates, as of any date of
determination, an amount equal to the excess, if any, of (a) the present value
of the excess of (i) the scheduled payment of principal and interest to maturity
of the related series of Equipment Notes, assuming the maximum principal amount
thereof (the "Maximum Amount") minus the sum of (x) such
Class of Certificates' proportionate share (in the same proportion that the
amount of unused Deposits with respect to such Class of Certificates bears to
the unused Deposits with respect to all Classes of Certificates, disregarding
for this purpose unused Deposits attributable to any Non-Delivery Redemption
Amount) of the Par Redemption Amount and (y) the portion of the Non-Delivery
Redemption Amount attributable to such Class, were issued, on each remaining
Regular Distribution Date for such Class under the Assumed Amortization Schedule
over (ii) the scheduled payment of principal and interest to maturity of the
Equipment Notes actually acquired by the Pass Through Trustee for such Class on
each such Regular Distribution Date, such present value computed by discounting
such excess on a semiannual basis on each Regular Distribution Date (assuming a
360-day year of twelve 30-day months) using a discount rate equal to the
Adjusted Treasury Yield over (b) the amount of such unused Deposits to be (and
that have been) distributed to the holders of such Certificates minus the sum of
(x) such Class of Certificates' proportionate share of the Par Redemption Amount
and (y) the portion of the Non-Delivery Redemption Amount attributable to such
Class, plus accrued and unpaid interest on such net amount to but excluding such
date of determination from and including the preceding Regular Distribution Date
(or if such date of determination precedes the first Regular Distribution Date,
the Issuance Date).
"Depositary" means Credit Suisse First Boston, a banking institution
organized under the laws of Switzerland, acting through its New York Branch.
"Deposits" has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
"Equipment Notes" means and includes any equipment notes issued under any
Indenture in the form specified in Section 2.01 thereof (as such form may be
varied pursuant to the terms of such Indenture) and any Equipment Note issued
under any Indenture in exchange for or replacement of any other Equipment Note.
"Escrow Agent" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"Escrow Agreements" has the meaning set forth in the fifth recital to the
Note Purchase Agreement.
"FAA" means the Federal Aviation Administration of the United States.
"Final Withdrawal" with respect to each Escrow Agreement, has the meaning
set forth in Section 1.02 thereof.
"Financing Agreements" means, collectively, the Lease Financing Agreements
and the Owner Financing Agreements.
"Funding Date" has the meaning set forth in the Section 1(b) of the Note
Purchase Agreement.
"Government Entity" means (a) any federal, state, provincial or similar
government, and any body, board, department, commission, court, tribunal,
authority, agency or other instrumentality of any such government or otherwise
exercising any executive, legislative, judicial, administrative or regulatory
functions of such government or (b) any other government entity having
jurisdiction over any matter contemplated by the Operative Agreements or
relating to the observance or performance of the obligations of any of the
parties to the Operative Agreements.
"Guarantee Agreement" has the meaning set forth in the Intercreditor
Agreement.
"Guarantor" has the meaning set forth in the Intercreditor Agreement.
"H.15(519)" means the weekly statistical release designated as such, or any
successor publication, published by the Board of Governors of the Federal
Reserve System.
"Indentures" means, collectively, the Leased Aircraft Indentures and the
Owned Aircraft Indentures.
"Intercreditor Agreement" has the meaning set forth in the ninth recital to
the Note Purchase Agreement.
"Issuance Date" means the date of the original issuance of the
Certificates.
"Law" means (a) any constitution, treaty, statute, law, decree, regulation,
order, rule or directive of any Government Entity, and (b) any judicial or
administrative interpretation or application of, or decision under, any of the
foregoing.
"Lease" means a Lease Agreement substantially in the form of Exhibit A-2 to
the Note Purchase Agreement.
"Lease Financing Agreements" means, collectively, the Aircraft Purchase
Agreement Assignment, the Leased Aircraft Participation Agreement, the Lease,
the Leased Aircraft Indenture, the Equipment Notes issued thereunder and the
Trust Agreement relating to the financing of a Leased Aircraft. "Leased
Aircraft" means an Aircraft subject to a Lease.
"Leased Aircraft Indenture" means a Trust Indenture and Mortgage
substantially in the form of Exhibit A-3 to the Note Purchase Agreement.
"Leased Aircraft Participation Agreement" means a Participation Agreement
substantially in the form of Exhibit A-1 to the Note Purchase Agreement.
"Liquidity Facilities" has the meaning set forth in the ninth recital to
the Note Purchase Agreement.
"Liquidity Providers" has the meaning set forth in the ninth recital to the
Note Purchase Agreement.
"Loan Trustee" means the "Mortgagee" as defined in the Financing
Agreements.
"Mandatory Document Terms" means the terms set forth on Schedule V to the
Note Purchase Agreement.
"Mandatory Economic Terms" means the terms set forth on Schedule VI to the
Note Purchase Agreement.
"Manufacturer" means The Boeing Company, a Delaware corporation, solely in
its capacity as manufacturer of seller of the Aircraft.
"Non-Delivery Redemption Amount" means the aggregate amount of Deposits
relating to Aircraft that are or will not be delivered by the Manufacturer prior
to the Delivery Period Termination Date due to any reason not occasioned by the
Company's fault or negligence.
"Note Purchase Agreement" means the Note Purchase Agreement to which this
Annex A is attached.
"Notice of Purchase Withdrawal" with respect to each Deposit Agreement, has
the meaning set forth in Section 2.3 thereof.
"Operative Agreements" means, collectively, the Pass Through Trust
Agreements, the Escrow Agreements, the Deposit Agreements, the Liquidity
Facilities, the Guarantee Agreements, the Intercreditor Agreement, the Trust
Agreements, the Equipment Notes, the Certificates and the Financing Agreements.
"Owned Aircraft" means an Aircraft subject to an Owned Aircraft Indenture.
"Owned Aircraft Indenture" means a Trust Indenture and Mortgage
substantially in the form of Exhibit C-2 to the Note Purchase Agreement.
"Owned Aircraft Participation Agreement" means a Participation Agreement
substantially in the form of Exhibit C-1 to the Note Purchase Agreement.
"Owner Financing Agreements" means, collectively, the Owned Aircraft
Participation Agreement, the Owned Aircraft Indenture and the Equipment Notes
issued thereunder.
"Owner Participant" means, with respect to any Leased Aircraft, the Person
named as the Owner Participant in the Participation Agreement with respect to
such Leased Aircraft.
"Owner Trust" means with respect to any Leased Aircraft, the trust created
by the "Trust Agreement" referred to in the Leased Aircraft Indenture related
thereto.
"Owner Trustee" means with respect to any Leased Aircraft, the "Owner
Trustee" party to the "Trust Agreement" referred to in the Leased Aircraft
Indenture related thereto.
"Par Redemption Amount" means $10 million.
"Participation Agreements" means, collectively, the Leased Aircraft
Participation Agreements and the Owned Aircraft Participation Agreements.
"Pass Through Trust" has the meaning set forth in the third recital to the
Note Purchase Agreement.
"Pass Through Trust Agreement" means each of the four separate Trust
Supplements, together in each case with the Basic Pass Through Trust Agreement,
each dated as of the Issuance Date, by and between the Company and the Pass
Through Trustee.
"Pass Through Trustee" has the meaning set forth in the first paragraph of
the Note Purchase Agreement.
"Paying Agent" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"Person" means any individual, firm, partnership, joint venture, trust,
trustee, Government Entity, organization, association, corporation, government
agency, committee, department, authority and other body, corporate or
incorporate, whether having distinct legal status or not, or any member of any
of the same.
"Prospectus Supplement" means the Prospectus Supplement dated April 5, 1999
relating to the Certificates.
"Purchase Agreement" means the Purchase Agreement dated June 9, 1997
between the Company and the Manufacturer (including all exhibits thereto,
together with all letter agreements entered into that by their terms constitute
part of any such Purchase Agreement).
"Qualified Owner Participant" means any bank, trust company, insurance
company, financial institution or corporation (other than, without the Company's
consent, a commercial air carrier, a commercial aircraft operator, a freight
forwarder or Affiliate of any of the foregoing), in each case with a combined
capital and surplus or net worth of at least $50,000,000.
"Rating Agencies" means ▇▇▇▇▇'▇ Investors Service, Inc. and Standard &
Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Rating Agency Confirmation" means, with respect to any Financing Agreement
that has been modified in any material respect from the forms thereof attached
to the Note Purchase Agreement (other than modifications affecting only the
Owner Participant) or with respect to Substitute Aircraft, a written
confirmation from each Rating Agency that the use of such Financing Agreement
with such modifications or the substituting of such Substitute Aircraft for an
Aircraft, whichever of the foregoing shall in a particular case require
confirmation from such rating agencies, would 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.
"Register" means the register maintained pursuant to Sections 3.04 and 7.12
of the Basic Pass Through Trust Agreement with respect to each Pass Through
Trust.
"Regular Distribution Dates" shall mean January 2 and July 2 of each year,
commencing January 2, 2000.
"Remaining Weighted Average Life" means, on a given date with respect to
any Equipment Note, the number of days equal to the quotient obtained by
dividing (a) the sum of each of the products obtained by multiplying (i) the
amount of each then remaining scheduled payment of principal of such Equipment
Note by (ii) the number of days from and including such determination date to
but excluding the date on which such payment of principal is scheduled to be
made, by (b) the then outstanding principal amount of such Equipment Note.
"Section 1110" means 11 U.S.C. Section 1110 of the Bankruptcy Code or any
successor or analogous Section of the federal bankruptcy Law in effect from time
to time.
"Series A-1 Equipment Notes" means Equipment Notes issued under an
Indenture and designated as "Series A-1" thereunder.
"Series A-2 Equipment Notes" means Equipment Notes issued under an Owned
Aircraft Indenture and designated as "Series A-2" thereunder.
"Series B Equipment Notes" means Equipment Notes issued under an Indenture
and designated as "Series B" thereunder.
"Series C Equipment Notes" means Equipment Notes issued under an Indenture
and designated as "Series C" thereunder.
"Series D Equipment Notes" means Equipment Notes issued under an Owned
Aircraft Indenture and designated as "Series D" thereunder.
"Subordination Agent" has the meaning set forth in the first paragraph of
the Note Purchase Agreement.
"Substitute Aircraft" has the meaning set forth in Section 1(f) of the Note
Purchase Agreement.
"Taxes" means all license, recording, documentary, registration and other
similar fees and all taxes, levies, imposts, duties, charges, assessments or
withholdings of any nature whatsoever imposed by any Taxing Authority, together
with any penalties, additions to tax, fines or interest thereon or additions
thereto.
"Taxing Authority" means any federal, state or local government or other
taxing authority in the United States, any foreign government or any political
subdivision or taxing authority thereof, any international taxing authority or
any territory or possession of the United States or any taxing authority
thereof.
"Treasury Yield" means, at the date of determination, with respect to any
Equipment Note, the interest rate (expressed as a decimal and, in the case of
United States Treasury bills, converted to a bond equivalent yield) determined
to be the per annum rate equal to the semi-annual yield to maturity for United
States Treasury securities maturing on the Average Life Date of such Equipment
Note and trading in the public securities markets either as determined by
interpolation between the most recent weekly average yield to maturity for two
series of United States Treasury securities trading in the public securities
markets, (A) one maturing as close as possible to, but earlier than, the Average
Life Date of such Equipment Note and (B) the other maturing as close as possible
to, but later than, the Average Life Date of such Equipment Note, in each case
as published in the most recent H.15(519) or, if a weekly average yield to
maturity for United States Treasury securities maturing on the Average Life Date
of such Equipment Note is reported on the most recent H.15(519), such weekly
average yield to maturity as published in such H.15(519).
"Triggering Event" has the meaning assigned to such term in the
Intercreditor Agreement.
"Trust Agreement" means a Trust Agreement substantially in the form of
Exhibit A-5 to the Note Purchase Agreement.
"Trust Supplement" means an agreement supplemental to the Basic Pass
Through Trust Agreement pursuant to which (i) a separate trust is created for
the benefit of the holders of the Pass Through Certificates of a class, (ii) the
issuance of the Pass Through Certificates of such class representing fractional
undivided interests in such trust is authorized and (iii) the terms of the Pass
Through Certificates of such class are established.
"WTC" has the meaning set forth in the first paragraph of the Note Purchase
Agreement.
EXHIBIT A-1 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT PARTICIPATION AGREEMENT
EXHIBIT A-2 to
Note Purchase Agreement
FORM OF LEASE
EXHIBIT A-3 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT INDENTURE
EXHIBIT A-4 to
Note Purchase Agreement
FORM OF AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT
EXHIBIT A-5 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT TRUST AGREEMENT
EXHIBIT B to
Note Purchase Agreement
FORM OF DELIVERY NOTICE
[DATE]
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 Services
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention:
Re: Atlas Air, Inc.
Gentlemen:
Reference is made to the Note Purchase Agreement dated as of April 13, 1999
(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:
(i) Delivery of an Aircraft, and the consummation of the
financing therefor, will take place on _________, which is a Business
Day before the Cut-off Date.
(ii) Atlas will treat the Aircraft as a [Leased] [Owned] Aircraft
[in respect of which a Series A-2 Equipment Note will [not] be
issued].
(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-1 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 $[-------].
[(vii) The aggregate amount of Series A-2 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:
----------
1 Include for Leased Aircraft only.
EXHIBIT C-1 to
Note Purchase Agreement
FORM OF OWNED AIRCRAFT PARTICIPATION AGREEMENT
EXHIBIT C-2 to
Note Purchase Agreement
FORM OF OWNED AIRCRAFT INDENTURE