1
EXHIBIT 4.7
TRUST AGREEMENT
This Trust Agreement, dated as of April 22, 1999 (the "Trust
Agreement"), among Atlas Air, Inc., a Delaware corporation, as "Depositor",
Xxxxxxx Xxxxx, The First National Bank of Chicago, a national banking
association, and First Chicago Delaware Inc. a Delaware corporation, as
"Trustees." The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as Atlas Air
Capital III (the "Trust"), in which name the Trustees, or the Depositor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trust the sum of $10, which amount shall constitute the initial
trust estate. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor and the Trustees will enter into an amended
and restated Trust Agreement, satisfactory to each such party and substantially
in the form included as Exhibit 4.3 to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the preferred securities (the "Preferred Securities")
and common securities referred to therein. Prior to the execution and delivery
of such amended and restated Trust Agreement, the Trustees shall not have any
duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain, prior to
such execution and delivery, any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or
2
-2-
post-effective amendments to such 1933 Act Registration Statement (including the
prospectus and the exhibits contained therein), relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and certain other securities and (b) a Registration Statement on Form
8-A)(the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange (the "Exchange")
and execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on the Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws, as the Depositor, on behalf of the Trust, may deem necessary
or desirable and (iv) to negotiate the terms of and execute on behalf of the
Trust one or more Underwriting Agreements among the Trust, the Depositor and any
one or more underwriters relating to the offering of the Preferred Securities.
In the event that any filing referred to in clauses (i) through (iii) above is
required by the rules and regulations of the Commission, the Exchange or any
other national stock exchange or state securities or Blue Sky laws, to be
executed on behalf of the Trust by the Trustees, in their capacities as Trustees
of the Trust, the Trustees are hereby authorized and directed to join in any
such filing and to execute on behalf of the Trust any and all of the foregoing,
it being understood that The First National Bank of Chicago and First Chicago
Delaware Inc., in their capacities as Trustees of Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the Exchange or
any other national stock exchange or state securities or Blue Sky laws. In
connection with all of the foregoing, the Depositor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Xxxxxxx X.
Xxxxxxx and Xxxxxxx X. Xxxxx, and each of them, as his, her or its, as the case
may be, true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or in the Depositor's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement and to file the same, with all exhibits
thereto,
3
-3-
and other documents in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. A Trustee may resign upon thirty days' prior notice to the
Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee,
shall not have any of the powers or duties of the Trustees set forth herein
(except as may be required under the Business Trust Act) and shall be a Trustee
of the Trust for the sole purpose of satisfying the requirements of Section
3807(a) of the Business Trust Act.
8. The Trust may be dissolved and terminated before the
issuance of the Preferred Securities at the election of the Depositor.
9. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
4
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
ATLAS AIR, INC., as Depositor
By: /s/ Xxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President and Chief Financial Officer
Xxxxxxx Xxxxx, as Trustee
/s/ Xxxxxxx Xxxxx
----------------------------------------------
The First National Bank of Chicago, as Trustee
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
First Chicago Delaware Inc., as Trustee
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President