TRUST SUPPLEMENT No. 1999-1B
Dated as of April 13, 1999
between
WILMINGTON TRUST COMPANY
as Trustee,
and
ATLAS AIR INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of April 1, 1999
$111,910,000
Atlas Air Pass Through Trust 1999-1B
7.63% Atlas Air
Pass Through Certificates,
Series 1999-lB
This Trust Supplement No. 1999-1B (herein called the "TRUST SUPPLEMENT")
dated as of April 13, 1999 between Atlas Air, Inc., a Delaware corporation (the
"COMPANY"), and Wilmington Trust Company (the "TRUSTEE") to the Pass Through
Trust Agreement dated as of April 1, 1999, between the Company and the Trustee
(the "BASIC AGREEMENT").
W I T N E S S E T H:
WHEREAS, the Basic Agreement, unlimited as to the aggregate principal
amount of Certificates (unless otherwise specified herein, capitalized terms
used herein without definition having the respective meanings specified in the
Basic Agreement) which may be issued thereunder, has heretofore been executed
and delivered;
WHEREAS, the Company has obtained commitments from Boeing for the delivery
of certain Aircraft;
WHEREAS, the Company intends to finance the acquisition of each such
Aircraft either (i) through separate leveraged lease transactions, in which case
the Company will lease such Aircraft (collectively,
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the "LEASED AIRCRAFT"), or (ii) through separate secured loan transactions, in
which case the Company will own such Aircraft (collectively, the "OWNED
AIRCRAFT");
WHEREAS, in the case of each Leased Aircraft, each Owner Trustee, acting on
behalf of the corresponding Owner Participant, will issue pursuant to an
Indenture, on a non-recourse basis, Equipment Notes in order to finance a
portion of its purchase price of such Leased Aircraft;
WHEREAS, in the case of each Owned Aircraft, the Company will issue
pursuant to an Indenture, on a recourse basis, Equipment Notes to finance all or
a portion of the purchase price of such Owned Aircraft;
WHEREAS, the Trustee hereby declares the creation of this Atlas Air Pass
Through Trust 1999-1B (the "APPLICABLE TRUST") for the benefit of the Applicable
Certificateholders, and the initial Applicable Certificateholders as the
grantors of the Applicable Trust, by their respective acceptances of the
Applicable Certificates, join in the creation of the Applicable Trust with the
Trustee;
WHEREAS, all Certificates to be issued by the Applicable Trust will
evidence fractional undivided interests in the Applicable Trust and will convey
no rights, benefits or interests in respect of any property other than the Trust
Property, except for those Certificates to which an Escrow Receipt has been
affixed;
WHEREAS, the Escrow Agent, the Trustee and the Underwriters have
contemporaneously herewith entered into an Escrow Agreement with the Escrow
Paying Agent pursuant to which the Underwriters have delivered to the Escrow
Agent the proceeds from the sale of the Applicable Certificates and have
irrevocably instructed the Escrow Agent to withdraw and pay funds from such
proceeds upon request and proper certification by the Trustee to purchase
Equipment Notes as the Aircraft are delivered by Boeing under the Aircraft
Purchase Agreement from time to time prior to the Delivery Period Termination
Date;
WHEREAS, the Escrow Agent on behalf of the Applicable Certificateholders
has contemporaneously herewith entered into a Deposit Agreement with the
Depositary under which the Deposits referred to therein will be made and from
which it will withdraw funds to allow the Trustee to purchase Equipment Notes
from time to time prior to the Delivery Period Termination Date;
WHEREAS, pursuant to the terms and conditions of the Basic Agreement as
supplemented by this Trust Supplement (the "AGREEMENT") and the Note Purchase
Agreement, upon or shortly following delivery of an Aircraft, the Trustee on
behalf of the Applicable Trust, using funds withdrawn under the Escrow
Agreement, shall purchase one or more Equipment Notes having the same interest
rate as, and final maturity date not later than the Final Regular Distribution
Date of, the Applicable Certificates issued hereunder and shall hold such
Equipment Notes in trust for the benefit of the Applicable Certificateholders;
WHEREAS, all of the conditions and requirements necessary to make this
Trust Supplement, when duly executed and delivered, a valid, binding and legal
instrument in accordance with its terms and for the purposes herein expressed,
have been done, performed and fulfilled, and the execution and delivery of this
Trust Supplement in the form and with the terms hereof have been in all respects
duly authorized;
WHEREAS, this Trust Supplement is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and shall, to the extent applicable, be
governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it is agreed
between the Company and the Trustee as follows:
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ARTICLE I
THE CERTIFICATES
Section 1.01. THE CERTIFICATES. There is hereby created a series of
Certificates to be issued under the Agreement to be distinguished and known as
"7.63% Atlas Air Pass Through Certificates, Series 1999-lB" (hereinafter defined
as the "APPLICABLE CERTIFICATES"). Each Applicable Certificate represents a
fractional undivided interest in the Applicable Trust created hereby. The
Applicable Certificates shall be the only instruments evidencing a fractional
undivided interest in the Applicable Trust.
The terms and conditions applicable to the Applicable Certificates are as
follows:
(a) The aggregate principal amount of the Applicable Certificates that
shall be authenticated under the Agreement (except for Applicable Certificates
authenticated and delivered pursuant to Sections 3. 03, 3.04, 3.05 and 3.06 of
the Basic Agreement) is $111,910,000.
(b) The Regular Distribution Dates with respect to any payment of Scheduled
Payments means January 2 and July 2 of each year, commencing on January 2, 2000,
until payment of all of the Scheduled Payments to be made under the Equipment
Notes has been made.
(c) The Special Distribution Dates with respect to the Applicable
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to the Agreement.
(d) At the Escrow Agent's request under the Escrow Agreement, the Trustee
shall affix the corresponding Escrow Receipt to each Applicable Certificate. In
any event, any transfer or exchange of any Applicable Certificate shall also
effect a transfer or exchange of the related Escrow Receipt. Prior to the Final
Withdrawal Date, no transfer or exchange of any Applicable Certificate shall be
permitted unless the corresponding Escrow Receipt is attached thereto and also
is so transferred or exchanged. By acceptance of any Applicable Certificate to
which an Escrow Receipt is attached, each Holder of such an Applicable
Certificate acknowledges and accepts the restrictions on transfer of the Escrow
Receipt set forth herein and in the Escrow Agreement.
(e) (i) The Applicable Certificates shall be in the form attached hereto as
Exhibit A. Any Person acquiring or accepting an Applicable Certificate or an
interest therein will, by such acquisition or acceptance, be deemed to represent
and warrant to and for the benefit of, among other persons, each Owner
Participant, the Company, the Underwriters and the Pass Through Trustee that
either (i) the assets of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or of a
plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended
(the "CODE"), have not been used to purchase Applicable Certificates or an
interest therein or (ii) the purchase and holding of Applicable Certificates or
an interest therein is exempt from the prohibited transaction restrictions of
ERISA and the Code pursuant to one or more prohibited transaction statutory or
administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry Certificates and shall
be subject to the conditions set forth in the Letter of Representations between
the Company and the Clearing Agency attached hereto as Exhibit B.
(f) The Applicable Certificates are subject to the Intercreditor Agreement,
the Deposit Agreement and the Escrow Agreement.
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(g) The Applicable Certificates will have the benefit of the Liquidity
Facility.
(h) The Responsible Party is the Company.
(i) The date referred to in clause (i) of the definition of the term "PTC
Event of Default" in the Basic Agreement is the Final Maturity Date.
(j) The particular "sections of the Note Purchase Agreement", for purposes
of clause (3) of Section 7.07 of the Basic Agreement, are Section 8.1 (with
respect to Owned Aircraft) and Section 9.1 (with respect to Leased Aircraft) of
each Participation Agreement.
(k) The Equipment Notes to be acquired and held in the Applicable Trust,
and the related Aircraft and Note Documents, are described in the Note Purchase
Agreement.
ARTICLE II
DEFINITIONS
Section 2.01. DEFINITIONS. For all purposes of the Basic Agreement as
supplemented by this Trust Supplement, the following capitalized terms have the
following meanings (any term used herein which is defined in both this Trust
Supplement and the Basic Agreement shall have the meaning assigned thereto in
this Trust Supplement for purposes of the Basic Agreement as supplemented by
this Trust Supplement):
AGREEMENT: has the meaning specified in the recitals hereto.
AIRCRAFT: means each of the Aircraft or Substitute Aircraft in respect of
which a Participation Agreement is or is to be, as the case may be, entered into
in accordance with the Note Purchase Agreement.
AIRCRAFT PURCHASE AGREEMENT: has the meaning specified in the Note Purchase
Agreement.
APPLICABLE CERTIFICATE: has the meaning specified in Section 1.01 of this
Trust Supplement.
APPLICABLE CERTIFICATEHOLDER: means the Person in whose name an Applicable
Certificate is registered on the Register for the Applicable Certificates.
APPLICABLE DELIVERY DATE: has the meaning specified in Section 5.01(b) of
this Trust Supplement.
APPLICABLE PARTICIPATION AGREEMENT: has the meaning specified in Section
5.01(b) of this Trust Supplement. APPLICABLE TRUST: has the meaning specified in
the recitals hereto.
BASIC AGREEMENT: has the meaning specified in the first paragraph of this
Trust Supplement.
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BOEING: means The Boeing Company.
BUSINESS DAY: means any day other than a Saturday, a Sunday or a day on
which commercial banks are required or authorized to close in Denver, Colorado,
New York, New York, Salt Lake City, Utah or, so long as any Applicable
Certificate is Outstanding, the city and state in which the Trustee or any Loan
Trustee maintains its Corporate Trust Office or receives and disburses funds.
CLASS D CERTIFICATEHOLDER: has the meaning specified in Section 4.01(b)(ii)
of this Trust Supplement.
COMPANY: has the meaning specified in the first paragraph of this Trust
Supplement.
CUT-OFF DATE: means the earlier of (a) the Delivery Period Termination Date
and (b) the date on which a Triggering Event occurs.
DELIVERY NOTICE: has the meaning specified in the Note Purchase Agreement.
DELIVERY PERIOD TERMINATION DATE: means the earlier of (a) May 31, 2000
(PROVIDED that, if a labor strike occurs at Boeing prior to May 31, 2000 such
date shall be extended by adding thereto the number of days that such strike
continues in effect) or (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 Applicable Trust and the Other Trusts in accordance with
the Note Purchase Agreement.
DEPOSITS: has the meaning specified in the Deposit Agreement.
DEPOSIT AGREEMENT: means the Deposit Agreement dated as of April 13, 1999
relating to the Applicable Certificates between the Depositary and the Escrow
Agent, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with its terms.
DEPOSITARY: means Credit Suisse First Boston, a banking institution
organized under the laws of Switzerland, acting through its New York branch.
DISTRIBUTION DATE: means any Regular Distribution Date or Special
Distribution Date as the context requires.
ESCROW AGENT: means, First Security Bank, National Association, or any
replacement or successor therefor appointed in accordance with the Escrow
Agreement.
ESCROW AGREEMENT: means the Escrow and Paying Agent Agreement dated as of
April 13, 1999 relating to the Applicable Certificates, among the Escrow Agent,
the Escrow Paying Agent, the Trustee and the Underwriters, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
ESCROW PAYING AGENT: means the Person acting as paying agent under the
Escrow Agreement.
ESCROW RECEIPT: means the receipt substantially in the form annexed to the
Escrow Agreement representing a fractional undivided interest in the funds held
in escrow thereunder.
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FINAL MATURITY DATE: means July 2, 2016.
FINAL WITHDRAWAL: has the meaning specified in the Escrow Agreement.
FINAL WITHDRAWAL DATE: has the meaning specified in the Escrow Agreement.
FINAL WITHDRAWAL NOTICE: has the meaning specified in Section 5.02 of this
Trust Supplement.
INDENTURE: means each of the separate trust indentures and mortgages
relating to the Aircraft, each as specified or described in a Delivery Notice
delivered pursuant to the Note Purchase Agreement or the related Participation
Agreement, in each case as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
INTERCREDITOR AGREEMENT: means the Intercreditor Agreement dated as of
April 13, 1999, among the Trustee, the Other Trustees, the Liquidity Provider,
the Liquidity Providers relating to the Certificates issued under each of the
Other Agreements, and Wilmington Trust Company, as Subordination Agent and as
trustee thereunder, as amended, supplemented or otherwise modified from time to
time in accordance with its terms.
INVESTORS: means the Underwriters together with all subsequent beneficial
owners of the Applicable Certificates.
LEASE: means, with respect to each Leased Aircraft, the lease between an
Owner Trustee, as the lessor, and the Company, as the lessee, referred to in the
related Indenture, as such lease may be amended, supplemented or otherwise
modified in accordance with its terms.
LEASED AIRCRAFT: has the meaning specified in the third recital to this
Trust Supplement.
LEASED AIRCRAFT INDENTURE: has the meaning specified in the Note Purchase
Agreement.
LIQUIDITY FACILITY: means, initially, the Revolving Credit Agreement dated
as of April 13, 1999 relating to the Applicable Certificates, between the
Liquidity Provider and Wilmington Trust Company, as Subordination Agent, as
agent and trustee for the Applicable Trust, and, from and after the replacement
of such agreement pursuant to the Intercreditor Agreement, the replacement
liquidity facility therefor, in each case as amended, supplemented or otherwise
modified from time to time in accordance with their respective terms.
LIQUIDITY PROVIDER: means ABN AMRO Bank N.V., a banking institution
organized under the laws of the Netherlands, acting through its Chicago branch,
or any replacements or successors therefor appointed in accordance with the
Intercreditor Agreement.
NOTE DOCUMENTS: means the Equipment Notes with respect to the Applicable
Certificates and, with respect to any such Equipment Note, (i) the Indenture and
the Participation Agreement relating to such Equipment Note, and (ii) in the
case of any Equipment Note related to a Leased Aircraft, the Lease relating to
such Leased Aircraft.
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NOTE PURCHASE AGREEMENT: means the Note Purchase Agreement dated as of
April 13, 1999 among the Trustee, the Other Trustees, the Company, the Escrow
Agent, the Escrow Paying Agent and the Subordination Agent, providing for, among
other things, the purchase of Equipment Notes by the Trustee on behalf of the
Trust, as the same may be amended, supplemented or otherwise modified from time
to time, in accordance with its terms.
NOTICE OF PREPAYMENT WITHDRAWAL: has the meaning specified in the Deposit
Agreement.
NOTICE OF PURCHASE WITHDRAWAL: has the meaning specified in the Deposit
Agreement.
OTHER AGREEMENTS: means (i) the Basic Agreement as supplemented by Trust
Supplement No. 1999-1A-1 dated as of the date hereof relating to Atlas Air Pass
Through Trust 1999-1A-1; (ii) the Basic Agreement as supplemented by Trust
Supplement No. 1999-1A-2 dated as of the date hereof relating to Atlas Air Pass
Through Trust 1999-lA-2; (iii) the Basic Agreement as supplemented by Trust
Supplement No. 1999-lC dated as of the date hereof relating to Atlas Air Pass
Through Trust 1999-1C; and (iv) if Class D Certificates are issued, the Basic
Agreement as supplemented by Trust Supplement No. 1999-1D relating to Atlas Air
Pass Through Trust 1999-D.
OTHER TRUSTEES: means the trustees under the Other Agreements, and any
successor or other trustee appointed as provided therein.
OTHER TRUSTS: means the Atlas Air Pass Through Trust 1999-1A-1, the Atlas
Air Pass Through Trust 1999-lA-2 and the Atlas Air Pass Through Trust 1999-lC,
each created on the date hereof, and if Class D Certificates are issued, the
Atlas Air Pass Through Trust 1999-1D.
OWNED AIRCRAFT: has the meaning specified in the third recital to this
Trust Supplement.
OWNED AIRCRAFT INDENTURE: has the meaning specified in the Note Purchase
Agreement.
OWNER PARTICIPANT: with respect to any Equipment Note relating to a Leased
Aircraft, means the "Owner Participant" as referred to in the Indenture pursuant
to which such Equipment Note is issued and any permitted successor or assign of
such Owner Participant; and OWNER PARTICIPANTS at any time of determination
means all of the Owner Participants thus referred to in the Indentures.
OWNER TRUSTEE: with respect to any Equipment Note relating to a Leased
Aircraft, means the "Owner Trustee", as referred to in the Indenture pursuant to
which such Equipment Note is issued, not in its individual capacity but solely
as trustee; and OWNER TRUSTEES means all of the Owner Trustees party to any of
the Indentures.
OWNER TRUSTEE'S PURCHASE AGREEMENT: means, with respect to any Leased
Aircraft, the agreement between the Company and the relevant Owner Trustee
pursuant to which, inter alia, the Company assigns to the Owner Trustee certain
rights of the Company under the aircraft purchase agreement with respect to such
Leased Aircraft.
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PARTICIPATION AGREEMENT: means each Participation Agreement to be entered
into, or entered into (as the case may be), by the Trustee pursuant to the Note
Purchase Agreement, as the same may be amended, supplemented or otherwise
modified in accordance with its terms.
POOL BALANCE: means, as of any date, (i) the original aggregate face amount
of the Applicable Certificates less (ii) the aggregate amount of all payments
made in respect of such Applicable Certificates or in respect of Deposits
relating to the Applicable Trust other than payments made in respect of interest
or premium thereon or reimbursement of any costs or expenses incurred in
connection therewith. The Pool Balance as of any Distribution Date shall be
computed after giving effect to any special distribution with respect to unused
Deposits, payment of principal of the Equipment Notes or payment with respect to
other Trust Property and the distribution thereof to be made on that date.
POOL FACTOR: means, as of any Distribution Date, the quotient (rounded to
the seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the
original aggregate face amount of the Applicable Certificates. The Pool Factor
as of any Distribution Date shall be computed after giving effect to any special
distribution with respect to unused Deposits, payment of principal of the
Equipment Notes or payments with respect to other Trust Property and the
distribution thereof to be made on that date.
PREPAYMENT WITHDRAWAL CERTIFICATE: has the meaning specified in the Escrow
Agreement.
PROSPECTUS SUPPLEMENT: means the prospectus supplement dated April 5, 1999
relating to the offering of the Certificates.
SCHEDULED DELIVERY DATE: has the meaning specified in the Note Purchase
Agreement.
SPECIAL PAYMENT: means any payment (other than a Scheduled Payment) in
respect of, or any proceeds of, any Equipment Note, Trust Indenture Estate (as
defined in each Leased Aircraft Indenture) or Collateral (as defined in each
Owned Aircraft Indenture).
SPECIAL REDEMPTION PREMIUM: means the premium payable by the Company
pursuant to Section 4(a)(i) of the Note Purchase Agreement.
SUBSTITUTE AIRCRAFT: has the meaning specified in the Note Purchase
Agreement.
TRIGGERING EVENT: has the meaning assigned to such term in the
Intercreditor Agreement.
TRUST PROPERTY: means (i) subject to the Intercreditor Agreement, the
Equipment Notes held as the property of the Applicable Trust, all monies at any
time paid thereon and all monies due and to become due thereunder, (ii) funds
from time to time deposited in the Certificate Account and the Special Payments
Account and, subject to the Intercreditor Agreement, any proceeds from the sale
by the Trustee pursuant to Article VI of the Basic Agreement of any Equipment
Note and (iii) all rights of the Applicable Trust and the Trustee, on behalf of
the Applicable Trust, under the Intercreditor Agreement, the Escrow Agreement,
the Note Purchase Agreement and the Liquidity Facility, including, without
limitation, all rights to receive certain payments thereunder, and all monies
paid to the Trustee on behalf of the Applicable Trust pursuant to the
Intercreditor Agreement or the Liquidity Facility, PROVIDED that rights with
respect to the Deposits or under the Escrow Agree-
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ment, except for the right to direct withdrawals for the purchase of Equipment
Notes to be held herein, will not constitute Trust Property.
TRUST SUPPLEMENT: has the meaning specified in the first paragraph of this
trust supplement.
UNDERWRITERS: means, collectively, Xxxxxx Xxxxxxx & Co. Incorporated, BT
Alex. Xxxxx Incorporated, ING Baring Xxxxxx Xxxx, LLC and CIBC Xxxxxxxxxxx Corp.
UNDERWRITING AGREEMENT: means the Underwriting Agreement dated April 5,
1999 among the Underwriters and the Company, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
ARTICLE III
STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. ADDITIONS TO ARTICLE IV OF THE BASIC AGREEMENT. In addition
to the provisions of Article IV of the Basic Agreement, the following provisions
shall apply to the Applicable Trust:
(a) Upon the payment of Special Redemption Premium to the Trustee under the
Note Purchase Agreement, the Trustee, upon receipt thereof, shall immediately
deposit the aggregate amount of such Special Redemption Premium in the Special
Payments Account;
(b) The distribution of amounts of Special Redemption Premium as provided
for in Section 4.02(b) of the Basic Agreement shall be on the Special
Distribution Date with respect to such Special Payment or as soon thereafter as
the Trustee has confirmed receipt of the related Special Redemption Premium;
(c) In the event of the payment of a Special Redemption Premium by the
Company to the Trustee under the Note Purchase Agreement, the notice provided
for in Section 4.02(c) of the Basic Agreement shall be mailed, together with the
notice by the Escrow Paying Agent under Section 2.06 of the Escrow Agreement,
not less than 15 days prior to the Special Distribution Date for such amount,
which Special Distribution Date shall be the Final Withdrawal Date; and
(d) The last sentence of the first paragraph of Section 4.02(c) of the
Basic Agreement shall apply equally if the amount of Special Redemption Premium,
if any, has not been calculated at the time the Trustee mails notice of a
Special Payment.
Section 3.02. STATEMENTS TO APPLICABLE CERTIFICATEHOLDERS. (a) On each
Distribution Date, the Trustee will include with each distribution to Applicable
Certificateholders of a Scheduled Payment or Special Payment, as the case may
be, a statement setting forth the information provided below (in the case of a
Special Payment, reflecting in part the information provided by the Escrow
Paying Agent under the Escrow Agreement). Such statement shall set forth (per
$1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v) below)
the following information:
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(i) the aggregate amount of funds distributed on such Distribution Date
under the Agreement and under the Escrow Agreement, indicating the
amount allocable to each source;
(ii) the amount of such distribution under the Agreement allocable to
principal and the amount allocable to premium (including any premium
paid with respect to unused Deposits), if any;
(iii) the amount of such distribution under the Agreement allocable to
interest;
(iv) the amount of such distribution under the Escrow Agreement allocable
to interest;
(v) the amount of such distribution under the Escrow Agreement allocable
to unused Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name of a
Clearing Agency, on the Record Date prior to each Distribution Date, the Trustee
will request from such Clearing Agency a securities position listing setting
forth the names of all Clearing Agency Participants reflected on such Clearing
Agency's books as holding interests in the Applicable Certificates on such
Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each calendar year
but not later than the latest date permitted by law, the Trustee shall furnish
to each Person who at any time during such calendar year was an Applicable
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v)
above for such calendar year or, in the event such Person was an Applicable
Certificateholder of record during a portion of such calendar year, for such
portion of such year, and such other items as are readily available to the
Trustee and which an Applicable Certificateholder shall reasonably request as
necessary for the purpose of such Applicable Certificateholder's preparation of
its federal income tax returns. Such statement and such other items shall be
prepared on the basis of information supplied to the Trustee by the Clearing
Agency Participants and shall be delivered by the Trustee to such Clearing
Agency Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Applicable Certificates in the
manner described in Section 3.02(a) of this Trust Supplement.
(c) If the aggregate principal payments scheduled for January 2, 2000, on
the Equipment Notes held as Trust Property as of December 8, 1999, differs from
the amount thereof set forth for the Applicable Certificates on page S-45 of the
Prospectus Supplement, by no later than December 15, 1999 the Trustee shall mail
written notice of the actual amount of such scheduled payments to the Applicable
Certificateholders of record as of a date within 10 Business Days prior to the
date of mailing.
(d) Promptly following (i) the Delivery Period Termination Date, if there
has been any change in the information set forth in clauses (x), (y) and (z)
below from that set forth in page S-45 of the Prospectus Supplement, and (ii)
any early redemption or purchase of, or any default in the payment of principal
or interest in respect of, any of the Equipment Notes held in the Applicable
Trust, or any Final Withdrawal, the Trustee shall furnish to Applicable
Certificateholders of record on such date a statement setting forth (x) the
expected Pool Balances for each subsequent Regular Distribution Date following
the Delivery Period Termination Date, (y) the
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related Pool Factors for such Regular Distribution Dates and (z) the expected
principal distribution schedule of the Equipment Notes, in the aggregate, held
as Trust Property at the date of such notice. With respect to the Applicable
Certificates registered in the name of a Clearing Agency, on the Delivery Period
Termination Date, the Trustee will request from such Clearing Agency a
securities position listing setting forth the names of all Clearing Agency
Participants reflected on such Clearing Agency's books as holding interests in
the Applicable Certificates on such date. The Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Applicable Certificates.
(e) This Section 3.02 supersedes and replaces Section 4.03 of the Basic
Agreement, with respect to the Applicable Trust.
ARTICLE IV
DEFAULT
Section 4.01. PURCHASE RIGHTS OF CERTIFICATEHOLDERS. (a) At any time after
the occurrence and during the continuance of a Triggering Event, each Applicable
Certificateholder shall have the right (which shall not expire upon any purchase
of the Class A-2 Certificates pursuant to the Class A-1 Trust Agreement or any
purchase of the Class A-1 Certificates pursuant to the Class A-2 Trust
Agreement) to purchase, for the purchase price set forth in the Class A-1 Trust
Agreement and the Class A-2 Trust Agreement, respectively, all, but not less
than all, of the Class A-1 Certificates and the Class A-2 Certificates upon ten
days' written notice to the Class A-1 Trustee, the Class A-2 Trustee and each
other Applicable Certificateholder, provided that (i) if prior to the end of
such ten-day period any other Applicable Certificateholder notifies such
purchasing Applicable Certificateholder that such other Applicable
Certificateholder wants to participate in such purchase, then such other
Applicable Certificateholder may join with the purchasing Applicable
Certificateholder to purchase all, but not less than all, of the Class A-1
Certificates and the Class A-2 Certificates pro rata based on the Fractional
Undivided Interest in the Applicable Trust held by each such Applicable
Certificateholder and (ii) if prior to the end of such ten-day period any other
Applicable Certificateholder fails to notify the purchasing Applicable
Certificateholder of such other Applicable Certificateholder's desire to
participate in such a purchase, then such other Applicable Certificateholder
shall lose its right to purchase the Class A-1 Certificates and the Class A-2
Certificates pursuant to this Seciton 4.01(a).
(b) By acceptance of its Applicable Certificate, each Applicable
Certificateholder agrees that at any time after the occurrence and during the
continuation of a Triggering Event,
(i) each Class C Certificateholder shall have the right (which shall
not expire upon any purchase of the Class A-2 Certificates pursuant to the
Class A-1 Trust Agreement, any purchase of the Class A-1 Certificates
pursuant to the Class A-2 Trust Agreement or any purchase of the Class A-1
and the Class A-2 Certificates pursuant to clause (a) above) to purchase
all, but not less than all, of the Applicable Certificates, the Class A-1
Certificates and the A-2 Certificates upon ten days' written notice to the
Trustee, the Class A-1 Trustee and the Class A-2 Trustee and each other
Class C Certificateholder, PROVIDED that (A) if prior to the end of such
ten-day period any other Class C Certificateholder notifies such purchasing
Class C Certificateholder that such other Class C Certificateholder wants
to participate in such purchase, then such other Class C Certificateholder
may join with the purchasing Class C Certificateholder to purchase all, but
not less than all, of the Applicable Certificates, the Class A-1
Certificates and the Class A-2 Certificates pro rata based on the
Fractional Undivided In-
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terest in the Class C Trust held by each such Class C Certificateholder and
(B) if prior to the end of such ten-day period any other Class C
Certificateholder fails to notify the purchasing Class C Certificateholder
of such other Class C Certificateholder's desire to participate in such a
purchase, then such other Class C Certificateholder shall lose its right to
purchase the Applicable Certificates, the Class A-1 Certificates and the
Class A-2 Certificates pursuant to this Section 4.01(b); and
(ii) each holder of a Class D Certificate (a "CLASS D
CERTIFICATEHOLDER") shall have the right (which shall not expire upon any
purchase of the Class A-2 Certificates pursuant to the Class A-1 Trust
Agreement, any purchase of the Class A-1 Certificates pursuant to the Class
A-2 Trust Agreement, any purchase of the Class A-1 and Class A-2
Certificates pursuant to clause (a) above or any purchase of the Applicable
Certificates pursuant to clause (b)(i) above) to purchase all, but not less
than all, of the Applicable Certificates, the Class A-1 Certificates, the
Class A-2 Certificates and the Class C Certificates upon ten days' written
notice to the Trustee, the Class A-1 Trustee, the Class A-2 Trustee, the
Class C Trustee and each other Class D Certificateholder, PROVIDED that (A)
if prior to the end of such ten-day period any other Class D
Certificateholder notifies such purchasing Class D Certificateholder that
such other Class D Certificateholder wants to participate in such purchase,
then such other Class D Certificateholder may join with the purchasing
Class D Certificateholder to purchase all, but not less than all, of the
Applicable Certificates, the Class A-1 Certificates, the Class A-2
Certificates and the Class C Certificates pro rata based on the Fractional
Undivided Interest in the Class D Trust held by each such Class D
Certificateholder and (B) if prior to the end of such ten-day period any
other Class D Certificateholder fails to notify the purchasing Class D
Certificateholder of such other Class D Certificateholder's desire to
participate in such a purchase, then such other Class D Certificateholder
shall lose its right to purchase the Applicable Certificates, the Class A-1
Certificates, the Class A-2 Certificates and the Class C Certificates
pursuant to this Section 4.01(b).
The purchase price with respect to the Applicable Certificates shall be
equal to the Pool Balance of the Applicable Certificates, together with accrued
and unpaid interest thereon to the date of such purchase, without premium, but
including any other amounts then due and payable to the Applicable
Certificateholders under the Agreement, the Intercreditor Agreement, the Escrow
Agreement or any Note Document or on or in respect of the Applicable
Certificates; PROVIDED, HOWEVER, that (x) if such purchase occurs after a record
date specified in Section 2.03 of the Escrow Agreement relating to the
distribution of unused Deposits and/or accrued and unpaid interest on Deposits
and prior to or on the related distribution date thereunder, such purchase price
shall be reduced by the aggregate amount of unused Deposits and/or interest to
be distributed under the Escrow Agreement (which deducted amounts shall remain
distributable to, and may be retained by, the Applicable Certificateholder as of
such record date) and (y) if such purchase occurs after a Record Date and prior
to or on the related Distribution Date, such purchase price shall be reduced by
the amount to be distributed under this Agreement on the related Distribution
Date (which deducted amounts shall remain distributable to, and may be retained
by, the Applicable Certificateholder as of such Record Date); provided further
that no such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the
Agreement and the Other Agreements, the Applicable Certificates, the Class A-1
Certificates, the Class A-2 Certificates and the Class C Certificates which are
senior to the securities held by such purchaser(s). Each payment of the purchase
price of the Applicable Certificates referred to in the first sentence hereof
shall be made to an account or accounts designated by the Trustee and each such
purchase shall be subject to the terms of this Section 4.01(b). Each Applicable
Certificateholder agrees by its acceptance of its Applicable Certificate that
(at any time after the occurrence and during the continuation of a Triggering
Event) it will, upon payment from such Class C Certificateholder(s) or Class D
Certificateholder(s), as the case may be, of the purchase price set forth in the
first sentence of this paragraph, forthwith sell, assign, transfer and convey to
the purchaser(s) thereof (without recourse, representation or warranty of any
kind except for its own acts), all of the right, title, interest and obligation
of
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such Applicable Certificateholder in the Agreement, the Escrow Agreement, the
Deposit Agreement, the Intercreditor Agreement, the Liquidity Facility, the Note
Purchase Agreement, the Note Documents and all Applicable Certificates and
Escrow Receipts held by such Applicable Certificateholder (subject to clauses
(x) and (y) in the first sentence of this paragraph and excluding all right,
title and interest under any of the foregoing to the extent such right, title or
interest is with respect to an obligation not then due and payable as respects
any action or inaction or state of affairs occurring prior to such sale) and the
purchaser shall assume all of such Applicable Certificateholder's obligations
under the Agreement, the Escrow Agreement, the Deposit Agreement, the
Intercreditor Agreement, the Liquidity Facility, the Note Purchase Agreement,
the Note Documents and all such Applicable Certificates and Escrow Receipts. The
Applicable Certificates will be deemed to be purchased on the date payment of
the purchase price is made notwithstanding the failure of the Applicable
Certificateholders to deliver any Applicable Certificates and, upon such a
purchase, (I) the only rights of the Applicable Certificateholders will be to
deliver the Applicable Certificates to the purchaser(s) and receive the purchase
price for such Applicable Certificates and (II) if the purchaser(s) shall so
request, such Applicable Certificateholder will comply with all the provisions
of Section 3.04 of the Basic Agreement to enable new Applicable Certificates to
be issued to the purchaser in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new Applicable
Certificates shall be borne by the purchaser thereof.
As used in this Section 4.01 and elsewhere in this Trust Supplement, the
terms "Class A-1 Certificate", "Class A-1 Certificateholder", "Class A-1 Trust",
"Class A-1 Trustee", "Class A-2 Certificate", "Class A-2 Certificateholder",
"Class A-2 Trust", "Class A-2 Trustee", "Class C Certificate", "Class C
Certificateholder", "Class C Trust", "Class C Trustee", "Class D Certificate"
and "Class D Trust", shall have the respective meanings assigned to such terms
in the Intercreditor Agreement.
(c) This Section 4.01 supersedes and replaces Section 6.01(b) of the Basic
Agreement, with respect to the Applicable Trust.
ARTICLE V
THE TRUSTEE
Section 5.01. DELIVERY OF DOCUMENTS; DELIVERY DATES. (a) The Trustee is
hereby directed (i) to execute and deliver the Intercreditor Agreement, the
Escrow Agreement and the Note Purchase Agreement on or prior to the Issuance
Date, each in the form delivered to the Trustee by the Company, and (ii) subject
to the respective terms thereof, to perform its obligations thereunder. Upon
request of the Company and the satisfaction or waiver of the closing conditions
specified in the Underwriting Agreement, the Trustee shall execute, deliver,
authenticate, issue and sell Applicable Certificates in authorized denominations
equaling in the aggregate the amount set forth, with respect to the Applicable
Trust, in Schedule I to the Underwriting Agreement evidencing the entire
ownership interest in the Applicable Trust, which amount equals the maximum
aggregate principal amount of Equipment Notes which may be purchased by the
Trustee pursuant to the Note Purchase Agreement. Except as provided in Sections
3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, the Trustee shall not execute,
authenticate or deliver Applicable Certificates in excess of the aggregate
amount specified in this paragraph. The provisions of this Section 5.01(a)
supersede and replace the first sentence of Section 3.02(a) of the Basic
Agreement, with respect to the Applicable Trust.
(b) On or after the Issuance Date, the Company may deliver from time to
time to the Trustee a Delivery Notice relating to one or more Equipment Notes.
After receipt of a Delivery Notice and in any case no later than one Business
Day prior to a Scheduled Delivery Date as to which such Delivery Notice relates
(the
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"APPLICABLE DELIVERY DATE"), the Trustee shall (as and when specified in
the Delivery Notice) instruct the Escrow Agent to provide a Notice of Purchase
Withdrawal to the Depositary requesting (A) the withdrawal of one or more
Deposits on the Applicable Delivery Date in accordance with and to the extent
permitted by the terms of the Escrow Agreement and the Deposit Agreement and (B)
the payment of all, or a portion, of such Deposit or Deposits in an amount equal
in the aggregate to the purchase price of such Equipment Notes to or on behalf
of the Owner Trustee or the Company, as the case may be, issuing such Equipment
Notes, all as shall be described in the Delivery Notice. The Trustee shall (as
and when specified in such Delivery Notice), subject to the conditions set forth
in Section 2 of the Note Purchase Agreement, enter into and perform its
obligations under the Participation Agreement specified in such Delivery Notice
(the "APPLICABLE PARTICIPATION AGREEMENT") and cause such certificates,
documents and legal opinions relating to the Trustee to be duly delivered as
required by the Applicable Participation Agreement. If at any time prior to the
Applicable Delivery Date, the Trustee receives a notice of postponement pursuant
to Section 1(e) or 1(f) of the Note Purchase Agreement, then the Trustee shall
give the Depositary (with a copy to the Escrow Agent) a notice of cancellation
of such Notice of Purchase Withdrawal relating to such Deposit or Deposits on
such Applicable Delivery Date. Upon satisfaction of the conditions specified in
the Note Purchase Agreement and the Applicable Participation Agreement, the
Trustee shall purchase the applicable Equipment Notes with the proceeds of the
withdrawals of one or more Deposits made on the Applicable Delivery Date in
accordance with the terms of the Deposit Agreement and the Escrow Agreement. The
purchase price of such Equipment Notes shall equal the principal amount of such
Equipment Notes. Amounts withdrawn from such Deposit or Deposits in excess of
the purchase price of the Equipment Notes or to the extent not applied on the
Applicable Delivery Date to the purchase price of the Equipment Notes, shall be
re-deposited by the Trustee with the Depositary on the Applicable Delivery Date
in accordance with the terms of the Deposit Agreement. The provisions of this
Section 5.01(b) supersede and replace the provisions of Section 2.02 of the
Basic Agreement, with respect to the Applicable Trust, and all provisions of the
Basic Agreement relating to Postponed Notes and Section 2.02 of the Basic
Agreement shall not apply to the Applicable Trust.
(c) The Trustee acknowledges its acceptance of all right, title and
interest in and to the Trust Property to be acquired pursuant to Section 5.01(b)
of this Trust Supplement, the Note Purchase Agreement and each Applicable
Participation Agreement, and declares that it holds and will hold such right,
title and interest for the benefit of all present and future Applicable
Certificateholders, upon the trusts set forth in this Agreement. By its
acceptance of an Applicable Certificate, each initial Applicable
Certificateholder, as a grantor of the Applicable Trust, joins with the Trustee
in the creation of the Applicable Trust. The provisions of this Section 5.01(c)
supersede and replace the provisions of Section 2.03 of the Basic Agreement,
with respect to the Applicable Trust.
Section 5.02. WITHDRAWAL OF DEPOSITS. (a) If the Company shall receive
written notice from Boeing that the delivery date of any Aircraft will be
delayed beyond the Delivery Period Termination Date, the Company may deliver to
the Trustee written notice to such effect and requesting that the Trustee
deliver to the Escrow Agent a Prepayment Withdrawal Certificate pursuant to the
Escrow Agreement directing the Escrow Agent to provide a Notice of Prepayment
Withdrawal to the Depositary requesting the withdrawal of the Deposits relating
to Equipment Notes in respect of such Aircraft in accordance with and to the
extent permitted by the terms of the Escrow Agreement and the Deposit Agreement.
(b) If any Deposits remain outstanding on the Business Day next succeeding
the Cut-off Date, the Trustee shall (i) give the Escrow Agent notice that the
Trustee's obligation to purchase Equipment Notes under the Note Purchase
Agreement has terminated and instruct the Escrow Agent to provide a notice of
Final Withdrawal to the Depositary substantially in the form of Exhibit B to the
Deposit Agreement (the "FINAL WITHDRAWAL NOTICE") and (ii) shall make demand
upon the Company pursuant to the Note Purchase
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Agreement for an amount equal to the Deposit Make Whole Amount, if any, such
payment to be made on the Final Withdrawal Date.
Section 5.03. THE TRUSTEE. (a) Subject to Section 5.04 of this Trust
Supplement and Section 7.15 of the Basic Agreement, the Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement, the Note Purchase
Agreement or the Escrow Agreement or the due execution hereof or thereof by the
Company or the other parties thereto (other than the Trustee), or for or in
respect of the recitals and statements contained herein or therein, all of which
recitals and statements are made solely by the Company, except that the Trustee
hereby represents and warrants that each of this Trust Supplement, the Basic
Agreement, each Applicable Certificate, the Intercreditor Agreement, the Note
Purchase Agreement and the Escrow Agreement has been executed and delivered by
one of its officers who is duly authorized to execute and deliver such document
on its behalf.
(b) Except as herein otherwise provided and except during the continuance
of an Event of Default in respect of the Applicable Trust created hereby, no
duties, responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Trust Supplement other than as set
forth in the Agreement, and this Trust Supplement is executed and accepted on
behalf of the Trustee, subject to all the terms and conditions set forth in the
Agreement, as fully to all intents as if the same were herein set forth at
length.
Section 5.04. REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE. The Trustee
hereby represents and warrants that:
(a) the Trustee has full power, authority and legal right to execute,
deliver and perform this Trust Supplement, the Intercreditor Agreement, the
Escrow Agreement, the Note Purchase Agreement and the Note Documents to which it
is or is to become a party and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Supplement, the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement and
the Note Documents to which it is or is to become a party;
(b) the execution, delivery and performance by the Trustee of this Trust
Supplement, the Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement and the Note Documents to which it is or is to become a party (i) will
not violate any provision of any United States federal law or the law of the
state of the United States where it is located governing the banking and trust
powers of the Trustee or any order, writ, judgment, or decree of any court,
arbitrator or governmental authority applicable to the Trustee or any of its
assets, (ii) will not violate any provision of the articles of association or
by-laws of the Trustee, and (iii) will not violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of any lien on any properties included in the
Trust Property pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation, default
or lien could reasonably be expected to have an adverse effect on the Trustee's
performance or ability to perform its duties hereunder or thereunder or on the
transactions contemplated herein or therein;
(c) the execution, delivery and performance by the Trustee of this Trust
Supplement, the Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement and the Note Documents to which it is or is to become a party will not
require the authorization, consent, or approval of, the giving of notice to, the
filing or registration with, or the taking of any other action in respect of,
any governmental authority or agency of the United States or the state of the
United States where it is located regulating the banking and corporate trust
activities of the Trustee; and
(d) this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the Note Purchase Agreement and the Note Documents to which it is or
is to become a party have been, or will be, as applica-
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ble, duly executed and delivered by the Trustee and constitute, or will
constitute, as applicable, the legal, valid and binding agreements of the
Trustee, enforceable against it in accordance with their respective terms;
PROVIDED, HOWEVER, that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and (ii) general principles of equity.
Section 5.05. TRUSTEE LIENS. The Trustee in its individual capacity agrees,
in addition to the agreements contained in Section 7.17 of the Basic Agreement,
that it will at its own cost and expense promptly take any action as may be
necessary to duly discharge and satisfy in full any Trustee's Liens on or with
respect to the Trust Property which is attributable to the Trustee in its
individual capacity and which is unrelated to the transactions contemplated by
the Intercreditor Agreement or the Note Purchase Agreement.
ARTICLE VI
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section 6.01. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Without limitation of Section 9.01 of the Basic Agreement,
under the terms of, and subject to the limitations contained in, Section 9.01 of
the Basic Agreement, the Company may (but will not be required to), and the
Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the Company's
request, at any time and from time to time, (i) enter into one or more
agreements supplemental to the Escrow Agreement, the Note Purchase Agreement or
the Deposit Agreement, for any of the purposes set forth in clauses (a) through
(i) of such Section 9.01, and (without limitation of the foregoing or Section
9.01 of the Basic Agreement) clauses (b) and (c) of such Section 9.01 shall also
be deemed to include the Company's obligations under (in the case of clause
(b)), and the Company's rights and powers conferred by (in the case of clause
(c)), the Note Purchase Agreement and references in clauses (d), (f) and (g) of
such Section 9.01 to "any Intercreditor Agreement or any Liquidity Facility"
shall also be deemed to refer to "the Intercreditor Agreement, the Liquidity
Facility, the Escrow Agreement, the Note Purchase Agreement or the Deposit
Agreement" and (ii) enter into one or more agreements supplemental to the Basic
Agreement to provide for the formation of a Class D Trust, the issuance of Class
D Certificates, the purchase by the Class D Trust of Equipment Notes and other
matters incidental thereto or otherwise contemplated by Section 2.01(b) of the
Basic Agreement.
Section 6.02. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Without limitation of Section 9.02 of the Basic Agreement,
the provisions of Section 9.02 of the Basic Agreement shall apply to agreements
or amendments for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement or the Note Purchase Agreement or modifying in any manner the rights
and obligations of the Applicable Certificateholders under the Escrow Agreement,
the Deposit Agreement or the Note Purchase Agreement; provided that the
provisions of Section 9.02(a) of the Basic Agreement shall be deemed to include
reductions in any manner of, or delay in the timing of, any receipt by the
Applicable Certificateholders of payments upon the Deposits.
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ARTICLE VII
TERMINATION OF TRUST
Section 7.01. TERMINATION OF THE APPLICABLE TRUST. (a) The respective
obligations and responsibilities of the Company and the Trustee with respect to
the Applicable Trust shall terminate upon distribution to all Applicable
Certificateholders and the Trustee of all amounts required to be distributed to
them pursuant to this Agreement and the disposition of all property held as part
of the Trust Property; PROVIDED, HOWEVER, that in no event shall the Applicable
Trust continue beyond one hundred ten (110) years following the date of the
execution of this Trust Supplement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. BASIC AGREEMENT RATIFIED. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument. All replacements of provisions of, and other modifications of the
Basic Agreement set forth in this Trust Supplement are solely with respect to
the Applicable Trust.
SECTION 8.02. GOVERNING LAW. THIS TRUST SUPPLEMENT AND THE APPLICABLE
CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
Section 8.03. EXECUTION IN COUNTERPARTS. This Trust Supplement may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
Section 8.04. INTENTION OF PARTIES. The parties hereto intend that the
Applicable Trust be classified for U.S. federal income tax purposes as a grantor
trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended, and not as a trust or association taxable as a corporation or
as a partnership. Each Applicable Certificateholder and Investor, by its
acceptance of its Applicable Certificate or a beneficial interest therein,
agrees to treat the Applicable Trust as a grantor trust for all U.S. federal,
state and local income tax purposes. The powers granted and obligations
undertaken pursuant to the Agreement shall be so construed so as to further such
intent.
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IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust
Supplement to be duly executed by their respective representatives thereto duly
authorized, as of the day and year first written above.
ATLAS AIR, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President,
Treasurer and Director
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
FORM OF CERTIFICATE
Certificate
No._____
[Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
ATLAS AIR PASS THROUGH TRUST 1999-lB
% Atlas Air Pass Through Certificate, Series 0000-xX
Xxxxxxxx Date: , 1999
Final Expected Distribution Date:
Evidencing A Fractional Undivided Interest In The
Atlas Air Pass Through Trust 1999-lB, The
Property Of Which Shall Include Certain Equipment Notes
Each Secured By An Aircraft Leased To Or Owned By
Atlas Air, Inc.
______________Fractional Undivided Interest
representing % of the Trust per $1,000 face amount
THIS CERTIFIES THAT _____________________, for value received, is the
registered owner of a $_________ (______ dollars) Fractional Undivided interest
in the Atlas Air Pass Through Trust 1999-1B (the "TRUST") created by Wilmington
Trust Company, as trustee (the "Trustee"), pursuant to a Pass Through Trust
Agreement, dated as of April __, 1999 (the "BASIC AGREEMENT"), between the
Trustee and Atlas Air, Inc., a Delaware corporation (the "Company"), as
supplemented by Trust Supplement No. 1999-1B thereto, dated as of April __, 1999
(the "Trust Supplement" and, together with the Basic Agreement, the
"AGREEMENT"), between the Trustee and the Company, a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Agreement. This Certificate is one of the duly authorized
Certificates designated as " % Atlas Air Pass Through Certificates, Series
1999-lB" (herein called the "CERTIFICATES").
----------
* This legend to appear on Book-Entry Certificates to be deposited with the
Depository Trust Company.
-2-
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement. By virtue of its acceptance hereof, the holder of
this Certificate (the "CERTIFICATEHOLDER" and, together with all other holders
of Certificates issued by the Trust, the "CERTIFICATEHOLDERS") assents to and
agrees to be bound by the provisions of the Agreement and the Intercreditor
Agreement. The property of the Trust includes certain Equipment Notes and all
rights of the Trust to receive payments under the Intercreditor Agreement and
the Liquidity Facility (the "TRUST PROPERTY"). Each issue of the Equipment Notes
is secured by, among other things, a security interest in an Aircraft leased to
or owned by the Company.
The Certificates represent Fractional Undivided Interests in the Trust and
the Trust Property and have no rights, benefits or interest in respect of any
other separate trust established pursuant to the terms of the Basic Agreement
for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreement, from funds then available to the Trustee, there will be
distributed on each January 2 and July 2 (a "REGULAR DISTRIBUTION DATE")
commencing January 2, 2000, to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Regular
Distribution Date, an amount in respect of the Scheduled Payments on the
Equipment Notes due on such Regular Distribution Date, the receipt of which has
been confirmed by the Trustee, equal to the product of the percentage interest
in the Trust evidenced by this Certificate and an amount equal to the sum of
such Scheduled Payments. Subject to and in accordance with the terms of the
Agreement and the Intercreditor Agreement, in the event that Special Payments on
the Equipment Notes are received by the Trustee, from funds then available to
the Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Certificate is registered at the close of
business on the 15th day preceding the Special Distribution Date, an amount in
respect of such Special Payments on the Equipment Notes, the receipt of which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to the
sum of such Special Payments so received. If a Regular Distribution Date or
Special Distribution Date is not a Business Day, distribution shall be made on
the immediately following Business Day with the same force and effect as if made
on such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee shall mail notice of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by check
mailed to the Person entitled thereto, without presentation or surrender of this
Certificate or the making of any notation hereon, except that with respect to
Certificates registered on the Record Date in the name of a Clearing Agency (or
its nominee), such distribution shall be made by wire transfer. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the Trustee
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency of the Trustee specified in such
notice.
The Certificates do not represent a direct obligation of, or an obligation
guaranteed by, or an interest in, the Company or the Trustee or any affiliate
thereof. The Certificates are limited in right of payment, all as more
specifically set forth on the face hereof and in the Agreement. All payments or
distributions made to Certificateholders under the Agreement shall be made only
from the Trust Property and only to the extent that the Trustee shall have
sufficient income or proceeds from the Trust Property to make such payments in
accordance with the terms of the Agreement. Each Certificateholder of this
Certificate, by its acceptance hereof, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal busi-
-3-
ness hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any time
by the Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholders and upon all future Certificateholders of this Certificate
and of any Certificate issued upon the transfer hereof or in exchange hereof or
in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Register upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar, duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar, duly executed by
the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in the
Trust will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of $1,000 Fractional Undivided Interest and
integral multiples thereof except that one Certificate may be issued in a
different denomination. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee shall require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
Each Certificateholder and Investor, by its acceptance of this Certificate
or a beneficial interest herein, agrees to treat the Trust as a grantor trust
for all U.S. federal, state and local income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or the Registrar
may treat the person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Trustee, the Registrar, nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the Trust
created thereby shall terminate upon the distribution to Certificateholders of
all amounts required to be distributed to them pursuant to the Agreement and the
disposition of all property held as part of the Trust Property.
Any Person acquiring or accepting this Certificate or an interest herein
will, by such acquisition or acceptance, be deemed to have represented and
warranted that either: (i) the assets of an employee benefit plan subject to
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or of a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "CODE"), have not been used to purchase this Certificate
or an interest herein or (ii) the purchase and holding of this Certificate or an
in-
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terest herein are exempt from the prohibited transaction restrictions of ERISA
and the Code pursuant to one or more prohibited transaction statutory or
administrative exemptions.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Unless the certificate of authentication hereon has been executed by the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
ATLAS AIR PASS THROUGH TRUST
1999-1B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Trustee
By:
--------------------------------
Name:
Title:
FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Trustee
By:
--------------------------------
Name:
Title:
EXHIBIT B
DTC Letter of Representations
