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Post-Effective Amendment No. 2 (No. 333-71833)
Registration (No. 333-77005)
As filed with the Securities and Exchange Commission on May 7, 1999
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
Atlas Air Capital I
Atlas Air Capital II
Atlas Air, Inc. Atlas Air Capital III
(Exact name of registrant
(Exact name of registrant as as specified in its Trust
specified in its charter) Agreement)
Delaware Delaware
(State or other (State or other
jurisdiction of jurisdiction of
incorporation or incorporation or
organization of each organization of each
registrant) registrant)
4731 6719
(Primary Standard (Primary Standard
Industrial Classification Industrial Classification
Code Number) Code Number)
84-1207329 Each to be applied for
(I.R.S. Employer (I.R.S. Employer
Identification Number) Identification No.)
c/o Atlas Air, Inc.
538 Commons Drive 538 Commons Drive
Golden, Colorado 80401 Golden, Colorado 80401
(303) 526-5050 (303) 526-5050
(Address, including Zip (Address, including Zip
Code, and Telephone Number, Code, and Telephone Number,
including Area Code, of including Area Code, of
Registrant's Principal Registrant's Principal
Executive Offices) Executive Offices)
Richard H. Shuyler
Executive Vice President -- Strategic Planning
and Treasurer
Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
(303) 526-5050
(Name, Address, including Zip Code, and Telephone Number, including
Area Code, of Agent for Service)
with a copy to:
Stephen A. Greene, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective resignation statement for the same offering. |_| _____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| __________________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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Pursuant to Rule 429, the two prospectuses included in this Registration
Statement also relate to $106,434,000 of securities registered and remaining
unissued under Registration Statement No. 333-71833 previously filed by Atlas
Air, Inc., with respect to which the filing fee has previously been paid to the
Commission. Such Registration Statement is accordingly amended to reflect the
information contained herein, including the addition of Atlas Air Capital I, II
and III as registrants. In the event that any of such previously registered
securities are offered prior to the effective date of this Registration
Statement, the amount of such securities will not be included in any prospectus
hereunder. The amount of securities being registered, together with the
remaining securities registered under Registration Statement No. 333-71833,
represents the maximum amount of securities which are expected to be offered for
sale.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Explanatory Note
This Registration Statement contains two separate forms of prospectus, one
prospectus to be used in connection with offerings of Debt Securities, Preferred
Stock, Common Stock, Stock Purchase Contracts, Guarantees and Stock Purchase
Units of Atlas Air, Inc. and Preferred Securities of Atlas Air Capital I, II,
and III and the other prospectus to be used in connection with offerings of Pass
Through Certificates.
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PROSPECTUS
Atlas Air, Inc.
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
---------------
Atlas Air Capital I
Atlas Air Capital II
Atlas Air Capital III
Preferred Securities fully and
unconditionally guaranteed by Atlas Air, Inc.
This Prospectus relates to the issuance by Atlas Air, Inc. ("Atlas" or the
"Company") of (i) secured and unsecured debt securities (the "Debt Securities"),
(ii) shares of preferred stock, $1.00 per share (the "Preferred Shares"), (iii)
shares of common stock, $.01 per share (the "Common Stock"), which may include
shares being sold by certain of our shareholders, (iv) contracts to purchase our
Common Stock ("Stock Purchase Contracts") and (v) units consisting of a Stock
Purchase Contract and any of our other securities described above. This
Prospectus also relates to the issuance of certain preferred securities (the
"Preferred Securities") by Atlas Air Capital I, Atlas Air Capital II or Atlas
Air Capital III (each an "Atlas Trust"). Atlas owns the common securities of
each Atlas Trust and it is anticipated that Atlas will guarantee (each a
"Guarantee") distributions and liquidation payments on the Preferred Securities.
The securities described in this paragraph are referred to in this Prospectus,
collectively, as the Securities.
Issuance of Securities
- -- Securities may be periodically offered in one or more separate series or
classes;
- -- Securities may be denominated in U.S. dollars or other currencies or
currency units;
- -- Prices and terms will be determined at the time of sale; and
- -- The total aggregate principal amount or issue price of the Securities will
not exceed $250 million (or equivalent in foreign currencies or currency
units).
This Prospectus is accompanied by a Prospectus Supplement which includes
additional information as to a particular series of Debt Securities, Preferred
Stock, Common Stock, Stock Purchase Contracts, Stock Purchase
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Units or Preferred Securities. Sales of Securities may not be consummated
without both this Prospectus and a Prospectus Supplement. The Securities may be
offered, separately or together, at prices and terms to be set forth in one or
more Prospectus Supplements.
The Common Stock is listed on the New York Stock Exchange. Any Common Stock
offered will be listed, subject to notice of issuance, on such exchange.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the Securities or determined that this
Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
May 7, 1999
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Table of Contents
Page
----
Where You Can Find More
Information.......................... 1
Incorporation of Certain Documents by
Reference............................ 1
The Company............................ 2
Atlas Trusts........................... 2
Use of Proceeds........................ 3
Ratio of Earnings to Fixed Charges..... 3
Description of Debt Securities......... 3
Description of Capital Stock........... 13
Description of the Preferred
Securities........................... 15
Description of the Guarantee........... 24
Relationship Among the Preferred
Securities, the Debt Securities
and the Guarantee.................... 27
Description of Stock Purchase Contracts
and Stock Purchase Units............. 28
Selling Stockholders................... 29
Plan of Distribution................... 29
Validity of the Securities............. 30
Experts................................ 30
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Where You Can Find More Information
We and the Atlas Trusts filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (herein, together with all
amendments and exhibits, referred to as the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Securities to be offered. This Prospectus, which forms a part of the
Registration Statement, does not contain all of the information set forth in the
Registration Statement and the exhibits and schedules thereto, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For more information about the Company, the Atlas Trusts and the
Securities to be offered by this Prospectus, reference is made to the
Registration Statement and its exhibits and schedules. Any statement made in
this Prospectus concerning the provisions of certain documents may be incomplete
and, in each instance, reference is made to the copy of such document filed as
an exhibit to the Registration Statement otherwise filed with the Commission.
We file annual, quarterly and special reports, proxy statements and other
information with the Commission. The Registration Statement, its exhibits and
such reports, proxy statements and other information can be inspected and copied
at the public reference facilities maintained by the Commission at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following
Regional Offices of the Commission: New York Regional Office, Seven World Trade
Center, 13th Floor, New York, New York 10048; and Chicago Regional Office,
Citicorp Center, 500 West Madison Street, 14th Floor, Chicago, Illinois 60601.
Copies of such material can be obtained from the Public Reference Section of the
Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission also maintains an Internet Web Site at
http://www.sec.gov that contains reports and other information. Our Common Stock
is traded on the New York Stock Exchange under the symbol "CGO" and reports,
proxy statements and other information concerning the Company can be inspected
at the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
We have not filed separate financial statements of the Atlas Trusts. All of the
common securities of the Atlas Trusts will be owned by us and the Atlas Trusts
have no operating history or independent operations. In addition, following the
issuance of the Preferred Securities, the Atlas Trusts will not engage in any
activity other than holding as trust assets certain of the Securities issued by
us. In connection with any issuance of Preferred Securities, we will, through
one or more Guarantees or other agreements, irrevocably and unconditionally
guarantee payments on the Preferred Securities. For these reasons, we do not
think that the financial statements of any of the Atlas Trusts would be material
to prospective purchasers of the Preferred Securities.
Incorporation of Certain Documents by Reference:
The following documents have been filed by the Company with the Commission under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998,
2. The Company's Current Report on Form 8-K dated April 26, 1999, and
3. The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed pursuant to Section 12 of
the Exchange Act and all amendments thereto and reports filed for
the purpose of updating such description.
All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act: (1) subsequent to the initial filing of this Prospectus and prior
to the date it is declared effective; and (2) subsequent to the date of this
Prospectus and prior to the termination of this offering are incorporated by
reference and become a part of this Prospectus from their date of filing. Any
statement contained in this Prospectus or in a document incorporated by
reference is modified or superseded for purposes of this Prospectus to the
extent that a statement contained in any such document modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
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On request, we will provide anyone who receives a copy of this Prospectus with a
copy of any or all of the documents incorporated in this Prospectus by
reference. Written or telephone requests for such copies should be directed to
our principal office: Atlas Air, Inc., 538 Commons Drive, Golden, Colorado
80401, Attention: Chief Financial Officer (telephone (303) 526-5050).
You should rely only on the information incorporated by reference or provided in
this Prospectus or any Prospectus Supplement. We have not authorized anyone else
to provide you with different information. We are not making an offer of the
Securities in any state where the offer is not permitted. You should not assume
that the information in this Prospectus or any Prospectus Supplement is accurate
as of any date other than the date on the front of those documents.
The Company
We are the world's largest air cargo outsourcer, with an all Boeing fleet of 747
freighter aircraft that comply with Stage 3 FAA noise regulations. We provide
reliable airport-to-airport cargo transportation services throughout the world
to major international air carriers generally under three- to five-year
fixed-rate U.S. dollar denominated contracts which typically require that we
supply aircraft, crew, maintenance and insurance. Our customers currently
include some of the world's leading air carriers, including Alitalia, British
Airways and China Airlines Ltd. We provide efficient, cost effective service to
our customers primarily as a result of our productive work force, the
outsourcing of a significant part of our regular maintenance work on a
long-term, fixed-cost contractual basis and the advantageous cost economies
realized in the operation of our fleet, comprised solely of Boeing 747 aircraft
which are configured for service in long-haul cargo operations.
Atlas is incorporated under the laws of the State of Delaware. Our principal
executive offices are located at 538 Commons Drive, Golden, Colorado 80401, and
our telephone number is (303) 526-5050.
Atlas Trusts
Each Atlas Trust is a statutory business trust formed under Delaware law for the
exclusive purpose of issuing and selling its Trust Securities and using the
proceeds from the sale of such Trust Securities to acquire corresponding
Securities issued by us. Each Atlas Trust will be governed by a trust agreement
(each, as amended and restated at the time of any issuance of Preferred
Securities, a "Trust Agreement") substantially in the form filed as an exhibit
to the Registration Statement of which this Prospectus forms a part. Each Trust
Agreement will be qualified as an indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act").
All of the Common Securities of each Atlas Trust will be owned by Atlas. The
Common Securities of an Atlas Trust will rank pari passu, and payments will be
made thereon pro rata, with the Preferred Securities of such Atlas Trust, except
that upon the occurrence and continuance of an event of default under a Trust
Agreement. Upon such events, the rights of the Company as holder of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption or otherwise will be subordinated to the rights of the holders of the
Preferred Securities of such Atlas Trust. We will own Common Securities in an
aggregate liquidation amount equal to not less than 3% of the total capital of
each Atlas Trust.
Unless otherwise specified in the applicable Prospectus Supplement, each Atlas
Trust has a term of approximately 55 years, but may dissolve earlier as
provided in the applicable Trust Agreement. Each Trust's business and affairs
are conducted by its trustees, each appointed by the Company as holder of the
Common Securities. Unless otherwise specified in the applicable Prospectus
Supplement, the trustees for each Trust will be The First National Bank of
Chicago, as the Property Trustee (the "Property Trustee"), First Chicago
Delaware, Inc., as the Delaware Trustee (the "Delaware Trustee"), and three
individual trustees (the "Administrative Trustees") who are employees or
officers of or affiliated with the Company (collectively, the "Issuer
Trustees"). The First National Bank of Chicago, as Property Trustee, will act as
sole indenture trustee under each Trust Agreement for purposes of compliance
with the Trust Indenture Act. The First National Bank of Chicago will also act
as trustee
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under the Guarantees and the Indenture (as defined herein). See "Description of
Guarantees" and "Description of Debt Securities." The holder of the Common
Securities of an Atlas Trust, or the holders of a majority in liquidation
preference of the related Preferred Securities if certain events of default
under the Trust Agreement for such Atlas Trust have occurred and are continuing,
will be entitled to appoint, remove or replace the Property Trustee and/or the
Delaware Trustee for such Trust. In no event will the holders of the Preferred
Securities have the right to vote to appoint, remove or replace the
Administrative Trustees; such voting rights are vested exclusively in the holder
of the Common Securities. The duties and obligations of each Issuer Trustee are
governed by the applicable Trust Agreement. The Company will pay all fees and
expenses related to each Trust and the offering of the Preferred Securities and
will pay, directly or indirectly, all ongoing costs, expenses and liabilities of
each Trust.
Use of Proceeds
Except as otherwise provided in the applicable Prospectus Supplement, the net
proceeds to the Company from the sale of the Securities offered hereby will be
available for general corporate purposes, including, but not limited to,
repayment of short-term or long-term indebtedness, capital expenditures,
repurchases of common stock and acquisitions. The Company will not receive any
of the proceeds from the sale of Common Stock by any selling stockholders.
Ratio of Earnings to Fixed Charges
The ratio of earnings to fixed charges represents the number of times that fixed
charges were covered by earnings. For purposes of computing the ratio of
earnings to fixed charges, "earnings" consists of income (loss) prior to income
tax benefit (expense), as adjusted to exclude the "Write-off of capital
investment and other" in the second quarter of 1997, and fixed charges
(excluding capitalized interest for the period). "Fixed charges" consist of
interest expense (including amounts capitalized), amortization of debt issuance
costs and one-third of rental payments on operating leases (such one-third
portion having been deemed by us to represent the interest portion of such
payments). The table below presents the ratio of earnings to fixed charges for
the years ended December 31, 1994, 1995, 1996, 1997 and 1998.
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------------
1994 1995 1996 1997 1998
------ ------ ------ ------ ------
<S> <C> <C> <C> <C>
1.21 1.86 2.11 1.30 1.34
</TABLE>
Description of Debt Securities
The Debt Securities will be issued in one or more series under an Indenture (the
"Indenture") between the Company and The First National Bank of Chicago, as
trustee (the "Trustee"), a form of which is filed as an exhibit to the
Registration Statement. The Indenture will be subject to, and governed by, the
Trust Indenture Act. The following summary of certain provisions of the
Indenture does not purport to be complete and is qualified in its entirety by
express reference to the Indenture and the Securities Resolution (which may be
in the form of resolution or a supplemental indenture authorizing a series
(copies of which have been or will be filed with the Commission). All article
and section references herein are to the articles and sections of the Indenture,
and all capitalized terms used in this section without definition have the
meanings given such terms in the Indenture.
The Debt Securities will constitute senior or subordinated debt of the Company.
The Debt Securities will be issued under one or more separate Securities
Resolutions for Senior Debt Securities or Subordinated Debt Securities. The
particular terms of the Debt Securities offered by a Prospectus Supplement will
be described in such Prospectus Supplement, along with any applicable
modifications of, or additions to, the general terms of the
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Debt Securities as described herein and in the Indenture. Accordingly, for a
description of the terms of any series of Debt Securities, reference must be
made both the Prospectus Supplement relating thereto and the description of the
Debt Securities set forth in this Prospectus.
General
The Indenture does not limit the amount of Debt Securities that can be issued
thereunder and provides that the Debt Securities may be issued from time to time
in one or more series pursuant to the terms of one or more Securities
Resolutions creating such series. The Indenture does not restrict the amount of
debt that may be incurred by the Company or any subsidiary. The Indenture does
not contain any covenant or other provision that is specifically intended to
afford any Holder special protection in the event of highly leveraged
transactions or any other transactions resulting in a decline in the ratings or
credit quality of the Company. As of the date of this Prospectus, there were no
Debt Securities outstanding under the Indenture. The ranking of a series of Debt
Securities with respect to all indebtedness of the Company will be established
by the Securities Resolution creating such series. Although the Indenture
provides for the possible issuance of Debt Securities in other forms or
currencies, the only Debt Securities covered by this Prospectus will be Debt
Securities denominated in U.S. dollars in registered form without coupon unless
otherwise indicated in the applicable Prospectus Supplement.
Terms
Reference is made to the Prospectus Supplement for the following terms, if
applicable, of the Debt Securities offered thereby:
- -- the designation, aggregate principal amount, currency or composite
currency and denominations;
- -- the price at which such Debt Securities will be issued and, if an index,
formula or other method is used, the method for determining amounts of
principal or interest;
- -- the maturity date and other dates, if any, on which principal will be
payable;
- -- the interest rate or rates, if any, or method of calculating the interest
rate or rates;
- -- the date or dates from which interest will accrue and on which interest
will be payable, and the record dates for the payment of interest;
- -- the manner of paying principal and interest;
- -- the place or places where principal and interest will be payable;
- -- the terms of any mandatory or optional redemption by the Company including
any sinking fund;
- -- the terms of any conversion or exchange right;
- -- the terms of any redemption at the option of Holders;
- -- any tax indemnity provisions;
- -- if the Debt Securities provide that payments of principal or interest may
be made in a currency other than that in which Debt Securities are
denominated, the manner for determining such payments;
- -- the portion of principal payable upon acceleration of a Discounted Debt
Security (as defined below);
- -- whether and upon what terms Debt Securities may be defeased;
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- -- whether any events of default or covenants in addition to or in lieu of
those set forth in the Indenture apply;
- -- provisions for electronic issuance of Debt Securities or for Debt
Securities in uncertificated form;
- -- the ranking of the Debt Securities, including the relative degree, if any,
to which the Debt Securities of such series shall be subordinated to one
or more other series of Debt Securities in right of payment, whether
outstanding or not;
- -- any provisions relating to extending or shortening the date on which the
principal and premium, if any, of Debt Securities of such series is
payable;
- -- any provision relating to the deferral of payment of any interest;
- -- if such Debt Securities are to be issued to an Atlas Trust, the forms of
the related trust agreement and guarantee agreement relating thereto;
- -- the additions or changes, if any, to the Indenture with respect to the
Debt Securities of such series as shall be necessary to permit or
facilitate the issuance of such Debt Securities to an Atlas Trust; and
- -- any other terms not inconsistent with the provisions of the Indenture,
including any covenants or other terms that may be required or advisable
under United States or other applicable laws or regulations, or advisable
in connection with the marketing of the Debt Securities. (Section 2.01)
Debt Securities of any series may be issued as registered Debt Securities,
bearer Debt Securities or uncertificated Debt Securities, and in such
denominations as specified in the terms of the series. (Section 2.01)
In connection with its original issuance, no bearer Security will be offered,
sold or delivered to any location in the United States, and a bearer Debt
Security in definitive form may be delivered in connection with its original
issuance only upon presentation of a certificate in a form prescribed by the
Company to comply with United States laws and regulations. (Section 2.04)
Registration of transfer of registered Debt Securities may be requested upon
surrender thereof at any agency of the Company maintained for that purpose and
upon fulfillment of all other requirements of the agent. (Sections 2.03 and
2.07)
Debt Securities may be issued under the Indenture as Discounted Debt Securities
to be offered and sold at a substantial discount from the principal amount
thereof. Special United States federal income tax and other considerations
applicable thereto will be described in the Prospectus Supplement relating to
such Discounted Debt Securities. "Discounted Debt Security" means a Debt
Security where the amount of principal due upon acceleration is less than the
stated principal amount. (Sections 1.01)
Ranking of Debt Securities
Unless stated otherwise in a Prospectus Supplement, the Debt Securities will be
unsecured and will rank equally and ratably with other unsecured and
unsubordinated debt of the Company. The Debt Securities will not be secured by
any properties or assets and will represent unsecured debt of the Company. The
Indenture does not limit the ability of any of the Company's subsidiaries to
issue debt, and the Debt Securities will be effectively subordinated to all
existing and future indebtedness and other liabilities and commitments of the
Company's subsidiaries.
Successor Obligor
The Indenture provides that, unless otherwise specified in the Securities
Resolution establishing a series of Debt Securities, the Company shall not
consolidate with or merge into, or transfer all or substantially all of its
assets to, any person in any transaction in which the Company is not the
survivor, unless: (1) the person is organized
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under the laws of the United States or a State thereof or is organized under
the laws of a foreign jurisdiction and consents to the jurisdiction of the
courts of the United States or a State thereof; (2) the person assumes by
supplemental indenture all the obligations of the Company under the Indenture,
the Debt Securities and any coupons; (3) all required approvals of any
regulatory body having jurisdiction over the transaction shall have been
obtained; and (4) immediately after the transaction no Default (as defined
below) exists. The successor shall be substituted for the Company, and
thereafter all obligations of the Company under the Indenture, the Debt
Securities and any coupons shall terminate. (Section 5.01)
Exchange of Debt Securities
Registered Debt Securities may be exchanged for an equal aggregate principal
amount of registered Debt Securities of the same series and date of maturity in
such authorized denominations as may be requested upon surrender of the
registered Debt Securities at an agency of the Company maintained for such
purpose and upon fulfillment of all other requirements of such agent. (Section
2.07)
Default and Remedies
Unless the Securities Resolution establishing the series otherwise provides (in
which event the Prospectus Supplement will so state), an "Event of Default" with
respect to a series of Debt Securities will occur if:
(1) the Company defaults in any payment of interest on any Debt
Securities of such series when the same becomes due and payable and the
Default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal and
premium, if any, of any Debt Securities of the series when the same
becomes due and payable at maturity or upon redemption, acceleration or
otherwise;
(3) the Company defaults in the payment or satisfaction of any
sinking fund obligation with respect to any Debt Securities of the series
as required by the Securities Resolution establishing such series;
(4) the Company defaults in the performance of any of its other
agreements applicable to the series and the Default continues for 60 days
after the notice specified below;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian for it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian for the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 60 days; or
(7) there occurs any other Event of Default provided for in such
series. (Section 6.01)
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
(Section 6.01)
"Default" means any event which is, or after notice or passage of time would be,
an Event of Default. (1.01) A Default under subparagraph (4) above is not an
Event of Default until the Trustee or the Holders of at least 25% in principal
amount of the series notify the Company of the Default and the Company does not
cure the Default within the time specified after receipt of the notice. (Section
6.01) If an Event of Default occurs and is continuing on a series, the Trustee
by notice to the Company, or the Holders of at least 25% in principal amount of
the series (or, in the case of a series issued to an Atlas Trust, so long as any
of the related Preferred Securities of such Atlas Trust remain outstanding, if,
upon such Event of Default, the Trustee or the Holders of not less than 25% in
aggregate principal amount of such series fail to declare the principal of all
the Debt Securities of such series to be so immediately due and payable, the
holders of 25% in aggregate liquidation amount of such Preferred Securities then
outstanding shall have such right) by notice to the Company and the Trustee, may
declare the principal of and accrued interest on all the Debt Securities of the
series to be due and payable immediately. Discounted Debt Securities may provide
that the amount of principal due upon acceleration is less than the stated
principal amount. (6.02) The Holders of a majority in principal amount of the
series, by notice to the Trustee, may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default on the series have been cured or waived
except nonpayment of principal or interest that has become due solely because of
the acceleration; provided, that in the case of a series issued to an Atlas
Trust, so long as any of the related Preferred Securities of such Atlas Trust
remain outstanding, the holders of a majority in aggregate liquidation amount of
such Preferred Securities then outstanding shall also have such right to
rescission of acceleration and its consequences with respect to such series,
subject to the same conditions set forth above. (Section 6.02) If an Event of
Default occurs and is continuing on a series, the Trustee may pursue any
available remedy to collect principal or interest due on the series, to enforce
the performance of any provision applicable to the series or otherwise to
protect the rights of the Trustee and Holders of the series. (Section 6.03)
In the case of series issued to an Atlas Trust, any holder of the related
Preferred Securities of such Atlas Trust shall have the right, upon the
occurrence and continuance of an Event of Default described in clauses (1) and
(2) of the first paragraph of this subsection with respect to such series, to
institute a suit directly against the Company to enforce payment to such holder
of the principal of, and premium, if any, and interest on, the Debt Securities
having a principal amount equal to the aggregate liquidation amount of such
Preferred Securities held by such holder. (Section 6.06)
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Debt Securities of the series. (Section 7.01) Subject to
certain limitations, Holders of a majority in principal amount of the Debt
Securities of the series may direct the Trustee in its exercise of any trust or
power with respect to such series. (Section 6.05) Except in the case of Default
in payment on a series, the Trustee may withhold from Holders of such series
notice of any continuing Default if it determines that withholding the notice is
in the interest of Holders of the series. (Section 7.04) The Company is required
to furnish the Trustee annually a brief certificate as to the Company's
compliance with all conditions and covenants under the Indenture. (Section 4.04)
The Indenture does not have a cross-default provision. Thus, a default by the
Company on any other debt, including any other series of Debt Securities, would
not constitute an Event of Default. A Securities Resolution may provide for a
cross-default provision, in which case the Prospectus Supplement will describe
the terms thereof.
Amendments and Waivers
The Indenture and the Debt Securities or any coupons of the series may be
amended, and any default may be waived as follows: Unless the Securities
Resolution otherwise provides (in which event the Prospectus Supplement will so
state), the Company and the Trustee may amend the Debt Securities, the Indenture
and any coupons with the written consent of the Holders of a majority in
principal amount of the Debt Securities of all series affected voting as one
class; provided that, in the case of a series issued to an Atlas Trust, so long
as any of the
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<PAGE> 15
related Preferred Securities of such Atlas Trust remain outstanding, no such
amendment shall be made that adversely affects the holders of such Preferred
Securities in any material respect, and no termination of the Indenture shall
occur, without the prior consent of the holders of not less than a majority in
aggregate liquidation amount of such Preferred Securities then outstanding
unless and until the principal (and premium, if any) of the Debt Securities of
such series and all accrued and unpaid interest thereon have been paid in full;
and provided further that, in the case of a series issued to an Atlas Trust, so
long as any of the related Preferred Securities of such Atlas Trust remain
outstanding, no amendment shall be made to the provisions of the Indenture
described in the fourth paragraph under "Defaults and Remedies" above without
the prior consent of the holders of each such Preferred Security then
outstanding unless and until the principal (and premium, if any) of the Debt
Securities of such series and all accrued and unpaid interest hereon have been
paid in full. (Section 10.02) Unless the Securities Resolution otherwise
provides (in which event the Prospectus Supplement will so state), a Default on
a particular series may be waived with the consent of the Holders of a majority
in principal amount of the Debt Securities of the series (or, in the case of a
series issued to an Atlas Trust, so long as any of the related Preferred
Securities of such Atlas Trust remain outstanding, the holders of a majority in
aggregate liquidation amount of such Preferred Securities then outstanding.
(Section 6.04) However, without the consent of each Debt Security holder
affected, no amendment or waiver may (1) reduce the amount of Debt Securities
whose Holders must consent to an amendment or waiver, (2) reduce the interest on
or change the time for payment of interest on any Debt Security, (3) change the
fixed maturity of any Debt Security, (4) reduce the principal of any
non-Discounted Debt Security or reduce the amount of the principal of any
Discounted Debt Security that would be due on acceleration thereof, (5) change
the currency in which the principal or interest on a Debt Security is payable,
(6) make any change that materially adversely affects the right to convert or
exchange any Debt Security, or (7) waive any Default in payment of interest on
or principal of a Debt Security. (Sections 6.04 and 10.02) Without the consent
of any Debt Security holder, the Company and the Trustee may amend the
Indenture, the Debt Securities or any coupons: to cure any ambiguity, omission,
defect or inconsistency; to provide for assumption of Company obligations to
Debt Security holders in the event of a merger or consolidation requiring such
assumption; to provide that specific provisions of the Indenture shall not apply
to a series of Debt Securities not previously issued; to create a series and
establish its terms; to provide for a separate Trustee for one or more series;
or to make any change that does not materially adversely affect the rights of
any Debt Security holder. (Section 10.01)
Legal Defeasance and Covenant Defeasance
Debt Securities of a series may be defeased in accordance with their terms and,
unless the Securities Resolution establishing the terms of the series otherwise
provides, as set forth in the Indenture and described briefly below. The Company
at any time may terminate as to a series all of its obligations (except for
certain obligations, including obligations with respect to the defeasance trust
and obligations to register the transfer or exchange of a Debt Security, to
replace destroyed, lost or stolen Debt Securities and coupons, and to maintain
paying agencies in respect of the Debt Securities) with respect to the Debt
Securities of the series and any related coupons and the Indenture ("legal
defeasance"). The Company at any time may terminate as to a series its
obligations, if any, with respect to the Debt Securities and coupons of the
series under any restrictive covenants which may be applicable to a particular
series ("covenant defeasance").
The Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option. If the Company exercises its legal
defeasance option, a series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, a series may
not be accelerated by reference to any restrictive covenants which may be
applicable to a particular series. (Section 8.01)
To exercise either defeasance option as to a series, the Company must (i)
irrevocably deposit in trust (the "defeasance trust") with the Trustee or
another trustee money or U.S. Government Obligations, (ii) deliver a certificate
from a nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due on the deposited
U.S. Government Obligations, without reinvestment, plus any deposited money
without investment will provide cash at such times and in such amounts as will
be
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<PAGE> 16
sufficient to pay the principal and interest when due on all Debt Securities of
such series to maturity or redemption, as the case may be, and (iii) comply with
certain other conditions. In particular, the Company must obtain an opinion of
tax counsel that the defeasance will not result in recognition of any income,
gain or loss to Holders for federal income tax purposes. "U.S. Government
Obligations" means direct obligations of the United States or an agency or
instrumentality of the United States, the payment of which is unconditionally
guaranteed by the United States, which, in either case, have the full faith and
credit of the United States of America pledged for payment and which are not
callable at the issuer's option, or certificates representing an ownership
interest in such obligations. (Section 8.02)
Certain Provisions Relating to Corresponding Debt Securities
General. Debt Securities may be issued in one or more series of Debt Securities
under the Indenture with terms corresponding to the terms of a series of related
Preferred Securities ("Corresponding Debt Securities"). Concurrently with the
issuance of each Atlas Trust's Preferred Securities, such Atlas Trust will
invest the proceeds thereof and the consideration paid by the Company for the
Common Securities in a series of Corresponding Debt Securities issued by the
Company to such Atlas Trust. Each series of Corresponding Debt Securities will
be in the principal amount equal to the aggregate stated Liquidation Amount of
the related Preferred Securities. Holders of the related Preferred Securities
for a series of Corresponding Debt Securities will have the rights in connection
with modifications to the Indenture or upon occurrence of a Trust Event of
Default (as defined under "Description of Preferred Securities--Events of
Default; Notice") relating to Corresponding Debt Securities described under
"--Amendments and Waivers," "--Defaults and Remedies," and "--Enforcement of
Certain Rights by Holders of Preferred Securities," unless provided otherwise in
the Prospectus Supplement for such related Preferred Securities.
Unless otherwise specified in the applicable Prospectus Supplement, the Company
will covenant, as to each series of Corresponding Debt Securities, (i) to
maintain, directly or indirectly, 100% ownership of the Common Securities of the
Atlas Trust to which Corresponding Debt Securities have been issued, provided
that certain successors which are permitted pursuant to the Indenture may
succeed to the Company's ownership of the Common Securities, (ii) not to
voluntarily dissolve, wind-up or liquidate any Atlas Trust, except (a) in
connection with a distribution of Corresponding Debt Securities to the holders
of the Preferred Securities in liquidation of such Atlas Trust or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement and (iii) to use its reasonable efforts, consistent
with the terms and provisions of the related Trust Agreement, to cause such
Atlas Trust to remain classified as a grantor trust and not as an association
taxable as a corporation for United States Federal income tax purposes. For
additional covenants relating to payment of certain expenses of the Atlas
Trusts, see "Description of Preferred Securities --Payment of Expenses."
Option to Extend Interest Payment Date. If provided in the applicable Prospectus
Supplement, the Company shall have the right at any time and from time to time
during the term of any series of Corresponding Debt Securities to defer payment
of interest for such number of consecutive interest payment periods as may be
specified in the applicable Prospectus Supplement (each, an "Extension Period"),
subject to the terms, conditions and covenants, if any, specified in such
Prospectus Supplement, provided that such Extension Period may not extend beyond
the maturity date of such series of Corresponding Debt Securities. Certain
United Sates Federal income tax consequences and special considerations
applicable to any such Corresponding Debt Securities will be described in the
applicable Prospectus Supplement.
Redemption. Unless otherwise indicated in the applicable Prospectus Supplement,
the Company, may, as its option redeem the Corresponding Debt Securities of any
series in whole or at any time or in part from time to time. Corresponding Debt
Securities may be redeemed in the denominations as set forth in the applicable
Prospectus Supplement. Except as otherwise specified in the applicable
Prospectus Supplement, the redemption price for any Corresponding Debt Security
so redeemed shall equal any accrued and unpaid interest thereon to the
redemption date, plus the principal amount thereof. Unless otherwise specified
in the applicable Prospectus
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<PAGE> 17
Supplement, the Company may not redeem a series of Corresponding Debt Securities
in part unless all accrued and unpaid interest has been paid in full on all
outstanding Corresponding Debt Securities of such series for all interest
periods terminating on or prior to the redemption date.
Except as otherwise specified in the applicable Prospectus Supplement, if a Debt
Security Tax Event (as defined below) in respect of an Atlas Trust shall occur
and be continuing, the Company may, at its option, redeem the Corresponding Debt
Securities held by such Atlas Trust at any time within 90 days of the occurrence
of such Debt Security Tax Event, in whole but not in part, subject to the
provisions of the applicable Securities Resolution. The redemption price for any
such Corresponding Debt Securities shall be equal to 100% of the principal
amount of such Corresponding Debt Securities then outstanding plus accrued and
unpaid interest to the date fixed for redemption. For so long as the applicable
Atlas Trust is the holder of all such outstanding Corresponding Debt Securities,
the proceeds of any such redemption will be used by the Atlas Trust to redeem
the corresponding Trust Securities in accordance with their terms.
"Debt Security Tax Event" means the receipt by the applicable Atlas Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced proposed change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative written decision, pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or which proposed change, pronouncement, action or decision
is announced on or after the date of issuance of the applicable series of
Corresponding Debt Securities pursuant to the applicable Securities Resolution,
there is more than an insubstantial risk that (i) the applicable Atlas Trust is,
or will be within 90 days of the date of such opinion, subject to the United
States Federal income tax with respect to income received or accrued on the
corresponding series of Corresponding Debt Securities, (ii) interest payable by
the Company on such series of Corresponding Debt Securities is not, or within 90
days of the date of such opinion, will not be, deductible by the Company, in
whole or in part, for United States Federal income tax purposes or (iii) the
applicable Atlas Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
Restrictions on Certain Payments. The Company will, unless otherwise provided in
the applicable Prospectus Supplement, covenant, as to each series of
Corresponding Debt Securities, that it will not, and will not permit any
subsidiary of the Company to, (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect to,
any of the Company's capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company (including other Corresponding Debt Securities) that
rank par passu with or junior in interest to the Corresponding Debt Securities
or make any guarantee by the Company of the debt securities of any subsidiary of
the Company is such guarantee ranks pari passu or junior in interest to the
Corresponding Debt Securities (other than (a) dividends or distributions in
common stock of the Company, (b) redemptions or purchases of any rights pursuant
to the Company's shareholder rights plan ("Rights Agreement"), if any, or any
successor to such Rights Agreements in the future, (c) payments under any
Guarantee and (d) purchases of common stock related to the issuance of common
stock under any of the Company's benefit plans for its directions, officers or
employees) if at such time (A) there shall have occurred any event of which the
Company has actual knowledge (a) that with the giving of notice or the lapse of
time, or both, would constitute an Event of Default under the Indenture with
respect to the Corresponding Debt Securities of such series and (b) in respect
of which the Company shall not have taken reasonable steps to cure, (B) is such
Corresponding Debt Securities are held by an Atlas Trust which is the issuer of
a series of related Preferred Securities, the Company shall be in default with
respect to its payment of any obligations under the Guarantee relating to such
related Preferred Securities or (C) the Company shall have given notice of its
selection of an Extension Period as provided pursuant to the Securities
Resolution with respect to the Corresponding Debt Securities of such series and
shall not have rescinded such notice, or such Extension Period, or any extension
thereof, shall be continuing.
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<PAGE> 18
Enforcement of Certain Rights by Holders of Preferred Securities. If an Event of
Default with respect to a series of Corresponding Debt Securities has occurred
and is continuing and such event is attributable to the failure of the Company
to pay principal of or premium, if any, or interest, if any, on such series of
Corresponding Debt Securities in the date such interest, premium or principal is
otherwise payable, a holder of related Preferred Securities may institute a
legal proceeding directly against the Company for enforcement of payment to such
holder of the principal of or premium, if any, or interest, if any, on such
Corresponding Debt Securities having a principal amount equal to the aggregate
Liquidation Amount of the related Preferred Securities of such holder (a "Direct
Action"). The Company may not amend the Indenture to remove the foregoing right
to bring a Direct Action without the prior written consent of the holders of all
of the Preferred Securities. If the right to bring a Direct Action is removed,
the applicable Atlas Trust may become subject to the reporting obligations under
the Exchange Act. The Company shall have the right pursuant to the Indenture to
set-off any payments made to such holder of Preferred Securities by the Company
in connection with a Direct Action. Unless otherwise specified in the applicable
Prospectus Supplement, the holders of the related Preferred Securities will not
be able to exercise directly may remedies other than those set forth in this
paragraph available to the holders of the Corresponding Debt Securities.
Regarding the Trustee
The First National Bank of Chicago will act as Trustee and Registrar for Debt
Securities issued under the Indenture and, unless otherwise indicated in a
Prospectus Supplement, the Trustee will also act as Transfer Agent and Paying
Agent with respect to the Debt Securities. (Section 2.03) The Company may remove
the Trustee with or without cause if the Company so notifies the Trustee three
months in advance and if no Default occurs during the three-month period.
(Section 7.07) The Trustee, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the Company or its
affiliates, and may otherwise deal with the Company or its affiliates, as if it
were not Trustee.
Book-Entry
DTC will act as securities depository for the Securities. The Securities will be
issued only as fully registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). One or more fully registered global certificates
will be issued for the Securities representing the aggregate principal amount of
the Securities and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking Law,
a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the 1934 Act, as
amended. DTC holds securities that its participants (the "Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct Participants
of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in Direct
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly (the "Indirect Participants," and
together with the Direct Participants, the "Participants"). The rules applicable
to DTC and its Participants are on file with the SEC.
Purchases of the Securities within the DTC system must be made by or through
Direct Participants which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security (a
"Beneficial Owner") will in turn be recorded on the Direct and Indirect
Participants' respective records. Beneficial Owners will not receive written
confirmation from DTC of their purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the transaction, as well as
periodic state-
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<PAGE> 19
ments of their holdings, from the Direct or Indirect Participant through which
the Beneficial Owner entered into the transaction. Transfers of ownership
interest in the Securities will be effected by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not
receive certificates representing their ownership interest in Securities except
in the event that use of the book-entry system for the Securities is
discontinued.
The deposit of the Securities with DTC and their registration in the name of
Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other direct communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Securities of an issue are being redeemed, DTC's practice will determine by lot
the amount of the interest of each Direct Participant in such series to be
redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the Securities.
Under its usual procedures. DTC mails an omnibus proxy (an "Omnibus Proxy") to
the Participants as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants to
whose accounts the Securities are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
Principal, premium, if any, and interest on the Securities will be paid to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payment on such
payment date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the case with securities
held for the accounts of customers in bearer form or registered in
"street-name," and will be the responsibility of such Participant and not of
DTC, the underwriters, or the Company, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal,
premium, if any, and interest to DTC is the responsibility of the Company or the
Trustee. Disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with respect
to the Securities at any time by giving reasonable notice to the Company. Under
such circumstances and in the event that a successor securities depository is
not obtained, certificates for the Securities are required to be printed and
delivered. In addition, the Company may decide to discontinue use of the system
of book-entry transfers through DTC (or any successor securities depository). In
that event, certificates for the Securities will be printed and delivered.
The Company will not have any responsibility or obligation to Participants or to
the persons for whom they act as nominees with respect to the accuracy of the
records of DTC, its nominees or any Direct or Indirect Participant with respect
to any ownership interest in the Securities, or with respect to payments or
providing of notice to the Direct Participants, the Indirect Participants or the
Beneficial Owners.
So long as Cede & Co. is the registered owner of the Securities, as nominee of
DTC, references herein to holders of the Securities shall mean Cede & Co. or DTC
and shall not mean the Beneficial Owners of the Securities.
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The information in this section concerning DTC and DTC's book-entry system has
been obtained from DTC. None of the Company, the Trustees or the underwriters
take any responsibility for the accuracy or completeness thereof.
Description of Capital Stock
The following summarizes the material terms of our capital stock.
General
Our authorized capital stock consists of shares of Common Stock, par value $.01
per share, of which 34,265,621 shares were issued and outstanding as of March
31, 1999, and 10,000,000 shares of Preferred Stock, $1.00 per share, none of
which are currently outstanding.
Common Stock
Except as set forth under "--Limitation on Voting by Foreign Owners," the
holders of Common Stock are entitled under the Restated Certificate of
Incorporation to one vote for each share held of record on all matters submitted
to a vote of the stockholders. Subject to preferential rights with respect to
any outstanding Preferred Stock, holders of Common Stock are entitled to receive
ratably such dividends as may be declared by the Board of Directors out of
legally available funds. In the event of liquidation, dissolution or winding up
of the Company, the holders of Common Stock are entitled to share ratably in all
assets remaining after payment of liabilities and satisfaction of preferential
rights and have no rights to convert their Common Stock into any other
securities. The outstanding shares of Common Stock are fully paid and
non-assessable.
Preferred Stock
The Board of Directors is authorized under the Restated Certificate of
Incorporation to issue up to 10,000,000 shares of Preferred Stock in one or more
series. The Board is also authorized to fix the rights, preferences, privileges
and restrictions on the Preferred Stock, including:
- -- dividend rights,
- -- dividend rates,
- -- conversion rights,
- -- voting rights,
- -- terms of redemption,
- -- redemption prices,
- -- liquidation preferences and
- -- the number of shares constituting any series or the designation of such
series, without further vote or action by the stockholders.
The issuance of Preferred Stock may have the effect of delaying deferring or
preventing a change in control of the Company without further action by the
stockholders. The issuance of Preferred Stock with voting and conversion rights
may adversely affect the voting power of the holders of Common Stock, including
the loss of voting control to others.
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Limitation on Voting by Foreign Owners
The Restated Certificate of Incorporation defines "Foreign Ownership
Restrictions" as "applicable statutory, regulatory and interpretive restrictions
regarding foreign ownership or control of U.S. air carriers (as amended or
modified from time to time)." Such restrictions currently require that no more
than 25% of our voting stock be owned or controlled, directly or indirectly by
persons who are not U.S. citizens ("Foreigners") for purposes of the Foreign
Ownership Restrictions, that our chief executive officer and at least two thirds
of the members of our Board of Directors and other managing officers be U.S.
citizens and that we are not otherwise subject to foreign control.
The Restated Certificate of Incorporation provides that no shares of capital
stock may be voted by or at the direction of Foreigners, unless such shares are
registered on a separate stock record (the "Foreign Stock Record"). Our Restated
Bylaws further provide that no shares shall be registered on the Foreign Stock
Record if the amount so registered would exceed the Foreign Ownership
Restrictions. Registration on the Foreign Stock Record is made in chronological
order based on the date we receive a written request for registration.
Certain Provisions of Our Restated
Certificate of Incorporation and Bylaws
The Restated Certificate of Incorporation and Restated Bylaws include certain
provisions summarized below which may have an anti-takeover effect and may
delay, defer or prevent a tender offer or takeover attempt that stockholders
might consider in their best interest, including attempts that might result in a
premium over the market price for the shares held by stockholders.
Our Restated Certificate of Incorporation and Restated Bylaws provide:
- -- that any action required or permitted to be taken by our stockholders may
be effected only at an annual or special meeting of stockholders, and not
by written consent of the stockholders,
- -- that any meeting of stockholders may be called only by the Chairman of the
Board or upon the affirmative vote of at least a majority of the members
of the Board of Directors and
- -- for an advance notice procedure for the nomination, other than by or at
the direction of the Board of Directors or a Committee of the Board of
Directors, of candidates for election as directors, as well as for other
stockholder proposals to be considered at annual meetings of stockholders.
In general, we must receive notice of intent to nominate a director or raise
business at such meetings not less than 60 nor more than 90 days before the
meeting, and such notice must contain certain information concerning the person
to be nominated or the matters to be brought before the meeting and concerning
the stockholder submitting the proposal. The affirmative vote of at least a
majority of the directors or the holders of at least 66 2/3% of the voting power
of our voting stock is required to alter, amend or repeal, or adopt any
provision inconsistent with, the Bylaw provisions described in this paragraph.
Certain Provisions of Delaware Law
We are subject to Section 203 of the Delaware General Corporation Law, which
prohibits a Delaware corporation from engaging in a wide range of specified
transactions with any interested stockholder, defined to include, among others,
any person or entity who in the previous three years obtained 15% or more of any
class or series of stock entitled to vote in the election of directors, unless,
among other exceptions, the transaction is approved by (i) the Board of
Directors prior to the date the interested stockholder obtained such status or
(ii) the holders of two thirds of the outstanding shares of each class or series
which is not owned by the interested stockholder.
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Transfer Agent and Registrar
The Transfer Agent and Registrar for the Common Stock is American Securities
Transfer Incorporated.
Description of the Preferred Securities
The following description sets forth certain general terms and provisions of the
Preferred Securities to which any Prospectus Supplement may relate. The
particular terms and provisions of the Preferred Securities offered by a
Prospectus Supplement and the application of these general terms and provisions
will be described in the applicable Prospectus Supplement.
The Regular Trustees, on behalf of the Trust and pursuant to the Declaration,
will issue one class of Preferred Securities and one class of Common Securities.
The Trust Securities will represent undivided beneficial ownership interests in
the assets of the Trust. The following summaries of certain terms of the
Preferred Securities and certain provisions of the Declaration do not purport to
be complete, and reference is hereby made to the Trust Indenture Act and the
copy of the Declaration, including definitions of certain terms used in the
Declaration that is filed as an exhibit to the Registration Statement.
Capitalized terms used in this section not otherwise defined in this Prospectus
have the meanings set forth in the Declaration. Certain material United States
federal income tax consequences applicable to the offering of the Preferred
Securities will be described in the applicable Prospectus Supplement.
General
Except as described below under "--Subordination of Common Securities," the
Preferred Securities will rank on a parity, and payments will be made
proportionately, with the Common Securities. The Property Trustee will hold
legal title to the Debt Securities in trust for the benefit of the holders of
the Trust Securities. The Guarantee Agreement executed by Atlas for the benefit
of the holders of the Preferred Securities (the "Guarantee") will be a guarantee
with respect to the Preferred Securities but will not guarantee the payment of
Distributions or any amounts payable on redemption or liquidation of the
Preferred Securities when the Trust does not have funds on hand available to
make such payments. See "Description of the Guarantee." Certain material U.S.
federal income tax consequences and special considerations applicable to the
Preferred Securities will be described in the applicable Prospectus Supplement.
Distributions
Distributions on each Preferred Security will accumulate and be payable at a
rate specified in the applicable Prospectus Supplement. The amount of
Distributions payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months and the actual number of days elapsed per 30-day
month unless otherwise specified in the applicable Prospectus Supplement.
Distributions that are in arrears will accumulate additional distributions at
the rate per annum if and as specified in the applicable Prospectus Supplement
("Additional Amounts"). The term "Distributions" means cumulative cash
distributions that accumulate at the per annum rate specified in the applicable
Prospectus Supplement, together with any Additional Amounts unless otherwise
stated.
Distributions on the Preferred Securities will be cumulative, will accumulate
from the date of original issuance and will be payable on such dates as are
specified in the applicable Prospectus Supplement. If the date on which any
Distributions on the Trust Securities are payable (each, a "payment date") is
not a Business Day (as defined below), then payment of such Distributions will
be made on the next Business Day (without any interest or other payment in
respect of any such delay), provided that if such next Business Day falls in the
next calendar year, then payment of such Distributions will be made on the
Business Day preceding the payment date. Each date on which Distributions are
payable is referred to as a "Distribution Date." A "Business Day" means any day
other than a Saturday or Sunday or a day on which banking institutions in New
York City are authorized or required
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by law or executive order to remain closed, or a day on which the Indenture
Trustee, or the principal office of the Property Trustee, is closed for
business.
If provided in the applicable Prospectus Supplement, Atlas will have the right
under the Indenture to defer payments of interest on the Corresponding Debt
Securities from time to time by extending the applicable interest payment period
for a period or periods that will be specified in the applicable Prospectus
Supplement (each, an "Extension Period"). If Atlas exercises its right to defer
interest payments on the Corresponding Debt Securities, then any payments of
Distributions on the Preferred Securities also would be deferred.
During an Extension Period, interest will continue to accrue on the
Corresponding Debt Securities (compounded quarterly), and, as a result,
Distributions would continue to accumulate at the rate per annum if and as
specified in the applicable Prospectus Supplement. During any Extension Period,
Atlas may not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of Atlas'
capital stock or (ii) make any payment of principal, interest or premium, if
any, on or repay, repurchase or redeem any debt securities of Atlas that rank on
a parity with or junior in interest to the Corresponding Debt Securities or make
any guarantee payments with respect to any guarantee by Atlas of the debt
securities of any subsidiary of Atlas if such guarantee ranks on a parity with
or junior in interest to the Corresponding Debt Securities (other than (a)
purchases or acquisitions of capital stock of Atlas in connection with the
satisfaction by Atlas of our obligations under any employee benefit plans or
pursuant to any contract or security outstanding on the date of such event
requiring Atlas' to purchase capital stock of Atlas, (b) as a result of a
reclassification of Atlas' capital stock or the exchange or conversion of one
class or series of Atlas' capital stock for another class or series of Atlas'
capital stock, (c) the purchase of fractional interests in shares of Atlas'
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) dividends or
distributions in capital stock of Atlas (e) redemptions or repurchases of any
rights pursuant to a rights agreement and (f) payments under the Guarantee).
Prior to the termination of any Extension Period, Atlas may further extend the
Extension Period, but the total duration of any such Extension Period may not
exceed 20 consecutive quarters or extend beyond the stated maturity of the
Corresponding Debt Securities. Once any Extension Period terminates and Atlas
has paid all amounts then due, Atlas may commence a new Extension Period,
provided that such Extension Period together with all other extensions may not
exceed 20 quarters or extend beyond the stated maturity of the Debt Securities.
See "Description of the Debt Securities--Certain Provisions Relating to
Corresponding Debt Securities--Option to Extend Interest Payments." Once an
Extension Period has terminated, any deferred Distributions, including
accumulated Additional Amounts, will be paid to those holders of record of the
Trust Securities appearing on the books and records of the Trust on the first
record date following the termination of such Extension Period.
It is expected that any revenue available for the payment of Distributions to
holders of the Preferred Securities will be limited to payments made to the
Trust by Atlas under the Corresponding Debt Securities. If Atlas does not make
interest payments on the Corresponding Debt Securities, then the Property
Trustee will not have any funds available to pay Distributions on the Preferred
Securities. The payment of Distributions (if and to the extent the Trust has
funds legally available for the payment of such Distributions and cash
sufficient to make such payments) is guaranteed by Atlas as set forth under the
Guarantee. See "Description of the Guarantee."
The Property Trustee will pay Distributions to the holders of the Preferred
Securities as such holders appear on the Trust's securities register on the
relevant record dates. As long as the Preferred Securities are represented by
one or more Global Securities, the relevant record dates will be the close of
business on the Business Day next preceding each Distribution Date, unless a
different regular record date is established or provided for the corresponding
interest payment date on the Corresponding Debt Securities. Subject to any
applicable laws and regulations and the provisions of the Declaration, unless
otherwise specified in the applicable Prospectus Supplement, each such payment
will be made as described under "Book-Entry Issuance." If any Preferred
Securities are not represented by Global Securities, then the relevant record
date for such Preferred Securities will be the fifteenth Business Day prior to
the relevant Distribution Date, that is specified in the applicable Prospectus
Supplement.
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MARKET RATE RESET
Unless the Prospectus Supplement otherwise provides, the interest rate on the
Debt Securities that remain outstanding on and after the settlement date of any
Stock Purchase Contract (and therefore the distribution rate on the Preferred
Securities) will be reset on the third Business Day immediately preceding such
Purchase Contract Settlement Date to the Reset Rate, which will be equal to the
sum of the Reset Spread and the rate of interest on the Two-Year Benchmark
Treasury in effect on the third Business Day immediately preceding the Purchase
Contract Settlement Date and will be determined by the Reset Agent as the rate
the Preferred Securities should bear in order for a Preferred Security to have
market value as specified in the Prospectus Supplement on the third Business Day
immediately preceding the Purchase Contract Settlement Date. The "Two-Year
Benchmark Treasury" shall mean direct obligations of the United States (which
may be obligations traded on a when-issued basis only) having a maturity
comparable to the remaining term to maturity of the Preferred Securities, as
agreed upon by the Company and the Reset Agent. The rate for the Two-Year
Benchmark Treasury will be the bid side rate displayed at 10:00 A.M., New York
City time, on the third Business Day immediately preceding the Purchase Contract
Settlement Date in the Telerate system (or if the Telerate system is (a) no
longer available on the third Business Day immediately preceding the Purchase
Contract Settlement Date or (b) in the opinion of the Reset Agent (after
consultation with the Company) no longer an appropriate system from which to
obtain such rate, such other nationally recognized quotation system as, in the
opinion of the Reset Agent (after consultation with the Company) is
appropriate). If such rate is not so displayed, the rate for the Two-Year
Benchmark Treasury shall be, as calculated by the Reset Agent, the yield to
maturity for the Two-Year Benchmark Treasury, expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis, and computed by taking the arithmetic mean of the secondary market bid
rates, as of 10:30 A.M., New York City time, on the third Business Day
immediately preceding the Purchase Contract Settlement Date of three leading
United States government securities dealers selected by the Reset Agent (after
consultation with the Company) (which may include the Reset Agent or an
affiliate thereof).
On the tenth Business Day immediately preceding the Purchase Contract Settlement
Date, the Two-Year Benchmark Treasury to be used to determine the Reset Rate on
the Purchase Contract Settlement Date will be selected and the Reset Spread to
be added to the rate on the Two-Year Benchmark Treasury in effect on the third
Business Day immediately preceding the Purchase Contract Settlement Date will be
established by the Reset Agent, and the Reset Spread and the Two-Year Benchmark
Treasury will be announced by the Company (the "Reset Announcement Date"). The
Company will cause a notice of the Reset Spread and such Two-Year Benchmark
Treasury to be published on the Business Day following the Reset Announcement
Date by publication in a daily newspaper in the English language of general
circulation in The City of New York, which is expected to be The Wall Street
Journal. The Company will request, not later than 7 nor more than 15 calendar
days prior to the Reset Announcement Date, that the Depositary notify its
participants holding Preferred Securities, of such Reset Announcement Date and
of the procedures that must be followed if any owner wishes to settle the
related Purchase Contract with cash on the Business Day immediately preceding
the Purchase Contract Settlement Date.
OPTIONAL REMARKETING
Unless the Prospectus Supplement otherwise provides, pursuant to a remarketing
agreement and subject to the terms of a remarketing underwriting agreement, on
or prior to the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, but no earlier than the Payment Day immediately preceding the
Purchase Contract Settlement Date, holders of separate Preferred Securities may
elect to have their Preferred Securities remarketed by delivering their
Preferred Securities along with a notice of such election to the Custodial
Agent. The Custodial Agent will hold such Preferred Securities in an account
separate from the collateral account in which the Pledged Securities will be
held. Holders of Preferred Securities electing to have their Preferred
Securities remarketed will also have the right to withdraw such election on or
prior to the fifth Business Day immediately preceding the Purchase Contract
Settlement Date.
Redemption or Exchange
Mandatory Redemption. Unless otherwise specified in the applicable Prospectus
Supplement, if the Corresponding Debt Securities held by the Trust are repaid or
redeemed in whole or in part, either upon their maturity date or earlier, then
the Property Trustee will use the proceeds from such repayment or redemption to
redeem Trust Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Corresponding Debt Securities being repaid or
redeemed. The redemption price per Trust Security will be equal to the aggregate
stated amount of the Trust Securities being redeemed plus any accumulated and
unpaid Distributions thereon to the date of redemption plus the related amount
of the premium, if any, paid by Atlas upon the concurrent redemption of the
Corresponding Debt Securities (the "Redemption Price"). In the event of a
partial redemption, the Trust Securities will be redeemed among all of the
holders of Trust Securities on a pro rata basis. Holders of the Trust Securities
will receive at least 30 days but not more than 60 days notice of such
redemption.
Tax Event Redemption. If a Tax Event occurs and is continuing, Atlas will have
the right to redeem the Corresponding Debt Securities in whole (but not in part)
and thereby cause a mandatory redemption of the Trust Securities in whole (but
not in part) at the Redemption Price within 90 days following the occurrence of
such Tax Event. In the event a Tax Event has occurred and is continuing and
Atlas does not elect to redeem the Corresponding Debt Securities (thereby
causing a mandatory redemption of such Preferred Securities) or to liquidate the
Trust (causing the Corresponding Debt Securities to be distributed to holders of
the Trust Securities in exchange therefor upon liquidation of the Trust as
described above), the Preferred Securities will remain outstanding. See
"Description of Debt Securities--Certain Provisions Relating to Corresponding
Debt Securities" for a definition of Tax Event.
Distribution of Corresponding Debt Securities. Unless otherwise specified in the
applicable Prospectus Supplement, Atlas will have the right to dissolve the
Trust at any time and, after satisfaction of any liabilities to creditors of the
Trust as provided by applicable law, to cause the Corresponding Debt Securities
to be distributed pro rata to the holders of the Trust Securities in liquidation
of the Trust. If, at any time, an Investment Company Event shall occur and be
continuing, the Trust shall be dissolved and the corresponding Debt Securities
will be distributed pro rata to the holders of the Trust Securities in
liquidation of the Trust.
"Investment Company Event" means the receipt by the applicable Atlas Trust of
an opinion of counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in the Investment
Company Act"), the applicable Atlas Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), which Change in
the Investment Company Act becomes effective on or after the date of original
issuance of the series of Preferred Securities issued by the Atlas of Trust.
After the date fixed for any distribution of Corresponding Debt Securities, (i)
the Preferred Securities will no longer be deemed to be outstanding and (ii) any
certificates representing the Preferred Securities will be deemed to represent
Corresponding Debt Securities in a principal amount equal to the stated
liquidation amount of the Preferred Securities, bearing accrued and unpaid
interest in an amount equal to the accumulated and unpaid Distributions on the
Preferred Securities, until such certificates are presented to the Regular
Trustees or their agent for transfer or reissuance.
There can be no assurance as to the market prices for the Preferred Securities
or for the Corresponding Debt Securities that may be distributed in exchange for
Preferred Securities upon dissolution or liquidation of the Trust. Accordingly,
the Preferred Securities that an investor may purchase, or the Corresponding
Debt Securities that such investor may receive upon dissolution or liquidation
of the Trust, may trade at a discount to the price that such investor paid to
purchase the Preferred Securities offered hereby.
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Redemption Procedures
Any Preferred Securities being redeemed will be redeemed by the Trust at the
applicable Redemption Price with the proceeds received by the Trust from the
contemporaneous redemption of the Corresponding Debt Securities by Atlas.
Redemptions of Preferred Securities will be made and the applicable Redemption
Price will be payable only to the extent that the Trust has funds on hand
available for the payment of such Redemption Price.
If the Trust notifies the holders of the Preferred Securities of a redemption
and if the Preferred Securities to be redeemed are issued in global form, then
on the applicable redemption date, the Property Trustee will deposit irrevocably
with the depositary for the Preferred Securities funds sufficient to pay the
applicable redemption price, to the extent funds are available. In addition, the
Property Trustee will give the depositary irrevocable instructions and authority
to pay the redemption price to the beneficial owners of the Preferred
Securities. If the Preferred Securities are not issued in global form, then the
Property Trustee will pay the applicable Redemption Price to the holders of the
Preferred Securities by check mailed to their respective addresses appearing on
the register of the Trust on the redemption date. In addition, the Property
Trustee will give such paying agent irrevocable instructions and authority to
pay the Redemption Price to the holders of the Preferred Securities upon
surrender of their certificates evidencing the Preferred Securities.
Notwithstanding the foregoing, Distributions payable on or prior to a redemption
date for the Preferred Securities will be payable to the holders of the
Preferred Securities as they appear on the register for the Trust Securities on
the relevant record dates for the related Distribution Dates. If a notice of
redemption has been given and funds have been deposited as required, then upon
the date of such deposit, all of the rights of the holders of the Preferred
Securities to be redeemed will cease, except for the right of such holders to
receive the Redemption Price (without interest thereon), and the Preferred
Securities will cease to be outstanding. If the redemption date is not a
Business Day, then payment of the applicable Redemption Price will be made on
the next Business Day (and without any interest or other payment in respect of
any such delay). If, however, the next Business Day falls in the next calendar
year, then payment of the Redemption Price will be made on the Business Day
preceding the redemption date.
If any payments for the redemption of any Preferred Securities are improperly
withheld or refused and not paid either by the Trust or by Atlas pursuant to the
Guarantee, then Distributions on the Preferred Securities will continue to
accumulate at the then applicable rate, from the redemption date originally
established by the Trust until the date upon which such redemption payments
actually are paid, in which case the actual payment date will be the date fixed
for redemption for purposes of calculating the applicable redemption price.
Subject to the Declaration and applicable law (including, without limitation,
U.S. federal securities laws), Atlas or its subsidiaries may purchase at any
time and from time to time outstanding Preferred Securities by tender, in the
open market or by private agreement.
Any notice of the redemption of Trust Securities or the distribution of
Corresponding Debt Securities in exchange for Trust Securities will be mailed to
each holder of Preferred Securities being so redeemed at least 30 days but not
more than 60 days before the applicable redemption date, at such holder's
registered address. Unless Atlas defaults in the payment of the redemption price
on the Corresponding Debt Securities, interest will cease to accrue on the
Corresponding Debt Securities or portions thereof (and Distributions will cease
to accumulate on the Preferred Securities or portions thereof) called for
redemption on and after the redemption date.
Subordination of Common Securities
The payment of Distributions on, and any payment upon redemption of, the
Preferred Securities and Common Securities, as applicable, will be made pro rata
based on their respective liquidation amounts. If, however, an Indenture Event
of Default has occurred and continues on any Distribution Date or redemption
date, then the amounts payable on such date will not be made on any of the
Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of any Common Securities will be made until all
accumulated and unpaid Distributions or redemption payments, as the case may be,
on all of the outstanding Preferred Securities for which Distributions are
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to be paid or that have been called for redemption, as the case may be, are
fully paid. See "Description of Debt Securities--Indenture Events of Default."
All funds available to the Property Trustee first will be applied to the payment
in full in cash of all Distributions on, or the redemption price of, the
Preferred Securities then due and payable. The Trust will not issue any
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
In the event that an Event of Default under the Declaration resulting from an
Indenture Event of Default (a "Trust Enforcement Event") has occurred and is
continuing with respect to the Preferred Securities, then Atlas, as sole holder
of the Common Securities, will be deemed to have waived any right to act with
respect to any such Trust Enforcement Event until the effect of such Trust
Enforcement Event with respect to the Preferred Securities has been cured,
waived or otherwise eliminated. Until such Trust Enforcement Event has been so
cured, waived or otherwise eliminated, the Property Trustee will act solely on
behalf of the holders of the Preferred Securities and not on behalf of Atlas, as
holder of the Common Securities, and only the holders of the Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf. See "--Trust Enforcement Events; Notice."
Dissolution of the Trust and Distributions upon Dissolution
Unless otherwise specified in the applicable Prospectus Supplement pursuant to
the Declaration, the Trust will automatically dissolve upon the expiration of
its term or, if earlier, shall dissolve on the first to occur of: (i) certain
events of bankruptcy, dissolution or liquidation of Atlas; (ii) the written
direction to the Property Trustee from Atlas at any time to dissolve the Trust
and to distribute the Corresponding Debt Securities in exchange for the Trust
Securities; (iii) redemption of all of the Preferred Securities as described
under "--Redemption or Exchange--Mandatory Redemption"; and (iv) the entry of an
order for the dissolution of the Trust by a court of competent jurisdiction.
If an early dissolution occurs as described in clause (i), (ii) or (iv) above,
the Trust will be liquidated by the Trustees as expeditiously as the Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, to the holders of the
Trust Securities in exchange therefor Corresponding Debt Securities, unless such
distribution is determined by the Property Trustee not to be practical, in which
event the holders of the Trust Securities will be entitled to receive out of the
assets of the Trust distributions in cash or other immediately available funds
to the extent such funds are available for distribution after satisfaction of
the Trust's liabilities to any creditors (the "Liquidation Distributions"). The
amount of each Liquidation Distribution will be equal to the aggregate of the
stated liquidation amount plus accumulated and unpaid Distributions thereon to
the date of payment. If, however, Corresponding Debt Securities are to be
distributed in connection with such Liquidation, then the holders of the Trust
Securities will receive Corresponding Debt Securities in an aggregate principal
amount equal to the aggregate stated liquidation amount of the Trust Securities,
with an interest rate identical to the distribution rate of, and accrued and
unpaid interest equal to accumulated and unpaid Distributions on, such Trust
Securities.
If the Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay the aggregate Liquidation Distribution in
full, then the amounts payable directly by the Trust on the Trust Securities
will be paid on a pro rata basis. Atlas, as sole holder of the Common
Securities, will be entitled to receive Liquidation Distributions on a pro rata
basis with the Holders of the Preferred Securities, except that if an Indenture
Event of Default has occurred and is continuing, then the Preferred Securities
will have a preference over the Common Securities with regard to such
Liquidation Distributions.
Trust Enforcement Events; Notice
Under the Declaration, holders of Trust Securities have certain rights in the
event that any Indenture Event of Default has occurred and continues with
respect to the Trust Securities issued thereunder. See "Description of Debt
Securities--Indenture Events of Default." If a Trust Enforcement Event has
occurred and is continuing, the Preferred Securities will have a preference over
the Common Securities upon dissolution of the Trust, as described above.
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The Property Trustee will transmit by mail, first class postage prepaid, notice
of such Trust Enforcement Event to the holders of the Trust Securities within 90
days of the occurrence of the Trust Enforcement Event unless such Trust
Enforcement Event has been cured before the giving of such notice. Atlas and the
Regular Trustees are required to file annually with the Property Trustee a
certificate as to whether or not they are in compliance with all the conditions
and covenants applicable to them under the Declaration as well as any reports
that may be required to be filed by them under the Trust Indenture Act.
Removal of Trustees
Unless an Indenture Event of Default has occurred and continues, any Trustee may
be removed with or without cause at any time by the holder of the Common
Securities. If an Indenture Event of Default has occurred and continues, the
Property Trustee and the Delaware Trustee may be removed by a majority of the
stated liquidation amount of the Preferred Securities. The removal of a Property
Trustee or a Delaware Trustee, however, will not be effective until a successor
Trustee possessing the qualifications to act as a Property Trustee or Delaware
Trustee, as the case may be, has accepted its appointment in accordance with the
provisions of the Declaration.
Merger or Consolidation of Trustees
Any entity into which the Property Trustee, the Delaware Trustee or any Regular
Trustee that is not a natural person may be merged or converted or with which it
may be consolidated, or any entity resulting from any merger, conversion or
consolidation to which such Trustee may be a party, or any entity succeeding to
all or substantially all the corporate trust business of such Trustee, will be
the successor of such Trustee under the Declaration, provided that such entity
is otherwise qualified and eligible.
Mergers, Consolidations or Amalgamations
The Trust may not consolidate with, convert into, amalgamate or merge with or
into, be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described below or as described in "Dissolution of the Trust and Distributions
upon Dissolution." At the request of Atlas and with the consent of a majority of
the Regular Trustees, and without the consent of the holders of the Preferred
Securities, the Delaware Trustee or the Property Trustee, the Trust may
consolidate with, convert into, amalgamate or merge with or into, be replaced by
or convey, transfer or lease its properties substantially as an entirety to a
trust organized as such under the laws of any state. Such consolidation,
conversion, amalgamation, merger, replacement, conveyance, transfer or lease
will be subject, however, to the following limitations:
(i) if the Trust is not the successor entity, then the successor entity
either must (a) expressly assume all of the Trust's obligations with
respect to the Trust Securities or (b) substitute for the Trust
Securities other securities having substantially the same terms as
the Trust Securities (the "Successor Securities"), so long as such
Successor Securities rank the same as the Trust Securities with
respect to distributions and payments upon liquidation, redemption
and otherwise;
(ii) Atlas must expressly appoint a trustee of a successor entity
possessing the same powers and duties as the Property Trustee as the
holder of the Corresponding Debt Securities;
(iii) the Preferred Securities or any Successor Securities must be listed,
or upon notification of issuance will be listed, on any national
securities exchange or with any other organization on which the
Preferred Securities are then listed or quoted;
(iv) such consolidation, conversion, amalgamation, merger, replacement,
conveyance, transfer or lease must not cause the Preferred
Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization;
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(v) such consolidation, conversion, amalgamation, merger, replacement,
conveyance, transfer or lease must not adversely affect the rights,
preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material
respect;
(vi) such successor entity must have a purpose substantially identical to
that of the Trust;
(vii) prior to such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease, Atlas must have received
an opinion of independent counsel to the Trust experienced in such
matters to the effect that (a) such consolidation, conversion,
amalgamation, merger, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of
the holders of the Trust Securities (including any Successor
Securities) in any material respect; (b) following such
consolidation, conversion, amalgamation, merger, replacement,
conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under
the Investment Company Act and (c) following such consolidation,
conversion, amalgamation, merger, replacement, conveyance, transfer
or lease, the Trust (or the successor entity) will continue to be
classified as a grantor trust for U.S. federal income tax purposes;
and
(viii) Atlas or any permitted successor or assignee must own all of the
common securities and must guarantee the obligations of such
successor entity under the Successor Securities, at least to the
extent provided by the Guarantee.
Notwithstanding the foregoing, unless holders of 100% in aggregate liquidation
amount of the Trust Securities give their consent, the Trust will not
consolidate with, convert into, amalgamate or merge with or into, be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to, any other entity or permit any other entity to consolidate with,
amalgamate or merge with or into, or replace it, if such consolidation,
conversion, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be classified as other than a
grantor trust for U.S. federal income tax purposes or would cause each holder of
Trust Securities not to be treated as owning an undivided beneficial ownership
interest in the Corresponding Debt Securities.
Voting Rights; Amendment of Declaration
Except as provided below and under "Description of the Guarantee--Amendments;
Assignment" and as otherwise required by the Declaration, the Business Trust
Act, the Trust Indenture Act and other applicable law, the holders of the Trust
Securities will have no voting rights.
Subject to the requirement of the Property Trustee obtaining a tax opinion in
certain circumstances set forth in the last sentence of this paragraph, the
holders of a majority in aggregate liquidation amount of the Preferred
Securities, voting separately as a class, have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee, or to direct the exercise of any trust or power conferred upon
the Property Trustee under the Declaration. This includes the right to direct
the Property Trustee, as holder of the Corresponding Debt Securities, to (i)
exercise the remedies available to it under the Indenture, (ii) consent to any
amendment or modification of the Indenture or the Corresponding Debt Securities
where such consent will be required or (iii) waive any past default and its
consequences that is waivable under the Indenture; provided that if an Indenture
Event of Default has occurred and is continuing, then the holders of 25% of the
aggregate stated liquidation amount of the Preferred Securities may direct the
Property Trustee to declare the principal of and interest on the Corresponding
Debt Securities due and payable; and provided further that where a consent or
action under the Indenture would require the consent or act of the holders of
more than a majority
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of the aggregate principal amount of Corresponding Debt Securities affected
thereby, the Property Trustee only may give such consent or take such action at
the direction of the holders of at least the same proportion in aggregate stated
liquidation amount of the Preferred Securities. The Property Trustee will notify
all holders of the Preferred Securities of any notice of any Indenture Event of
Default that it has received from Atlas. Such notice will state that such
Indenture Event of Default also constitutes an Trust Enforcement Event. Except
with respect to directing the time, method and place of conducting a proceeding
for a remedy, the Property Trustee will have no obligation to take any of the
actions described in clause (i) or (ii) above unless it first has obtained an
opinion of independent tax counsel experienced in such matters to the effect
that, as a result of such action, the Trust will not fail to be classified as a
grantor trust for U.S. federal income tax purposes and that each holder of Trust
Securities will be treated as owning an undivided beneficial ownership interest
in the Corresponding Debt Securities.
If the consent of the Property Trustee, as the holder of the Corresponding Debt
Securities, is required under the Indenture with respect to any amendment or
modification of the Indenture, the Property Trustee will request the direction
of the holders of the Trust Securities with respect to such amendment or
modification and will vote with respect to such amendment or modification as
directed by the holders of a majority in stated liquidation amount of the Trust
Securities voting together as a single class; provided that where a consent
under the Indenture would require the consent of the holders of more than a
majority of the aggregate principal amount of Corresponding Debt Securities, the
Property Trustee only may give such consent at the direction of the holders of
at least the same proportion in aggregate stated liquidation amount of the Trust
Securities. The Property Trustee will not take any such action in accordance
with the directions of the holders of the Trust Securities unless the Property
Trustee has obtained an opinion of independent tax counsel to the effect that
the Trust will not be classified as other than a grantor trust for United States
federal income tax purposes as a result of such action, and that each holder of
Trust Securities will be treated as owning an undivided beneficial ownership
interest in the Corresponding Debt Securities.
A waiver of an Indenture Event of Default with respect to the Corresponding Debt
Securities will constitute a waiver of the corresponding Trust Enforcement
Event.
Any required approval or direction of the holders of the Preferred Securities
may be given at a separate meeting of holders of the Preferred Securities
convened for such purpose, at a meeting of all of the holders of the Trust
Securities or pursuant to written consent. The Regular Trustees will direct the
Property Trustee to cause a notice of any meeting at which the holders of the
Preferred Securities are entitled to vote to be mailed to each holder of record
of Preferred Securities. Each such notice will include a statement setting forth
(i) the date, time and place of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such holders are
entitled to vote and (iii) instructions for the delivery of proxies.
No vote or consent of the holders of Preferred Securities will be required for
the Trust to redeem and cancel the Preferred Securities or distribute the
Corresponding Debt Securities in accordance with the Declaration and the terms
of the Trust Securities.
Notwithstanding that holders of the Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned at such time by Atlas, the Trustees or any entity
directly or indirectly controlled by, or under direct or indirect common control
with, Atlas or any Trustee will not be entitled to vote or consent and will, for
purposes of such vote or consent, be treated as if such Preferred Securities
were not outstanding.
Except during the continuance of an Indenture Event of Default, the holders of
the Preferred Securities will have no rights to appoint or remove the Trustees,
who may be appointed, removed or replaced solely by Atlas as the holder of all
of the Common Securities. If an Indenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed and
replaced by the holders of a majority in liquidation amount of the Preferred
Securities.
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Generally, the Declaration may be amended without the consent of the holders of
the Trust Securities, if such amendment does not have a material adverse effect
on certain rights, preferences or privileges of the holders of the Trust
Securities. Any amendment, however, that affects the powers, preferences or
special rights of the Trust Securities, or results in the dissolution,
winding-up or termination of the Trust (other than pursuant to the Declaration),
will not be effective unless the holders of at least 66 2/3% of the stated
liquidation amount of the Trust Securities have approved such amendment.
Further, any amendment that changes the amount or timing of any Distribution or
otherwise adversely affects the amount of any Distribution required to be made
in respect of the Trust Securities, or any amendment that restricts the rights
of a holder of Trust Securities to institute a suit for the enforcement of
payment of Distributions, will not be effective unless each holder of Trust
Securities has approved such amendment.
Global Preferred Securities
Unless otherwise specified in the applicable Prospectus Supplement, the
Preferred Securities may be issued in whole or in part in global form ("Global
Preferred Securities") that will be deposited with, or on behalf of, a
depositary identified in the applicable Prospectus Supplement. Global Preferred
Securities may be issued in fully registered form and in either temporary or
permanent form. Unless and until a Global Preferred Security is exchanged in
whole or in part for the individual Preferred Securities represented thereby,
the depositary holding such Global Preferred Security may transfer such Global
Preferred Security only to its nominee or successor depositary (or vice versa)
and only as a whole. Unless otherwise indicated in the applicable Prospectus
Supplement for the Preferred Securities, the depositary for the Global Preferred
Securities will be The Depository Trust Company. See "Book-Entry Issuance." The
laws of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. Such limits and laws
may impair the ability to transfer beneficial interests in Global Preferred
Securities.
The specific terms of the depositary arrangement for the Preferred Securities
will be described in the applicable Prospectus Supplement. Atlas anticipates
that the description of the depositary set forth below under "Book-Entry
Issuance" generally will apply to any depositary arrangements. Atlas expects
that the applicable depositary or its nominee, upon receipt of any payment of
liquidation amount, premium or Distributions in respect of a permanent Global
Preferred Security representing any of the Preferred Securities, immediately
will credit Participants' accounts with payments in amounts proportionate to
their respective beneficial interests in the aggregate principal amount of such
Global Preferred Security as shown on the records of the depositary or its
nominee. Atlas also expects that payments by Participants to Beneficial Owners
will be governed by standing instructions and customary practices, as is now the
case with securities held for the accounts of customers in bearer form or
registered in "street name." Such payments will be the responsibility of such
Participants.
Unless otherwise specified in the applicable Prospectus Supplement, if at any
time the depositary is unwilling, unable or ineligible to continue as a
depositary for the Preferred Securities, the Trust will appoint a successor
depositary with respect to the Preferred Securities. If a successor depositary
is not appointed by the Trust within 90 days after the Trust receives such
notice or becomes aware of such ineligibility, the Trust's election that the
Preferred Securities be represented by one or more Global Securities will no
longer be effective, and a Regular Trustee on behalf of the Trust will execute,
and the Property Trustee will authenticate and deliver, Preferred Securities in
definitive registered form, in any authorized denominations, in an aggregate
stated liquidation amount equal to the principal amount of the Global Preferred
Securities representing the Preferred Securities in exchange for such Global
Preferred Securities. In addition, the Trust may at any time and in its sole
discretion, subject to any limitations described in the applicable Prospectus
Supplement, determine not to have any Preferred Securities represented by one or
more Global Preferred Securities, and, in such event, a Regular Trustee on
behalf of the Trust will execute and the Property Trustee will authenticate and
deliver Preferred Securities in definitive registered form, in an aggregate
stated liquidation amount equal to the principal amount of the Global Preferred
Securities representing such Preferred Securities, in exchange for such Global
Preferred Securities.
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Payment and Paying Agency
Payments in respect of the Preferred Securities will be made to the applicable
depositary, which will credit the relevant Participants' accounts on the
applicable Distribution dates or, if the Preferred Securities are not held by a
depositary, such payments will be made by check mailed to the address of the
holder entitled thereto as such address will appear on the Trust's security
register. Unless otherwise specified in the applicable Prospectus Supplement,
the paying agent for the Preferred Securities initially will be the Property
Trustee. The paying agent will be permitted to resign as paying agent upon 30
days' written notice to the Property Trustee and Atlas.
Registrar and Transfer Agent
Unless otherwise specified in the applicable Prospectus Supplement, the Property
Trustee will act as registrar and transfer agent for the Preferred Securities.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of the Trust, but the Trust may require payment of any
tax or other governmental charges that may be imposed in connection with any
transfer or exchange of Preferred Securities.
Information Concerning the Property Trustee
The Property Trustee will not be liable for any action taken, suffered or
omitted to be taken by it without negligence, in good faith and reasonably
believed by it to be authorized or within the discretion, rights or powers
conferred upon it by the Declaration. The Property Trustee will be under no
obligation to exercise any rights or powers vested in it by the Declaration at
the request or direction of any holder of Trust Securities, unless such holder
provides the Property Trustee security and indemnity, reasonably satisfactory to
the Property Trustee, against the costs and expenses and liabilities that might
be incurred by it in complying with such request or direction.
Governing Law
The Declaration and the Preferred Securities will be governed by, construed and
interpreted in accordance with the laws of the State of Delaware.
Description of the Guarantee
The following description sets forth certain general terms and provisions of the
Guarantee to which any Prospectus Supplement may relate. The particular terms
and provisions of the Guarantee and the application of these general terms and
provisions thereto will be described in the applicable Prospectus Supplement.
Pursuant to and for the purposes of compliance with the Trust Indenture Act, the
Guarantee will qualify as an indenture, and The First National Bank of Chicago
will act as trustee under the Guarantee (the "Guarantee Trustee") and hold the
Guarantee for the benefit of the holders of the Trust Securities. The following
summaries of certain terms and provisions of the Guarantee do not purport to be
complete and are subject to, and qualified in their entirety by reference to,
the form of Guarantee (including the definitions therein of certain terms) that
is filed as an exhibit to the Registration Statement, and to the Trust Indenture
Act. Capitalized terms used in this section not otherwise defined in this
Prospectus have the meanings set forth in the Guarantee.
General
To the extent set forth in the Guarantee and except to the extent paid by the
Trust, Atlas will irrevocably and unconditionally agree to pay the holders of
the Trust Securities the Guarantee Payments (as defined below), in full, as and
when due, regardless of any defense, right of set-off or counterclaim that the
Trust may have or assert. The payments subject to the Guarantee (the "Guarantee
Payments") include:
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(i) any accumulated and unpaid Distributions that are required to be
paid on the Trust Securities, to the extent the Trust has funds
available therefor;
(ii) the redemption price, including all accumulated and unpaid
Distributions to the date of redemption, with respect to the Trust
Securities upon the redemption of the Corresponding Debt Securities
if a Tax Event or Investment Company Event occurs or upon maturity
of the Corresponding Debt Securities, to the extent the Trust has
funds available therefor;
(iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (other than in connection with the
distribution of Corresponding Debt Securities to the holders in
exchange for the Trust Securities, as provided in the Declaration),
the lesser of (a) the aggregate of the stated liquidation amount and
all accumulated and unpaid Distributions on the Trust Securities to
the date of payment, to the extent the Trust has funds available
therefor, and (b) the amount of assets of the Trust remaining
available for distribution to holders of the Trust Securities in
liquidation of the Trust.
Atlas' obligation to make a Guarantee Payment may be satisfied by direct payment
of the required amounts by Atlas to the holders of Preferred Securities or by
causing the Trust to pay such amounts to such holders.
If a Trust Enforcement Event has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments will be
subordinated to the rights of holders of Preferred Securities to receive
Guarantee Payments. See "Description of the Preferred Securities--Subordination
of Common Securities."
The Guarantee will apply only to the extent the Trust has funds available to
make payments with respect to the Trust Securities. If Atlas does not make
interest payments on the Corresponding Debt Securities owned by the Trust, the
Trust will not have funds available to pay Distributions on the Preferred
Securities.
Through the Guarantee, the Corresponding Debt Securities and the Indenture,
taken together, Atlas has fully and unconditionally guaranteed all of the
Trust's obligations under the Trust Securities. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of the documents
that has the effect of providing a full and unconditional guarantee of the
Trust's obligations under the Declaration. See "Relationship Among the Preferred
Securities, the Corresponding Debt Securities and the Guarantee."
Status of the Guarantee
The Guarantee will constitute a guarantee of payment and not of collection. The
beneficiaries of the Guarantee may institute a legal proceeding directly against
Atlas to enforce its rights under the Guarantee without instituting a legal
proceeding against any other person or entity.
Certain Covenants of Atlas
Atlas will covenant that, so long as any Trust Securities remain outstanding, if
an Event of Default occurs under the Guarantee or a Trust Enforcement Event
occurs under the Declaration and written notice of such event has been given to
Atlas, then Atlas may not (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire, or make a liquidation payment with respect to any
of Atlas' capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of Atlas
that rank on a parity with or junior in interest to the Corresponding Debt
Securities or make any guarantee payments with respect to any guarantee by Atlas
of the debt securities of any subsidiary of Atlas if such guarantee ranks on a
parity with or junior in interest to the Corresponding Debt Securities (other
than (a) purchases or acquisitions of capital stock of Atlas in connection with
the satisfaction by Atlas of its obligations under any employee benefit plans or
the satisfaction by Atlas of its obligations pursuant to any contract or
security outstanding on the date of such event requiring Atlas to purchase
capital stock of Atlas, (b) as a result of a reclassification of Atlas' capital
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<PAGE> 33
stock for another class or series of Atlas' capital stock, (c) the purchase of
fractional interests in shares of Atlas' capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) dividends or distributions in capital stock of
Atlas, (e) redemptions or repurchases of any rights pursuant to a rights
agreement and (f) payments under the Guarantee).
Amendments; Assignment
Except with respect to any changes that do not adversely affect the rights of
holders of the Trust Securities in any material respect (that do not require the
consent of holders), the Guarantee may be amended only with the prior approval
of the holders of at least a majority in liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of all the outstanding Trust Securities. All guarantees and
agreements contained in the Guarantee will bind the successors, assigns,
receivers, trustees and representatives of Atlas and will inure to the benefit
of the holders of the Trust Securities then outstanding.
Events of Default
An event of default under the Guarantee will occur upon the failure of Atlas to
perform any of its payment or other obligations under the Guarantee.
The holders of a majority in stated liquidation amount of the Trust Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of the Guarantee or
to direct the exercise of any trust or power conferred upon the Guarantee
Trustee under the Guarantee. If the Guarantee Trustee fails to enforce the
Guarantee, any holder of Trust Securities may institute a legal proceeding
directly against Atlas to enforce its rights under the Guarantee, without first
instituting a legal proceeding against the Trust, the Guarantee Trustee or any
other person. Notwithstanding the foregoing, if Atlas has failed to make a
Guarantee Payment, a holder of Trust Securities may directly institute a
proceeding against Atlas for enforcement of the Guarantee for such payment.
Atlas, as guarantor, is required to file annually with the Guarantee Trustee a
certificate indicating whether or not Atlas is in compliance with all of the
conditions and obligations applicable to it under the Guarantee.
Termination
The Guarantee will terminate (i) if a Tax Event or an Investment Company Event
occurs or upon maturity of the Corresponding Debt Securities, upon full payment
of the redemption price of all of the Trust Securities, (ii) upon distribution
of the Corresponding Debt Securities held by the Trust to the holders of the
Trust Securities or (iv) upon full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Trust. The Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
holder of the Trust Securities must return payment of any sums paid under the
Trust Securities or the Guarantee.
Information Concerning the Guarantee Trustee
The Guarantee Trustee, prior to the occurrence of a default with respect to the
Guarantee, will undertake to perform only those duties specifically set forth in
the Guarantee and, after a default that has not been cured or waived, will
exercise the same degree of care as a prudent individual would exercise in the
conduct of his or her own affairs. Subject to such provisions, the Guarantee
Trustee will be under no obligation to exercise any of the rights or powers
vested in it by the Guarantee at the request or direction of any holder of the
Trust Securities, unless such holder provides the Guarantee Trustee security and
indemnity, reasonably satisfactory to the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of the
Guarantee Trustee's agents, nominees or custodians) and liabilities that might
be incurred thereby. The foregoing will not relieve the Guarantee Trustee, upon
the occurrence of an event of default under the Guarantee, of its obligation to
exercise the rights and powers vested in it by the Guarantee.
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Governing Law
The Guarantee will be governed by, construed and interpreted in accordance with
the laws of the State of New York.
Relationship Among The Preferred Securities,
The Corresponding Debt Securities And The Guarantee
To the extent set forth in the Guarantee and to the extent funds are available,
Atlas will irrevocably guarantee the payment of Distributions and other amounts
due on the Trust Securities. See "Description of the Guarantee." If and to the
extent Atlas does not make payments on the Corresponding Debt Securities, the
Trust will not have sufficient funds to pay Distributions or other amounts due
on the Trust Securities. The Guarantee does not cover any payment of
Distributions or other amounts due on the Trust Securities unless the Trust has
sufficient funds for the payment of such Distributions or other amounts. In such
event, a holder of Trust Securities may institute a legal proceeding directly
against Atlas to enforce payment of such Distributions or other amounts to such
holder after the respective due dates. Taken together, Atlas' obligations under
the Corresponding Debt Securities, the Indenture and the Guarantee provide a
full and unconditional guarantee of payments of Distributions and other amounts
due on the Trust Securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that provides a
full and unconditional guarantee of the Trust's obligations under the Trust
Securities.
Sufficiency of Payments
As long as payments of interest and other amounts are made when due on the
Corresponding Debt Securities, such payments will be sufficient to cover
Distributions and payments due on the Trust Securities because of the following
factors: (i) the aggregate principal amount of the Corresponding Debt Securities
will be equal to the sum of the aggregate stated liquidation amount of the Trust
Securities; (ii) the interest rate and the interest and other payment dates on
the Corresponding Debt Securities will match the distribution rate and
distribution and other payment dates for the Trust Securities; (iii) Atlas, as
issuer of the Corresponding Debt Securities, will pay, and the Trust will not be
obligated to pay, directly or indirectly, all costs, expenses, debts and
obligations of the Trust (other than with respect to the Trust Securities); and
(iv) the Declaration further provides that the Trust will not engage in any
activity that is not consistent with the limited purposes of the Trust.
Notwithstanding anything to the contrary in the Indenture, Atlas has the right
to set-off any payment it is otherwise required to make thereunder against and
to the extent it has already made, or is concurrently on the date of such
payment making, a related payment under the Guarantee.
Enforcement Rights of Holders of Preferred Securities
The Declaration provides that if Atlas fails to make interest or other payments
on the Corresponding Debt Securities when due (taking account of any Extension
Period), the holders of the Preferred Securities may direct the Property Trustee
to enforce its rights under the Indenture. See "Description of Preferred
Securities-- Voting Rights; Amendment of Declaration." If the Property Trustee
fails to enforce its rights under the Indenture in respect of an Indenture Event
of Default, any holder of record of Preferred Securities may, to the fullest
extent permitted by applicable law, institute a legal proceeding against Atlas
to enforce the Property Trustee's rights under the Indenture without first
instituting any legal proceeding against the Property Trustee or any other
person or entity. Notwithstanding the foregoing, if a Trust Enforcement Event
has occurred and is continuing and such event is attributable to the failure of
Atlas to pay interest or principal on the Corresponding Debt Securities on the
date such interest or principal is otherwise payable, then a holder of Preferred
Securities may institute a Direct Action against Atlas for payment.
If Atlas fails to make payments under the Guarantee, a holder of Preferred
Securities may institute a proceeding directly against Atlas for enforcement of
the Guarantee for such payments.
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Limited Purpose of Trust
The Preferred Securities evidence undivided beneficial ownership interests in
the Trust, and the Trust exists for the sole purpose of issuing and selling the
Trust Securities and using the proceeds to purchase Corresponding Debt
Securities. A principal difference between the rights of a holder of Preferred
Securities and a holder of Corresponding Debt Securities is that a holder of
Corresponding Debt Securities is entitled to receive from Atlas the principal
amount of and interest accrued on Corresponding Debt Securities held, while a
holder of Preferred Securities is entitled to receive Distributions and other
payments from the Trust (or from Atlas under the Guarantee) only if and to the
extent the Trust has funds available for the payment of such Distributions and
other payments.
Rights Upon Dissolution
Upon any voluntary or involuntary dissolution, winding-up or liquidation of the
Trust involving the redemption or repayment of the Corresponding Debt
Securities, the holders of the Trust Securities will be entitled to receive, out
of assets held by the Trust, subject to the rights of creditors of the Trust, if
any, the Liquidation Distribution in cash. Because Atlas is the guarantor under
the Guarantee and, as issuer of the Corresponding Debt Securities, has agreed to
pay for all costs, expenses and liabilities of the Trust (other than the Trust's
obligations to the holders of the Trust Securities), the positions of a holder
of Trust Securities and a holder of the Corresponding Debt Securities relative
to other creditors and to shareholders of Atlas in the event of liquidation or
bankruptcy of Atlas would be substantially the same.
Description of Stock Purchase Contracts and Stock Purchase Units
Unless otherwise specified in the applicable Prospectus Supplement, the Company
may issue Stock Purchase Contracts, including contracts obligating holders to
purchase from the Company, and the Company to sell to the holders, a specified
number of shares of Common Stock or Preferred Stock at a future date or dates.
The consideration per share of Common Stock or Preferred Stock may be fixed at
the time the Stock Purchase Contracts are issued or may be determined by a
specific reference to a formula set forth in the Stock Purchase Contracts. The
Stock Purchase Contracts may be issued separately or as part of Units ("Stock
Purchase Units") consisting of a Stock Purchase Contract and either (x) Senior
Debt Securities or Subordinated Debt Securities, (y) debt obligations of third
parties, including U.S. Treasury securities, or (z)Preferred Securities of an
Atlas Trust, securing the holder's obligation to purchase the Common or
Preferred Stock under the Stock Purchase Contracts. The Stock Purchase Contracts
may require the Company to make periodic payments to the holders of the Stock
Purchase Units or vice versa, and such payments may be unsecured or prefunded on
some basis. The Stock Purchase Contracts may require holders to secure their
obligations thereunder in a specified manner and in certain circumstances Atlas
may deliver newly issued prepaid stock purchase contracts ("Prepaid Securities")
upon release to a holder of any collateral securing such holder's under the
original Stock Purchase Contract.
Pledged Securities and Pledge Agreement. The securities related to the Stock
Purchase Contracts (collectively, the "Pledged Securities") will be pledged to a
collateral agent (the "Collateral Agent"), for the benefit of Atlas, pursuant to
the Pledge Agreement to secure the obligations of holders of Stock Purchase
Contracts to purchase Common Stock or Preferred Stock under the related Stock
Purchase Contracts. The rights of holders of Stock Purchase Contracts to the
related Pledged Securities will be subject to the Company's security interest
created by the Pledge Agreement. No holder of Stock Purchase Contracts will be
permitted to withdraw the Pledged Securities related to such Stock Purchase
Contracts from the pledge arrangement except upon the termination or Early
Settlement of the related Stock Purchase Contracts. Subject to such security
interest and the terms of the Purchase Contract Agreement and the Pledge
Agreement, each holder of a Stock Purchase Contract will retain full beneficial
ownership of the related Pledged Securities.
Except as described in the applicable Prospectus Supplement, the Collateral
Agent will, upon receipt of distributions on the Pledged Securities, distribute
such payments to Atlas or the Purchase Contract Agent, as provided in
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the Pledge Agreement. The Purchase Contract Agent will in turn distribute
payments it receives as provided in the Purchase Contract Agreement.
The applicable Prospectus Supplement will describe the terms of any Stock
Purchase Contracts or Stock Purchase Units and, if applicable, Prepaid
Securities. The description in the Prospectus Supplement will not necessarily be
complete and will be qualified in its entirety by reference to the Stock
Purchase Contracts, and, if applicable, collateral arrangements and depositary
arrangements, relating to such Stock Purchase Contracts or Stock Purchase Units
and, if applicable, Prepaid Securities and the document pursuant to which such
Prepaid Securities will be issued.
Selling Stockholders
Some of the shares of Common Stock being offered pursuant to this Prospectus
directly or pursuant to Stock Purchase Contracts may be offered by certain
Selling Stockholders, including Michael A. Chowdry, the Chairman, Chief
Executive Officer and President of the Company, and certain other officers of
the Company. Identification of any such selling stockholder will be made in the
applicable Prospectus Supplement.
Plan of Distribution
The Company and the Atlas Trusts (and with respect to shares of Common Stock,
the selling stockholders) may sell the Securities to or through one or more
underwriters or dealers or may sell the Securities directly to other purchasers
or through agents.
The distribution of the Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
In connection with the sale of the Securities, underwriters or agents may
receive compensation from the Company or from purchasers of the Securities for
whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell the Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that participate
in the distribution of the Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of the Securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the applicable Prospectus Supplement.
Under agreements which may be entered into by the Company and the Atlas Trusts,
underwriters and agents who participate in the distribution of the Securities
may be entitled to indemnification by the Company against liabilities, including
liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase the Securities from the
Company or the Atlas Trusts pursuant to contracts providing for payment and
delivery on a future date. Institutions with which such contracts may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but in
all cases such institutions must be approved by the Company. The obligations of
any purchaser under any such contract will be subject to the condition that the
purchase of the Securities being offered is not at the time of delivery
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such other agents will not have any responsibility
in respect of the validity or performance of such contracts.
Unless otherwise indicated in the applicable Prospectus Supplement, Atlas does
not intend to apply for the listing of any Debt Securities on a national
securities exchange. If any Securities are sold to or through underwrit-
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ers, dealers or agents, the underwriters, dealers or agents may make a market in
such Securities, as permitted by applicable laws and regulations. No
underwriter, dealer or agent would be obligated, however, to make a market in
such Securities, and any such market-making could be discontinued at any time at
the sole discretion of the underwriter, dealer or agent. Accordingly, no
assurance can be given as to the liquidity of, or trading markets for, such
Securities.
Certain of the underwritings or agents and their associates may be customers of,
engage in transactions with, and perform services for, the Company in the
ordinary course of business.
Validity of the Securities
Unless otherwise indicated in the applicable Prospectus Supplement (i) the
validity of the Securities of Atlas offered hereby will be passed upon for the
Company by Cahill Gordon & Reindel (a partnership including a professional
corporation), New York, New York and (ii) the validity of the Preferred
Securities offered hereby will be passed upon for the Atlas Trusts and the
Company by Richards, Layton & Finger, P.A. Wilmington, Delaware.
Experts
The consolidated financial statements incorporated by reference in this
Prospectus and elsewhere in the Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated herein in reliance upon the
authority of said firm as experts in giving said report.
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/R>
PROSPECTUS
Atlas Air, Inc.
PASS THROUGH CERTIFICATES
---------------
This Prospectus relates to the issuance of Pass Through Certificates (the
"Certificates") by one or more Pass Through Trusts (each, a "Trust") to be
formed by Atlas Air, Inc. ("Atlas" or the "Company").
THE CERTIFICATES --
- -- Will be issued in one or more series with distribution rates and
distribution dates specified in the Prospectus Supplement;
- -- Will represent interests in the relevant Pass Through Trust only and will
be repaid only from the assets of that Trust, and will not represent
obligations of, or be guaranteed by, Atlas;
- -- May have one or more forms of liquidity enhancement;
- -- Will be issued in registered form;
- -- May be issued in accordance with a book-entry system; and
- -- Will have an aggregate public offering price of up to $650,000,000.
EACH PASS THROUGH TRUST --
- -- Will issue one or more series of Certificates;
- -- Will use the proceeds of each series of Certificates to purchase Equipment
Notes of one or more series, each with an interest rate equal to the rate
on that series of Certificates and with a maturity date on or prior to the
final distribution date for that series of Certificates; and
- -- Will pass through principal and interest paid on the Equipment Notes that
it owns, subject to any applicable subordination provisions.
THE EQUIPMENT NOTES --
- -- Will be issued in series.
- -- Will be issued either
-- on a non-recourse basis in connection with leveraged lease
transactions to finance or refinance a portion of the cost of
aircraft (such aircraft referred to as "Leased Aircraft"), in which
case the amounts due from Atlas under the relevant Lease will be
sufficient to make all payments required under the related Equipment
Notes; or
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-- with recourse to Atlas either to finance or refinance all or a
portion of the cost of aircraft owned by Atlas ("Owned Aircraft").
- -- These two types of Equipment Notes are referred to as Leased Aircraft
Notes and Owned Aircraft Notes, respectively. The Leased Aircraft Notes
will not be obligations of, or guaranteed by, Atlas. The Owned Aircraft
Notes will be general obligations of Atlas.
- -- Will be secured by the aircraft specified in the Prospectus Supplement
and, in the case of any Leased Aircraft, by the interest of the lessor in
that lease.
This Prospectus is accompanied by a Prospectus Supplement which includes
additional information as to the particular series of Certificates being sold
and the underlying Equipment Notes. Sales of Certificates may not be consummated
without both this Prospectus and a Prospectus Supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined that this Prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
May 7, 1999
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Table of Contents
Page
----
Where You Can Find More
Information...................... 1
Incorporation of Certain Docu-
ments by Reference.............. 1
The Company....................... 2
General Outline Of Trust
Structure........................ 2
Use of Proceeds................... 2
Risk Factors...................... 3
Ratio of Earnings to Fixed
Charges.......................... 4
Description of the Certificates... 5
Description of the Equipment
Notes............................ 15
Certain United States Federal
Income Tax Consequences.......... 20
ERISA Considerations.............. 23
Plan of Distribution.............. 23
Validity of the Certificates...... 24
Experts........................... 24
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Where You Can Find More Information
We filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (herein, together with all amendments and
exhibits, referred to as the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the Certificates to
be offered. This Prospectus, which forms a part of the Registration Statement,
does not contain all of the information set forth in the Registration Statement
and the exhibits and schedules thereto, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For more
information about the Company and the Certificates to be offered by this
Prospectus, reference is made to the Registration Statement and its exhibits and
schedules. Any statement made in this Prospectus concerning the provisions of
certain documents may be incomplete and, in each instance, reference is made to
the copy of such document filed as an exhibit to the Registration Statement
otherwise filed with the Commission.
We file annual, quarterly and special reports, proxy statements and other
information with the Commission. The Registration Statement, its exhibits and
such reports, proxy statements and other information can be inspected and copied
at the public reference facilities maintained by the Commission at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following
Regional Offices of the Commission: New York Regional Office, Seven World Trade
Center, 13th Floor, New York, New York 10048; and Chicago Regional Office,
Citicorp Center, 500 West Madison Street, 14th Floor, Chicago, Illinois 60601.
Copies of such material can be obtained from the Public Reference Section of the
Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission also maintains an Internet Web Site at
http://www.sec.gov that contains reports and other information. Our Common Stock
is traded on the New York Stock Exchange under the symbol "CGO" and reports,
proxy statements and other information concerning the Company can be inspected
at the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
Incorporation of Certain Documents by Reference
The following documents have been filed by the Company with the Commission under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, and
2. The Company's Current Report on Form 8-K dated April 26, 1999.
All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act: (1) subsequent to the initial filing of this Prospectus and prior
to the date it is declared effective; and (2) subsequent to the date of this
Prospectus and prior to the termination of this offering are incorporated by
reference and become a part of this Prospectus from their date of filing. Any
statement contained in this Prospectus or in a document incorporated by
reference is modified or superseded for purposes of this Prospectus to the
extent that a statement contained in any such document modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
On request, we will provide anyone who receives a copy of this Prospectus with a
copy of any or all of the documents incorporated in this Prospectus by
reference. Written or telephone requests for such copies should be directed to
our principal office: Atlas Air, Inc., 538 Commons Drive, Golden, Colorado
80401, Attention: Chief Financial Officer (telephone (303) 526-5050).
You should rely only on the information incorporated by reference or provided in
this Prospectus or any Prospectus Supplement. We have not authorized anyone else
to provide you with different information. We are not making an offer of the
Securities in any state where the offer is not permitted. You should not assume
that the information in this Prospectus or any Prospectus Supplement is accurate
as of any date other than the date on the front of those documents.
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The Company
We are the world's largest air cargo outsourcer, with an all Boeing fleet of 747
freighter aircraft that comply with Stage 3 FAA noise regulations. We provide
reliable airport-to-airport cargo transportation services throughout the world
to major international air carriers generally under three- to five-year
fixed-rate U.S. dollar denominated contracts which typically require that we
supply aircraft, crew, maintenance and insurance. Our customers currently
include some of the world's leading air carriers, including Alitalia, British
Airways and China Airlines Ltd. We provide efficient, cost effective service to
our customers primarily as a result of our productive work force, the
outsourcing of a significant part of our regular maintenance work on a long-term
fixed-cost contractual basis and the advantageous cost economies realized in the
operation of our fleet, comprised solely of Boeing 747 aircraft which are
configured for service in long-haul cargo operations.
Atlas is incorporated under the laws of the State of Delaware. Our principal
executive offices are located at 538 Commons Drive, Golden, Colorado 80401, and
our telephone number is (303) 526-5050.
General Outline of Trust Structure
A separate Trust will be formed for each series of Certificates to be offered
pursuant to a Pass Through Trust Agreement (the "Basic Agreement") and one or
more supplements thereto (each, a "Trust Supplement") between Atlas and the
trustee named therein (the "Trustee"), as trustee under each Trust. Concurrently
with the execution and delivery of each Trust Supplement, the Trustee, on behalf
of the Trust formed thereby, will enter into one or more purchase or refunding
agreements (each such agreement being herein referred to as a "Note Purchase
Agreement") pursuant to which it will agree to purchase one or more equipment
notes ("Equipment Notes") relating to one or more of the Aircraft described in
the applicable Prospectus Supplement. Pursuant to the applicable Note Purchase
Agreement or Note Purchase Agreements, the Trustee, on behalf of each Trust,
will purchase Equipment Notes of one or more series such that the Equipment
Notes that constitute the property of such Trust will have identical interest
rates (in each case equal to the rate applicable to the Certificates issued by
such Trust) and identical priority of payment relative to each of the other
Equipment Notes issued under the Related Indentures (as defined below). The
maturity dates of the Equipment Notes acquired by each Trust will occur on or
before the final distribution date applicable to the Certificates that will be
issued by such Trust. The Trustee will distribute the amount of payments of
principal, premium, if any, and interest received by it as holder of the
Equipment Notes to the registered holders of Certificates of the Trust (the
"Certificateholders") in which such Equipment Notes are held, subject to the
effect of any cross-subordination provisions described in the Prospectus
Supplement for a series of Certificates. To the extent that the proceeds of any
offering of Certificates are not used to purchase Equipment Notes on the date of
issuance of such Certificates, such proceeds will be held for the benefit of the
holders of such Certificates. If any such proceeds are not subsequently utilized
to purchase Equipment Notes by the relevant date specified in the applicable
Prospectus Supplement, such proceeds will be returned to the holders of such
Certificates. See "Description of the Certificates" and "Description of the
Equipment Notes".
Use of Proceeds
Except as otherwise provided in the applicable Prospectus Supplement for a
specific offering of Certificates, the Certificates will be issued in order to
(a) finance or refinance the debt portion and, in certain cases, refinance some
of the equity portion of one or more separate leveraged Lease transactions
entered into by Atlas, as lessee, with respect to the Leased Aircraft, as
described in the applicable Prospectus Supplement, or (b) finance or refinance
the aggregate purchase price in respect of the Owned Aircraft as described in
the applicable Prospectus Supplement. Except as otherwise provided in the
applicable Prospectus Supplement for a specific offering of Certificates, the
proceeds from the sale of the Certificates will be used by the Trustee on behalf
of the applicable Trust or Trusts to purchase either (a) Leased Aircraft Notes
issued by the respective Owner Trustee or Owner Trustees to finance or refinance
(as specified in the applicable Prospectus Supplement) the related Leased
Aircraft, or (b) Owned Aircraft Notes issued by Atlas to finance or refinance
(as specified in the applicable Prospectus Supplement) the related Owned
Aircraft. To the extent that the proceeds of any offering of Certificates
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<PAGE> 43
are not used to purchase Equipment Notes on the date of issuance of such
Certificates, such proceeds will be held for the benefit of the holders of such
Certificates. If any such proceeds are not subsequently utilized to purchase
Equipment Notes by the relevant date specified in the applicable Prospectus
Supplement, such proceeds will be returned to the holders of such Certificates.
See "Description of Certificates -- Delayed Purchase of Equipment Notes".
The Leased Aircraft Notes will be issued under separate trust indentures (the
"Leased Aircraft Indentures") between a bank, trust company or other institution
specified in the related Prospectus Supplement, as trustee thereunder (in such
capacity, herein referred to as the "Loan Trustee"), and an institution
specified in the related Prospectus Supplement acting, not in its individual
capacity, but solely as owner trustee (an "Owner Trustee") of a separate trust
for the benefit of one or more institutional investors (each, an "Owner
Participant"). With respect to each Leased Aircraft, the related Owner
Participant will have provided or will provide from sources other than the
Leased Aircraft Notes a portion of the equipment cost of the related Leased
Aircraft. No Owner Participant, however, will be personally liable for any
amount payable under the related Leased Aircraft Indenture or the Leased
Aircraft Notes issued thereunder. Each Leased Aircraft will have been or will be
leased by the related Owner Trustee to Atlas pursuant to a separate lease
agreement (each such lease agreement, a "Lease"). The Owned Aircraft Notes will
be issued under separate trust indentures (the "Owned Aircraft Indentures" and,
together with any Leased Aircraft Indentures, the "Indentures") between the
applicable Loan Trustee and Atlas.
Risk Factors
In addition to the information set forth elsewhere in this Prospectus and the
applicable Prospectus Supplement, prospective purchasers of the Certificates
offered hereby should consider carefully the factors set forth below in
connection with an investment in Certificates as well as the risk factors
incorporated by reference in this Prospectus.
Appraisals and Realizable Value of Aircraft
The Prospectus Supplement will contain the appraised value of each Aircraft
based upon the lesser of the average and the median value of such Aircraft as
appraised by independent appraisers who will be named in the applicable
Prospectus Supplement (the "Appraisals") and whose report will be contained
therein. The Appraisals will be based on various assumptions and methodologies,
which vary among the Appraisals.
Appraisals based on different assumptions or methodologies may result in
valuations that are significantly different from those contained in the
Appraisals. An appraisal is only an estimate of value and should not be relied
upon as a measure of realizable value. The proceeds realized upon the sale of
any Aircraft may be less than the appraised value thereof. In addition, the
value of the Aircraft in the event of the exercise of remedies under the related
Indenture will depend on market and economic conditions at the time, the
availability of buyers, the condition of the Aircraft, whether the Aircraft are
sold separately or as a block and other factors. Accordingly, there can be no
assurance that the proceeds realized upon any such exercise with respect to the
Certificates and the Aircraft pursuant to the related Indenture will be as
appraised or sufficient to satisfy in full payments due on the Certificates
issued thereunder.
The Certificates are not cross-collateralized and, consequently, liquidation
proceeds from the sale of an Aircraft in excess of the principal amount of the
Certificates related to such Aircraft will not be available to cover losses, if
any, on any other Certificates.
Priority of Distributions; Subordination
The Intercreditor Agreement may provide for the subordination of some series of
Certificates to other series, which may result in the holders of the
subordinated Certificates receiving less than the full amount due to them after
the occurrence of a payment default under any Equipment Note.
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<PAGE> 44
Lack of Cross-Collateralization and Cross-Default Provisions
There will be no cross-collateralization provisions in the Indentures and
consequently the Certificates issued in respect of one Aircraft will be secured
only by that Aircraft and will not be secured by any other Aircraft or the
Leases related to such other Aircraft. There will be no cross-default provisions
in the Indentures and consequently events resulting in an Indenture Event of
Default under any particular Indenture may not result in an Indenture Event of
Default occurring under any other Indenture.
Ratings of the Certificates
It is expected that the Certificates will be assigned a rating by one or more
Rating Agencies. Such rating or ratings will be set forth in the Prospectus
Supplement applicable to the Certificates being sold. A rating is not a
recommendation to purchase, hold or sell Certificates, inasmuch as such rating
does not address market price or suitability for a particular investor. There is
no assurance that a rating will remain for any given period of time or that a
rating will not be lowered or withdrawn entirely by a Rating Agency if in its
judgment circumstances in the future (including the downgrading of the Company)
so warrant. The rating of the Certificates will be based primarily on the
default risk of the Certificates and the collateral value provided by the
Aircraft. The ratings are expected to address the likelihood of timely payment
of interest (at the non-default rate) when due on the Certificates and the
ultimate payment of principal of the Certificates on the final expected
distribution date. Such ratings are not expected to address the possibility of a
Lease Event of Default or Indenture Event of Default or other circumstances
(such as an Event of Loss) which may result in the payment of the outstanding
principal amount of the Certificates prior to such final expected distribution
date.
Unless specified in the applicable Prospectus Supplement, the reduction,
suspension or withdrawal of the ratings of the Certificates will not, in and of
itself, constitute an Indenture Event of Default.
Highly Leveraged Transaction
The Indentures contain no debt covenants or provisions that would afford the
Holders protection in the event of a highly leveraged transaction involving the
Company.
Absence of a Public Market for the Certificates
Prior to their issuance, there will have been no public market for the
Certificates of any Series and there can be no assurance that one will develop.
Unless otherwise indicated in the applicable Prospectus Supplement, the Company
does not intend to apply for the listing of any Certificates on a national
securities exchange. There can be no assurance as to the liquidity of the public
market for the Certificates or that any active public market for the
Certificates will develop or continue. If an active public market does not
develop or continue, the market price and liquidity of the Certificates may be
adversely affected.
Ratio of Earnings to Fixed Charges
The ratio of earnings to fixed charges represents the number of times that fixed
charges were covered by earnings. For purposes of computing the ratio of
earnings to fixed charges, "earnings" consists of income (loss) prior to income
tax benefit (expense), as adjusted to exclude the "Write-off of capital
investment and other" in the second quarter of 1997, and fixed charges
(excluding capitalized interest for the period). "Fixed charges" consist of
interest expense (including amounts capitalized), amortization of debt issuance
costs and one-third of rental payments on operating leases (such one-third
portion having been deemed by us to represent the interest portion of such
payments). The table below presents the ratio of earnings to fixed charges for
the years ended December 31, 1994, 1995, 1996, 1997 and 1998.
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<PAGE> 45
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------
1994 1995 1996 1997 1998
------ ------ ------ ------ ------
<S> <C> <C> <C> <C>
1.21 1.86 2.11 1.30 1.34
</TABLE>
Description of the Certificates
In connection with each offering of Certificates, one or more separate Trusts
will be formed and one or more series of Certificates will be issued pursuant to
the Basic Agreement and one or more separate Trust Supplements to be entered
into between Atlas and the Trustee. The statements made under this caption are
summaries and reference is made to the detailed provisions of the Basic
Agreement, the form of which has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The summaries relate to the Basic
Agreement and each of the Trust Supplements, the Trusts to be formed thereby and
the Certificates to be issued by each Trust except to the extent, if any,
described in the applicable Prospectus Supplement. The Prospectus Supplement
that accompanies this Prospectus contains a glossary of the material terms used
with respect to the specific series of Certificates being offered thereby. The
Trust Supplement relating to each series of Certificates and the forms of the
related Note Purchase Agreement, Indenture, Lease, trust agreement,
Participation Agreement, intercreditor agreement and liquidity facility
arrangement, as applicable, will be filed as exhibits to a post-effective
amendment to the Registration Statement of which this Prospectus is a part, a
Current Report on Form 8-K, a Quarterly Report on Form 10-Q or an Annual Report
on Form 10-K, as applicable, filed by Atlas with the Commission.
The Certificates offered pursuant to this Prospectus will be limited to
$650,000,000 aggregate public offering price.
To the extent that any provision in any Prospectus Supplement is inconsistent
with any provision in this summary, the provision of such Prospectus Supplement
will control.
General
Each Certificate will represent a fractional undivided interest in the Trust
created by the Trust Supplement pursuant to which such Certificate was issued
and all payments and distributions shall be made only from the related Trust
Property (as defined below). The property of each Trust (the "Trust Property")
will include (i) the Equipment Notes held in such Trust and all monies at any
time paid thereon and all monies due and to become due thereunder, subject to
the effect of any cross-subordination provisions described in the Prospectus
Supplement for a series of Certificates, (ii) funds from time to time deposited
with the Trustee in accounts relating to such Trust and (iii) if so specified in
the Prospectus Supplement related to a series of Certificates, rights under
intercreditor agreements relating to cross-subordination arrangements and monies
receivable under a liquidity facility. Each Certificate will represent a pro
rata share of the outstanding principal amount of the Equipment Notes held in
the related Trust and, unless otherwise specified in the applicable Prospectus
Supplement, will be issued in minimum denominations of $1,000 or any integral
multiple thereof except that one Certificate of each series may be issued in a
different denomination. The Certificates do not represent an interest in or
obligation of Atlas, the Trustee, any of the Loan Trustees or Owner Trustees in
their individual capacities, any Owner Participant, or any affiliate of any
thereof. Each Certificateholder by its acceptance of a Certificate agrees to
look solely to the income and proceeds from the Trust Property as provided in
the Basic Agreement and the applicable Trust Supplement.
The Equipment Notes issued under an Indenture may be held in more than one Trust
and one Trust may hold Equipment Notes issued under more than one Indenture
(each Indenture the Equipment Notes of which are held in a Trust, a "Related
Indenture"). Unless otherwise provided in a Prospectus Supplement, only
Equipment Notes having the same priority of payment (the Equipment Notes of any
such priority, a "Class") may be held in the same Trust.
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<PAGE> 46
Interest will be passed through to Certificateholders of each Trust at the rate
per annum payable on the Equipment Notes held in such Trust, as set forth for
such Trust on the cover page of the applicable Prospectus Supplement, subject to
the effect of any cross-subordination provisions described in the Prospectus
Supplement for a series of Certificates.
Reference is made to the Prospectus Supplement that accompanies this Prospectus
for a description of the specific series of Certificates being offered thereby,
including (1) the specific designation and title of such Certificates; (2) the
Regular Distribution Dates (as defined below) and Special Distribution Dates (as
defined below) applicable to such Certificates; (3) the currency or currencies
(including currency units) in which such Certificates may be denominated; (4)
the specific form of such Certificates, including whether or not such
Certificates are to be issued in accordance with a book-entry system; (5) a
description of the Equipment Notes to be purchased by such Trust, including (a)
the period or periods within which, the price or prices at which, and the terms
and conditions upon which such Equipment Notes may or must be redeemed or
defeased in whole or in part, by Atlas or, with respect to Leased Aircraft
Notes, the Owner Trustee, (b) the payment priority of such Equipment Notes in
relation to any other Equipment Notes issued with respect to the related
Aircraft, (c) any additional security or liquidity enhancements therefor and (d)
any intercreditor or other rights or limitations between or among the holders of
Equipment Notes of different priorities issued with respect to the same
Aircraft; (6) a description of the related Aircraft; (7) a description of the
related Note Purchase Agreement and Related Indentures, including a description
of the events of default under the Related Indentures, the remedies exercisable
upon the occurrence of such events of default and any limitations on the
exercise of such remedies with respect to such Equipment Notes; (8) if such
Certificates relate to Leased Aircraft, a description of the related Leases,
Trust Agreements and Participation Agreements, including (a) the names of the
related Owner Trustees, (b) a description of the events of default under the
related Leases, the remedies exercisable upon the occurrence of such events of
default and any limitations on the exercise of such remedies with respect to
such Leased Aircraft Notes, and (c) the rights of the related Owner Trustee, if
any, and/or Owner Participant, if any, to cure failures of Atlas to pay rent
under the related Lease; (9) the extent, if any, to which the provisions of the
operative documents applicable to such Equipment Notes may be amended by the
parties thereto without the consent of the holders of, or only upon the consent
of the holders of a specified percentage of aggregate principal amount of, such
Equipment Notes; (10) cross-default or cross-collateralization provisions in the
Related Indentures, if any; (11) subordination provisions among the holders of
Certificates, including any cross-subordination provisions among the holders of
Certificates in separate Trusts; and (12) any other special terms pertaining to
such Certificates.
If any Certificates are denominated in one or more foreign currencies or
currency units, the restrictions, certain United States federal income tax
considerations, specific terms and other information with respect to such
Certificates and such foreign currency or currency units will be set forth in
the applicable Prospectus Supplement.
Book-Entry Registration
General
If specified in the applicable Prospectus Supplement, the Certificates will be
subject to the provisions described below and under the caption "-- Definitive
Certificates". Upon issuance, each series of Certificates will be represented by
one or more fully registered global certificates. Unless otherwise provided in a
Prospectus Supplement, each global certificate will be deposited with, or on
behalf of, The Depository Trust Company ("DTC") and registered in the name of
Cede & Co. ("Cede"), the nominee of DTC. No person acquiring an interest in such
Certificates ("Certificate Owner") will be entitled to receive a certificate
representing such person's interest in such Certificates, except as set forth
below under "-- Definitive Certificates". Unless and until Definitive
Certificates are issued under the limited circumstances described herein, all
references to actions by Certificateholders shall refer to actions taken by DTC
upon instructions from DTC Participants (as defined below), and all references
herein to distributions, notices, reports and statements to Certificateholders
shall refer, as the case
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<PAGE> 47
may be, to distributions, notices, reports and statements to DTC or Cede, as the
registered holder of such Certificates, or to DTC Participants for distribution
to Certificate Owners in accordance with DTC procedures.
DTC is a limited purpose trust company organized under the laws of the State of
New York, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code and a "clearing
agency" registered pursuant to section 17A of the Exchange Act. DTC was created
to hold securities for its participants ("DTC Participants") and to facilitate
the clearance and settlement of securities transactions between DTC Participants
through electronic book-entries, thereby eliminating the need for physical
transfer of certificates. DTC Participants include securities brokers and
dealers, banks, trust companies and clearing corporations. Indirect access to
the DTC system also is available to others such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial relationship with DTC
Participant either directly or indirectly ("Indirect Participants").
Certificate Owners that are not DTC Participants or Indirect Participants but
desire to purchase, sell or otherwise transfer ownership of, or other interests
in, the Certificates may do so only through DTC Participants and Indirect
Participants. In addition, Certificate Owners will receive all distributions of
principal and interest from the Trustee through DTC Participants or Indirect
Participants, as the case may be. Under a book-entry format, Certificate Owners
may experience some delay in their receipt of payments, because such payments
will be forwarded by the Trustee to Cede, as nominee for DTC. DTC will forward
such payments in same-day funds to DTC Participants who are credited with
ownership of the Certificates in amounts proportionate to the principal amount
of each such DTC Participant's respective holdings of beneficial interests in
the Certificates. DTC Participants will thereafter forward payments to Indirect
Participants or Certificate Owners, as the case may be, in accordance with
customary industry practices. The forwarding of such distributions to the
Certificate Owners will be the responsibility of such DTC Participants. Unless
and until the Definitive Certificates are issued under the limited circumstances
described herein, the only "Certificateholder" will be Cede, as nominee of DTC.
Certificate Owners will not be recognized by the Trustee as Certificateholders,
as such term is used in the Basic Agreement, and Certificate Owners will be
permitted to exercise the rights of Certificateholders only indirectly through
DTC and DTC Participants.
Under the rules, regulations and procedures creating and affecting DTC and its
operations (the "Rules"), DTC is required to make book-entry transfers of the
Certificates among DTC Participants on whose behalf it acts with respect to the
Certificates and to receive and transmit distributions of principal, premium, if
any, and interest with respect to the Certificates. DTC Participants and
Indirect Participants with which Certificate Owners have accounts with respect
to the Certificates similarly are required to make book-entry transfers and
receive and transmit such payments on behalf of their respective customers.
Accordingly, although Certificate owners will not possess the Certificates, the
Rules provide a mechanism by which Certificate Owners will receive payments and
will be able to transfer their interests.
Because DTC can only act on behalf of DTC Participants, who in turn act on
behalf of Indirect Participants, the ability of a Certificate Owner to pledge
the Certificates to persons or entities that do not participate in the DTC
system, or to otherwise act with respect to such Certificates, may be limited
due to the lack of a physical certificate for such Certificates.
DTC will take any action permitted to be taken by a Certificateholder under the
Basic Agreement only at the direction of one or more DTC Participants to whose
accounts with DTC the Certificates are credited. Additionally, in the event any
action requires approval by Certificateholders of a certain percentage of
beneficial interest in each Trust, DTC will take such action only at the
direction of and on behalf of DTC Participants whose holdings include undivided
interests that satisfy any such percentage. DTC may take conflicting actions
with respect to other undivided interests to the extent that such actions are
taken on behalf of DTC Participants whose holdings include such undivided
interests.
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<PAGE> 48
Neither Atlas nor the Trustee will have any liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Certificates held by Cede, as nominee for DTC, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The applicable Prospectus Supplement will specify any additional book-entry
registration procedures applicable to Certificates denominated in a currency
other than United States dollars.
Same-Day Settlement and Payment
So long as the Certificates are registered in the name of DTC or its nominee,
all payments made by Atlas to the Loan Trustee under any Lease or any Owned
Aircraft Indenture will be in immediately available funds. Such payments,
including the final distribution of principal with respect to the Certificates
of any Trust, will be passed through to DTC in immediately available funds.
Any Certificates registered in the name of DTC or its nominee, will trade in
DTC's Same-Day Funds Settlement System until maturity, and secondary market
trading activity in the Certificates will therefrom be required by DTC to settle
in immediately available funds. No assurance can be given as to the effect, if
any, of settlement in same-day funds on trading activity in the Certificates.
Definitive Certificates
Certificates will be issued in certificated form ("Definitive Certificates") to
Certificate Owners or their nominees, rather than to DTC or its nominee, only if
(i) Atlas advises the Trustee in writing that DTC is no longer willing or able
to discharge properly its responsibilities as depository with respect to such
Certificates and Atlas is unable to locate a qualified successor, (ii) Atlas, at
its option, elects to terminate the book-entry system through DTC or (iii) after
the occurrence of certain events of default or other events specified in the
related Prospectus Supplement, Certificate Owners with fractional undivided
interests aggregating not less than a majority in interest in such Trust advise
the Trustee, Atlas and DTC through DTC Participants in writing that the
continuation of a book-entry system through DTC (or a successor thereto) is no
longer in the Certificate Owners' best interest. Upon the occurrence of any
event described in the immediately preceding sentence, the Trustee will be
required to notify all Certificate Owners through DTC Participants of the
availability of Definitive Certificates. Upon surrender by DTC of the
certificates representing the Certificates and receipt of instructions for
re-registration, the Trustee will reissue the Certificates as Definitive
Certificates to Certificate Owners.
Distributions of principal, premium, if any, and interest with respect to
Certificates will thereafter be made by the Trustee directly in accordance with
the procedures set forth in the Basic Agreement and the applicable Trust
Supplements, to holders in whose names the Definitive Certificates were
registered at the close of business on the applicable record date. Such
distributions will be made by check mailed to the address of such holder as it
appears on the register maintained by the Trustee. The final payment on any
Certificate, however, will be made only upon presentation and surrender of such
Certificate at the office or agency specified in the notice of final
distribution to Certificateholders.
Definitive Certificates will be freely transferable and exchangeable at the
office of the Trustee upon compliance with the requirements set forth in the
Basic Agreement and the applicable Trust Supplements. No service charge will be
imposed for any registration of transfer or exchange, but payment of a sum
sufficient to cover any tax or other governmental charge shall be required.
Payments and Distributions
Subject to the effect of any cross-subordination provisions set forth in the
Prospectus Supplement for a series of Certificates, payments of principal,
premium, if any, and interest with respect to the Equipment Notes held in each
Trust will be distributed by the Trustee, upon receipt, to Certificateholders of
such Trust on the dates specified in the applicable Prospectus Supplement,
except in certain cases when some or all of such Equipment Notes
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<PAGE> 49
are in default as described in the applicable Prospectus Supplement. Payments of
principal of, and interest on, the unpaid principal amount of the Equipment
Notes held in each Trust will be scheduled to be received by the Trustee on the
dates specified in the applicable Prospectus Supplement (such scheduled payments
of interest and principal on the Equipment Notes to the Trustee are herein
referred to as "Scheduled Payments", and the dates specified in the applicable
Prospectus Supplement for distribution of Scheduled Payments to the Trustee are
herein referred to as "Regular Distribution Dates"). See "Description of the
Equipment Notes -- General". Subject to the effect of any cross-subordination
provisions set forth in the Prospectus Supplement for a series of Certificates,
each Certificateholder of each Trust will be entitled to receive a pro rata
share of any distribution in respect of Scheduled Payments of principal and
interest made on the Equipment Notes held in the Trust.
Payments of principal, premium, if any, and interest received by the Trustee on
account of the early redemption or purchase, if any, of the Equipment Notes
relating to one or more Aircraft held in a Trust, and payments, other than
Scheduled Payments received on a Regular Distribution Date or within five days
thereafter ("Special Payments"), received by the Trustee relating to one or more
Aircraft will be distributed on the date determined as described in the
applicable Prospectus Supplement (a "Special Distribution Date") except that, if
specified in the applicable Prospectus Supplement, payments received by the
Trustee following default in respect of the Equipment Notes on a Regular
Distribution Date as a result of a drawing under any liquidity facility, as
described in the applicable Prospectus Supplement (each, a "Liquidity
Facility"), provided for the benefit of the specified Certificateholders shall
be distributed on such Regular Distribution Date to such Certificateholders. The
Trustee will mail notice to the Certificateholders of record of the applicable
Trust stating any anticipated Special Distribution Date.
Pool Factors
Unless otherwise described in the applicable Prospectus Supplement, the "Pool
Balance" for each Trust or for the Certificates issued by any Trust indicates,
as of any date, the original aggregate face amount of the Certificates of such
Trust less the aggregate amount of all payments made in respect of the
Certificates of such Trust other than payments made in respect of interest or
premium thereon or reimbursement of any costs and expenses in connection
therewith. The Pool Balance for each Trust as of any Regular Distribution Date
or Special Distribution Date shall be computed after giving effect to the
payment of principal, if any, on the Equipment Notes or other Trust Property
held in such Trust and the distribution thereof to be made on that date.
Unless otherwise described in the applicable Prospectus Supplement, the "Pool
Factor" for each Trust as of any Regular Distribution Date or Special
Distribution Date is the quotient (rounded to the seventh decimal place)
computed by dividing (i) the Pool Balance by (ii) the aggregate original face
amount of the Certificates of such Trust. The Pool Factor for each Trust as of
any Regular Distribution Date or Special Distribution Date shall be computed
after giving effect to the payment of principal, if any, on the Equipment Notes
or other Trust Property held in such Trust and distribution thereof to be made
on that date. The Pool Factor for each Trust will initially be 1.0000000;
thereafter, the Pool Factor for each Trust will decline as described herein to
reflect reductions in the Pool Balance of such Trust. The amount of a
Certificateholder's pro rata share of the Pool Balance of a Trust can be
determined by multiplying the original denomination of the holder's Certificate
of such Trust by the Pool Factor for such Trust as of the applicable Regular
Distribution Date or Special Distribution Date. The Pool Factor and the Pool
Balance for each Trust will be mailed to Certificateholders of such Trust on
each Regular Distribution Date and Special Distribution Date.
Unless there has been an early redemption, a purchase of an issue of Equipment
Notes by the related Owner Trustee after an Indenture Default (as defined
below), a default in the payment of principal in respect of one or more issues
of the Equipment Notes held in a Trust or certain actions have been taken
following a default thereon, as described in the applicable Prospectus
Supplement, the Pool Factor for the Trusts will decline in proportion to the
scheduled repayments of principal on the Equipment Notes held in such Trust as
described in the applicable Prospectus Supplement. In the event of such
redemption, purchase or payment default (if such payment is not made within five
days of the Regular Distribution Date), the Pool Factor and the Pool Balance of
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each Trust so affected will be recomputed after giving effect thereto and notice
thereof will be mailed to the Certificateholders of such Trust. Each Trust will
have a separate Pool Factor.
Reports to Certificateholders
On each Regular Distribution Date and Special Distribution Date, the Trustee
will include with each distribution of a Scheduled Payment or Special Payment to
Certificateholders of the related Trust a statement, giving effect to such
distribution to be made on such Regular Distribution Date or Special
Distribution Date, setting forth the following information (per $1,000 aggregate
principal amount of Certificate for such Trust, as to (i) and (ii) below):
(i) the amount of such distribution allocable to principal and the
amount allocable to premium, if any;
(ii) the amount of such distribution allocable to interest; and
(iii) the Pool Balance and the Pool Factor for such Trust.
So long as the Certificates are registered in the name of DTC or its nominee, on
the record date prior to each Regular Distribution Date and Special Distribution
Date, the Trustee will request from DTC a securities position listing setting
forth the names of all DTC Participants reflected on DTC's books as holding
interests in the Certificates on such record date. On each Regular Distribution
Date and Special Distribution Date, the applicable Trustee will mail to each
such DTC Participant the statement described above and will make available
additional copies as requested by such DTC Participant for forwarding to
Certificate Owners.
In addition, after the end of each calendar year, the Trustee will prepare for
each Certificateholder of each Trust at any time during the preceding calendar
year a report containing the sum of the amounts determined pursuant to clauses
(i) and (ii) above with respect to the Trust for such calendar year or, in the
event such person was a Certificateholder during only a portion of such calendar
year, for the applicable portion of such calendar year, and such other items as
are readily available to the Trustee and which a Certificateholder shall
reasonably request as necessary for the purpose of such Certificateholder's
preparation of its federal income tax returns. Such report and such other items
shall be prepared on the basis of information supplied to the Trustee by the DTC
Participants and shall be delivered by the Trustee to such DTC Participants to
be available for forwarding by such DTC Participants to Certificate Owners in
the manner described above.
At such time, if any, as the Certificates are issued in the form of Definitive
Certificates, the Trustee will prepare and deliver the information described
above to each Certificateholder of record of each Trust as the name and period
of ownership of such Certificateholder appears on the records of the registrar
of the Certificates.
Voting of Equipment Notes
Subject to the effect of any cross-subordination provisions set forth in the
related Prospectus Supplement, the Trustee, as holder of the Equipment Notes
held in each Trust, has the right to vote and give consents and waivers with
respect to such Equipment Notes under the Related Indentures. The Basic
Agreement and related Trust Supplement set forth (i) the circumstances in which
the Trustee may direct any action or cast any vote as the holder of the
Equipment Notes held in the applicable Trust at its own discretion, (ii) the
circumstances in which the Trustee shall seek instructions from the
Certificateholders of such Trust and (iii) the percentage of Certificateholders
required to direct the Trustee to take any such action. If specified in the
related Prospectus Supplement, the right of a Trustee to vote and give consents
and waivers with respect to the Equipment Notes held in the related Trust may,
in the circumstances set forth in an intercreditor agreement to be executed by
such Trustee and specified in such Prospectus Supplement, be exercisable by
another person specified in such Prospectus Supplement.
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Events of Default and Certain Rights Upon an Event of Default
The Prospectus Supplement will specify the events of default under the Basic
Agreement (an "Event of Default") and the Related Indentures (an "Indenture
Default"). The Indenture Defaults in the case of Leased Aircraft Indentures will
include events of default under the related Leases (a "Lease Event of Default").
With respect to any Equipment Notes which are supported by a Liquidity Facility,
the Indenture Defaults or Events of Default may include events of default under
such Liquidity Facility. Unless otherwise provided in a Prospectus Supplement,
all of the Equipment Notes issued under the same Indenture will relate to a
specific Aircraft and there will be no cross-collateralization or cross-default
provisions in the Indentures; accordingly, events resulting in an Indenture
Default under any particular Indenture would not necessarily result in an
Indenture Default occurring under any other Indenture. If an Indenture Default
occurs in fewer than all of the Indentures, notwithstanding the treatment of
Equipment Notes issued under any Indenture under which an Indenture Default has
occurred, payments of principal and interest on the Equipment Notes issued
pursuant to Indentures with respect to which an Indenture Default has not
occurred will continue to be made as originally scheduled. As described below
under "-- Cross-Subordination Issues", a Prospectus Supplement may provide the
terms of any cross-subordination provisions among Certificateholders of separate
Trusts. If such provisions are so provided, payments made pursuant to a Related
Indenture under which an Indenture Default has not occurred may be distributed
first to the holders of the Certificates issued under the Trust which holds the
most senior Equipment Notes issued under all Related Indentures.
The ability of the applicable Owner Trustee or Owner Participant under a Leased
Aircraft Indenture to cure Indenture Defaults, including an Indenture Default
that results from the occurrence of a Lease Event of Default under the related
Lease, will be described in the Prospectus Supplement. Unless otherwise provided
in a Prospectus Supplement, with respect to any Certificates or Equipment Notes
entitled to the benefits of a Liquidity Facility, a drawing under any such
Liquidity Facility for the purpose of making a payment of interest as a result
of the failure by Atlas to have made a corresponding payment will not cure an
Indenture Default or any Lease Default related to such failure by Atlas.
The Prospectus Supplement related to a series of Certificates will describe the
circumstances under which the Trustee of the related Trust may vote some or all
of the Equipment Notes held in such Trust. Such Prospectus Supplement also will
set forth the percentage of Certificateholders of such Trust entitled to direct
the Trustee to take any action with respect to such Equipment Notes. If the
Equipment Notes outstanding under an Indenture are held by more than one Trust,
then the ability of the Certificateholders issued with respect to any one Trust
to cause the Loan Trustee with respect to any Equipment Notes held in such Trust
to accelerate the Equipment Notes under the applicable Indenture or to direct
the exercise of remedies by the Loan Trustee under the applicable Indenture will
depend, in part, upon the proportion of the aggregate principal amount of the
Equipment Notes outstanding under such Indenture and held in such Trust to the
aggregate principal amount of all Equipment Notes outstanding under such
Indenture. In addition, if cross-subordination provisions are applicable to any
series of Certificates, then the ability of the Certificateholders of any one
Trust holding Equipment Notes issued under an Indenture to cause the Loan
Trustee with respect to any Equipment Notes held in such Trust to accelerate the
Equipment Notes under such Indenture or to direct the exercise of remedies by
the Loan Trustee under such Indenture will depend, in part, upon the Class of
Equipment Notes held in such Trust. If the Equipment Notes outstanding under an
Indenture are held by more than one Trust, then each Trust will hold Equipment
Notes with different terms from the Equipment Notes held in the other Trusts and
therefore the Certificateholders of each Trust may have divergent or conflicting
interests from those of the Certificateholders of the other Trusts holding
Equipment Notes issued under the same Indenture. In addition, so long as the
same institution acts as Trustee of each Trust, in the absence of instructions
from the Certificateholders of any such Trust, the Trustee for such Trust could
for the same reason be faced with a potential conflict of interest upon an
Indenture Default. In such event, the Trustee has indicated that it would resign
as Trustee of one or all such Trusts, and a successor trustee would be appointed
in accordance with the terms of the Basic Agreement.
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The Prospectus Supplement for a series of Certificates will specify whether and
under what circumstances the Trustee may sell for cash to any person all or part
of the Equipment Notes held in the related Trust. Any proceeds received by the
Trustee upon any such sale shall be deposited in an account established by the
Trustee for the benefit of the Certificateholders of such Trust for the deposit
of such Special Payments (the "Special Payments Account") and shall be
distributed to the Certificateholders of such Trust on a Special Distribution
Date. The market for Equipment Notes in default may be very limited, and there
can be no assurance that they could be sold for a reasonable price. Furthermore,
so long as the same institution acts as Trustee of multiple Trusts, it may be
faced with a conflict in deciding from which Trust to sell Equipment Notes to
available buyers. If the Trustee sells any such Equipment Notes with respect to
which an Indenture Default exists for less than their outstanding principal
amount, the Certificateholders of such Trust will receive a smaller amount of
principal distributions than anticipated and will not have any claim for the
shortfall against Atlas, any Owner Trustee, Owner Participant or the Trustee.
Furthermore, unless otherwise specified in the applicable Prospectus Supplement,
neither the Trustee nor the Certificateholders of such Trust could take any
action with respect to any remaining Equipment Notes held in such Trust so long
as no Indenture Defaults exist with respect thereto.
Any amount, other than Scheduled Payments received on a Regular Distribution
Date or within five days thereafter, distributed to the Trustee of any Trust by
the Loan Trustee under any Indenture on account of the Equipment Notes held in
such Trust following an Indenture Default under such Indenture shall be
deposited in the Special Payments Account for such Trust and shall be
distributed to the Certificateholders of such Trust on a Special Distribution
Date. In addition, if a Prospectus Supplement provides that the applicable Owner
Trustee may, under circumstances specified therein, redeem or purchase the
outstanding Equipment Notes issued under the applicable Indenture, the price
paid by such Owner Trustee to the Trustee of any Trust for the Equipment Notes
issued under such Indenture and held in such Trust shall be deposited in the
Special Payments Account for such Trust and shall be distributed to the
Certificateholders of such Trust on a Special Distribution Date.
Any funds representing payments received with respect to any Equipment Notes in
default held in a Trust, or the proceeds from the sale by the Trustee of any
such Equipment Notes, held by the Trustee in the Special Payments Account for
such Trust shall, to the extent practicable, be invested and reinvested by the
Trustee in Permitted Investments pending the distribution of such funds on a
Special Distribution Date. "Permitted Investments" will be specified in the
related Prospectus Supplement.
The Basic Agreement provides that the Trustee of each Trust shall, within 90
days after the occurrence of a default (as defined below) in respect of such
Trust, give to the Certificateholders of such Trust notice, transmitted by mail,
of all uncured or unwaived defaults with respect to such Trust known to it,
provided that, except in the case of default in the payment of principal,
premium, if any, or interest on any of the Equipment Notes held in such Trust,
the Trustee shall be protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the interests of such
Certificateholders. The term "default" as used in this paragraph only means the
occurrence of an Indenture Default with respect to Equipment Notes held in a
Trust as described above, except that in determining whether any such Indenture
Default has occurred, any grace period or notice in connection therewith shall
be disregarded.
The Basic Agreement contains a provision entitling the Trustee of each Trust,
subject to the duty of the Trustee during a default to act with the required
standard of care, to be offered reasonable security or indemnity by the
Certificateholders of such Trust before proceeding to exercise any right or
power under the Basic Agreement at the request of such Certificateholders.
The Prospectus Supplement for a series of Certificates will specify the
percentage of Certificateholders entitled to waive, or to instruct the Trustee
to waive, any past Event of Default with respect to such Trust and its
consequences. The Prospectus Supplement for a series of Certificates also will
specify the percentage of Certificateholders (and whether of such Trust or of
any other Trust holding Equipment Notes issued under Related Indentures)
entitled to waive, or to instruct the Trustee or the Loan Trustee to waive, any
past Indenture Default under any Related Indenture and thereby annul any
direction given with respect thereto.
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Merger, Consolidation and Transfer of Assets
Atlas will be prohibited from consolidating with or merging into any other
corporation or transferring substantially all of its assets as an entirety to
any other corporation unless (i) the surviving, successor or transferee
corporation shall (a) be organized and validly existing under the laws of the
United States or any state thereof or the District of Columbia, (b) be a
"citizen of the United States" (as defined in Title 49 of the United States Code
relating to aviation (the "Transportation Code")) holding an air carrier
operating certificate issued by the Secretary of Transportation pursuant to
Chapter 447 of Title 49, United States Code, if, and so long as, such status is
a condition of entitlement to the benefits of Section 1110 of the Bankruptcy
Code, and (c) expressly assume all of the obligations of Atlas contained in the
Basic Agreement and any Trust Supplement, the Note Purchase Agreements, any
Owned Aircraft Indentures and, with respect to the Leased Aircraft, the
applicable Participation Agreements and Leases, and any other operative
documents; and (ii) Atlas shall have delivered a certificate and an opinion or
opinions of counsel indicating that such transaction, in effect, complies with
such conditions.
The Pass Through Trust Agreements, the Note Purchase Agreement, the Indentures,
the Participation Agreements and the Leases will not contain any covenants or
provisions which may afford the applicable Trustee or Certificateholders
protection in the event of a highly leveraged transaction, including
transactions effected by management or affiliates, which may or may not result
in a change in control of Atlas.
Modifications of the Basic Agreement
The Basic Agreement contains provisions permitting Atlas and the Trustee of each
Trust to enter into a supplemental trust agreement, without the consent of the
holders of any of the Certificates of such Trust, including among other things
(i) to provide for the formation of such Trust and the issuance of a series of
Certificates, (ii) to evidence the succession of another corporation to Atlas
and the assumption by such corporation of Atlas' obligations under the Basic
Agreement and the applicable Trust Supplement, (iii) to add to the covenants of
Atlas for the benefit of holders of such Certificates, or to surrender any right
or power in the Basic Agreement conferred upon Atlas, (iv) to cure any ambiguity
or correct or supplement any defective or inconsistent provision of the Basic
Agreement or the applicable Trust Supplement or to make any other provisions
with respect to matters or questions arising thereunder, provided such action
shall not materially adversely affect the interests of the holders of such
Certificates, or to cure any ambiguity or correct any mistake or (without
limitation of the foregoing), to give effect or provide for replacement
liquidity facilities, if applicable to such Certificates, (v) to comply with any
requirement of the Commission, any applicable law, rules or regulations of any
exchange or quotation system, on which any Certificates may be listed or of any
regulatory body, (vi) to modify, eliminate or add to the provisions of the Basic
Agreement to the extent as shall be necessary to continue the qualification of
the Basic Agreement (including any supplemental agreement) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and to add to the
Basic Agreement such other provisions as may be expressly permitted by the Trust
Indenture Act, with certain exceptions, (vii) to provide for a successor Trustee
or to add to or change any provision of the Basic Agreement as shall be
necessary to facilitate the administration of the Trusts thereunder by more than
one Trustee and (viii) to make any other amendments or modifications to the
Basic Agreement, provided such amendments or modifications shall only apply to
Certificates issued thereafter; provided, in the case of clauses (i) through
(viii) above, that no such supplemental trust agreement shall adversely affect
the status of any Trust as a grantor trust for U.S. federal income tax purposes.
The Basic Agreement also contains provisions permitting Atlas and the Trustee of
each Trust, with the consent of the Certificateholders of such Trust evidencing
fractional undivided interests aggregating not less than a majority in interest
of such Trust (and with the consent of any related Owner Trustee), to execute
supplemental trust agreements adding any provisions to or changing or
eliminating any of the provisions of the Basic Agreement, to the extent relating
to such Trust, and the applicable Trust Supplement, or modifying the rights of
the Certificateholders, except that no such supplemental trust agreement may,
without the consent of each Certificateholder so affected thereby, (a) reduce in
any manner the amount of, or delay the timing of, any receipt by the Trustee of
payments on the Equipment Notes held in such Trust or distributions in respect
of any Certificate related to such
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Trust, or change the date or place of any payment in respect of any Certificate,
or make distributions payable in coin or currency other than that provided for
in such Certificates, or impair the right of any Certificateholder of such Trust
to institute suit for the enforcement of any such payment when due, (b) permit
the disposition of any Equipment Note held in such Trust, except as provided in
the Basic Agreement or the applicable Trust Supplement, or otherwise deprive any
Certificateholder of the benefit of the ownership of the applicable Equipment
Notes, (c) reduce the percentage of the aggregate fractional undivided interests
of the Trust provided for in the Basic Agreement or the applicable Trust
Supplement, the consent of the holders of which is required for any such
supplemental trust agreement or for any waiver provided for in the Basic
Agreement or such Trust Supplement, (d) modify any of the provisions relating to
the rights of the Certificateholders in respect of the waiver of events of
default or supplemental agreements, with certain limited exceptions, (e) alter
the priority of distributions specified in any applicable intercreditor
agreement in a manner materially adverse to the interests of the
Certificateholders of such Trust or (f) adversely affect the status of any Trust
as a grantor trust for U.S. federal income tax purposes.
Modification of Indenture and Related Agreements
The Prospectus Supplement will specify the Trustee's obligations in the event
that the Trustee, as the holder of any Equipment Notes held in a Trust, receives
a request for its consent to any amendment, modification or waiver under the
Indenture or other documents relating to such Equipment Notes (including any
Lease with respect to Leased Aircraft Notes) or any Liquidity Facility.
Cross-Subordination Issues
The Equipment Notes issued under an Indenture may be held in more than one Trust
and one Trust may hold Equipment Notes issued under more than one Related
Indenture. Unless otherwise provided in a Prospectus Supplement, only Equipment
Notes of the same Class may be held in the same Trust. In such event, payments
made on account of a subordinate class of Certificates issued under a Prospectus
Supplement may, under circumstances described in such Prospectus Supplement, be
subordinated to the prior payment of all amounts owing to Certificateholders of
a Trust which holds senior Equipment Notes issued under any Related Indentures.
The Prospectus Supplement related to an issuance of Certificates will describe
any such "cross-subordination" provisions and any related terms, including the
percentage of Certificateholders under any Trust which are permitted to (i)
grant waivers of defaults under any Related Indenture, (ii) consent to the
amendment or modification of any Related Indenture or (iii) direct the exercise
of remedial actions under any Related Indenture. Payments made on account of
Certificates may also be subordinated to the rights of the provider of any
related Liquidity Facility, as described below.
Termination of the Trusts
The obligations of Atlas and the Trustee with respect to a Trust will terminate
upon the distribution to Certificateholders of such Trust of all amounts
required to be distributed to them pursuant to the Basic Agreement and the
applicable Trust Supplement and the disposition of all property held in such
Trust. The Trustee will send to each Certificateholder of record of such Trust
notice of the termination of such Trust, the amount of the proposed final
payment and the proposed date for the distribution of such final payment for
such Trust. The final distribution to any Certificateholder of such Trust will
be made only upon surrender of such Certificateholder's Certificates at the
office or agency of the Trustee specified in such notice of termination.
Delayed Purchase of Equipment Notes
In the event that, on the issuance date of any Certificates, all of the proceeds
from the sale of such Certificates are not used to purchase the Equipment Notes
contemplated to be held in the related Trust, such Equipment Notes may be
purchased by the Trustee at any time on or prior to the date specified in the
applicable Prospectus Supplement. In such event, the proceeds from the sale of
such Certificates not used to purchase Equipment Notes will be held under an
arrangement described in the applicable Prospectus Supplement pending the
pur-
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chase of the Equipment Notes not so purchased. The arrangements with respect to
the payment of interest on funds so held will be described in the applicable
Prospectus Supplement. If any such proceeds are not subsequently utilized to
purchase Equipment Notes by the relevant date specified in the applicable
Prospectus Supplement, such proceeds will be returned to the holders of such
Certificates.
Liquidity Facility
The related Prospectus Supplement may provide that distributions made by the
Trustee with respect to the related Certificates will be supported by a
Liquidity Facility issued by an institution identified in the related Prospectus
Supplement. The provider of such Liquidity Facility may have a claim senior to
the Certificateholders' as specified in the related Prospectus Supplement.
The Trustee
Unless otherwise provided in the Prospectus Supplement for any series of
Certificates, the Trustee for each series of Certificates will be Wilmington
Trust Company. With certain exceptions, the Trustee makes no representations as
to the validity or sufficiency of the Basic Agreement, the Trust Supplements,
the Certificates, the Equipment Notes, the Indentures, the Leases or other
related documents. The Trustee shall not be liable with respect to any series of
Certificates for any action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of a majority in principal amount
of outstanding Certificates of such series issued under the Basic Agreement.
Subject to such provisions, such Trustee shall be under no obligation to
exercise any of its rights or powers under the Basic Agreement at the request of
any holders of Certificates issued thereunder unless they shall have offered to
the Trustee indemnity satisfactory to it. The Basic Agreement provides that the
Trustee in its individual or any other capacity may acquire and hold
Certificates issued thereunder and, subject to certain conditions, may otherwise
deal with Atlas and, with respect to the Leased Aircraft, with any Owner Trustee
with the same rights it would have if it were not the Trustee.
The Trustee may resign with respect to any or all of the Trusts at any time, in
which event Atlas will be obligated to appoint a successor trustee. If the
Trustee ceases to be eligible to continue as Trustee with respect to a Trust or
becomes incapable of acting as Trustee or becomes insolvent, Atlas may remove
such Trustee, or any Certificateholder of such Trust for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of such Trustee and the appointment of
a successor trustee. Any resignation or removal of the Trustee with respect to a
Trust and appointment of a successor trustee for such Trust does not become
effective until acceptance of the appointment by the successor trustee. Pursuant
to such resignation and successor trustee provisions, it is possible that a
different trustee could be appointed to act as the successor trustee with
respect to each Trust. All references in this Prospectus to the Trustee should
be read to take into account the possibility that the Trusts could have
different successor trustees in the event of such a resignation or removal.
The Basic Agreement provides that Atlas will pay the Trustee's fees and expenses
and indemnify the Trustee against certain liabilities.
Description of the Equipment Notes
The statements made under this caption are summaries and reference is made to
the entire Prospectus and detailed information appearing in the applicable
Prospectus Supplement. Where no distinction is made between the Leased Aircraft
Notes and the Owned Aircraft Notes or between their respective Indentures, such
statements refer to any Equipment Notes and any Indenture.
To the extent that any provision in any Prospectus Supplement is inconsistent
with any provision in this summary, the provision of such Prospectus Supplement
will control.
General
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Equipment Notes will be issued under Indentures either (a) between the related
Owner Trustee of a trust for the benefit of the Owner Participant who is the
beneficial owner of the related Aircraft, and the related Loan Trustee, or (b)
between Atlas and the related Loan Trustee. The Equipment Notes issued pursuant
to clause (a) of the preceding sentence will be nonrecourse obligations of the
applicable Owner Trust. Each Equipment Note will be authenticated under an
Indenture by the Loan Trustee. All Equipment Notes issued under the same
Indenture will relate to, and be secured by, one or more Aircraft identified and
described in the related Prospectus Supplement and which, in the case of the
Equipment Notes issued as described in such clause (a), are leased to Atlas
pursuant to a Lease between the Owner Trustee under the applicable Owner Trust
and Atlas or, in the case of Equipment Notes issued as described in clause (b),
owned by Atlas.
With respect to each Leased Aircraft, the related Owner Trustee has acquired or
will acquire such Aircraft, will grant a security interest in such Aircraft to
the related Loan Trustee as security for the payments of the related Leased
Aircraft Notes, and has leased or will lease such Aircraft to Atlas pursuant to
the related Lease which has been or will be assigned to the related Loan
Trustee. Pursuant to each such Lease, Atlas will be obligated to make or cause
to be made rental and other payments to the related Loan Trustee on behalf of
the related Owner Trustee.
Principal and Interest Payments
Interest received by the Trustee on the Equipment Notes held in each Trust will
be passed through to the Certificateholders of such Trust on the dates and at
the rate per annum set forth in the applicable Prospectus Supplement until the
final distribution for such Trust. Principal payments received by the Trustee on
the Equipment Notes held in each Trust will be passed through to the
Certificateholders of such Trust in scheduled amounts on the dates set forth in
the applicable Prospectus Supplement until the final distribution date for such
Trust.
If any date scheduled for any payment of principal, premium, if any, or interest
with respect to Equipment Notes is not a Business Day, such payment will be made
on the next succeeding Business Day without any additional interest.
Redemption
The applicable Prospectus Supplement will describe the circumstances, whether
voluntary or involuntary, under which the Equipment Notes may be redeemed or
purchased prior to the stated maturity date thereof, in whole or in part, the
premium, if any, applicable upon certain redemptions or purchases and other
terms applying to the redemptions or purchases of such Equipment Notes.
Security
The Leased Aircraft Notes will be secured by (i) an assignment by the related
Owner Trustee to the related Loan Trustee of such Owner Trustee's rights (except
for certain rights, including those described below) under the Lease or Leases
with respect to the related Aircraft, including the right to receive payments of
rent thereunder, and (ii) a mortgage granted to such Loan Trustee in such
Aircraft, subject to the rights of Atlas under such Lease or Leases. Under the
terms of each Lease, Atlas' obligations in respect of each Leased Aircraft will
be those of a Lessee under a "net lease". Accordingly, Atlas will be obligated,
among other things and at its expense, to cause each Leased Aircraft to be duly
registered, to pay all costs of operating such Aircraft and to maintain,
service, repair and overhaul (or cause to be maintained, serviced, repaired and
overhauled) such Aircraft. With respect to the Leased Aircraft, the assignment
by the related Owner Trustee to the related Loan Trustee of its rights under the
related Lease will exclude, among other things, rights of such Owner Trustee and
the related Owner Participant relating to indemnification by Atlas for certain
matters, insurance proceeds payable to such Owner Trustee in its individual
capacity and to such Owner Participant under liability insurance maintained by
Atlas pursuant to such Lease or by such Owner Trustee or such Owner Participant,
insurance proceeds payable to such Owner Trustee in its individual capacity or
to such Owner Participant under certain casualty insurance maintained by such
Owner Trustee or such Owner Participant pursuant to such Lease and any rights of
such Owner Participant
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or such Owner Trustee to enforce payment of the foregoing amounts and their
respective rights to the proceeds of the foregoing.
The Owned Aircraft Notes will be secured by a mortgage granted to the related
Loan Trustee of all of Atlas' right, title and interest in and to the Owned
Aircraft specified in the related Owned Aircraft Indenture. Under the terms of
each Owned Aircraft Indenture, Atlas will be obligated, among other things and
at its expense, to cause each Owned Aircraft to be duly registered, to pay all
costs of operating such Aircraft and to maintain, service, repair and overhaul
(or cause to be maintained, serviced, repaired and overhauled) such Aircraft.
The Prospectus Supplement will describe the required insurance coverage with
respect to the Aircraft.
Atlas will be required, except under certain circumstances, to keep each
Aircraft registered under the Transportation Code, and to record the Indenture
and the Lease, if applicable, among other documents, with respect to each
Aircraft under the Transportation Code. Such recordation of the Indenture, the
Lease, if applicable, and other documents with respect to each Aircraft will
give the related Loan Trustee a perfected security interest in the related
Aircraft whenever it is located in the United States or any of its territories
and possessions; the Convention on the International Recognition of Rights in
Aircraft (the "Convention") provides that such security will also be recognized,
with certain limited exceptions, in those jurisdictions that have ratified or
adhere to the Convention. Atlas will have the right, subject to certain
conditions, at its own expense to register each Aircraft in countries other than
the United States. Each Aircraft may also be operated by Atlas or under lease,
sublease or interchange arrangements in countries that are not parties to the
Convention. The extent to which the related Loan Trustee's security interest
would be recognized in an Aircraft located in a country that is not a party to
the Convention, and the extent to which such security interest would be
recognized in a jurisdiction adhering to the Convention if the Aircraft is
registered in a jurisdiction not a party to the Convention, is uncertain.
Moreover, in the case of an Indenture Default, the ability of the related Loan
Trustee to realize upon its security interest in an Aircraft could be adversely
affected as a legal or practical matter if such Aircraft were registered or
located outside the United States.
Unless otherwise specified in the applicable Prospectus Supplement, the
Equipment Notes will not be cross-collateralized and consequently the Equipment
Notes issued in respect of any one Aircraft will not be secured by any other
Aircraft or, in the case of Leased Aircraft Notes, the Lease related thereto.
Unless and until an Indenture Default with respect to a Leased Aircraft has
occurred and is continuing, the related Loan Trustee may exercise only limited
rights of the related Owner Trustee under the related Lease.
Funds, if any, held from time to time by the Loan Trustee with respect to any
Aircraft, prior to the distribution thereof, will be invested and reinvested by
such Loan Trustee. Such investment and reinvestment will be at the direction of
Atlas (except, with respect to a Leased Aircraft, in the case of a Lease Event
of Default under the applicable Lease or, with respect to an Owned Aircraft, in
the case of an Indenture Default under the applicable Indenture or an incipient
payment default or incipient bankruptcy default), in certain investments
described in the applicable Indenture. The net amount of any loss resulting from
any such investments will be paid by Atlas.
Section 1110 of the U.S. Bankruptcy Code provides in relevant part that the
right of lessors, conditional vendors and holders of security interests with
respect to "equipment" (as defined in Section 1110 of the U.S. Bankruptcy Code)
to take possession of such equipment in compliance with the provisions of a
lease, conditional sale contract or security agreement, as the case may be, is
not affected by (a) the automatic stay provision of the U.S. Bankruptcy Code,
which provision enjoins repossessions by creditors for the duration of the
reorganization period, (b) the provision of the U.S. Bankruptcy Code allowing
the trustee in reorganization to use property of the debtor during the
reorganization period, (c) Section 1129 of the U.S. Bankruptcy Code (which
governs the confirmation of plans of reorganization in Chapter 11 cases) and (d)
any power of the bankruptcy court to enjoin a repossession. Section 1110
provides, however, in relevant part that the right of a lessor, conditional
vendor or holder of a security interest to take possession of an aircraft in the
event of an event of default may not be exercised for 60 days following the date
of commencement of the reorganization proceedings (unless specifically permitted
by the bankruptcy court) and may not be exercised at all if, within such 60-day
period (or such longer
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<PAGE> 58
period consented to by the lessor, conditional vendor or holder of a security
interest), the trustee in reorganization agrees to perform the debtor's
obligations that become due on or after such date and cures all existing
defaults (other than defaults resulting solely from the financial condition,
bankruptcy, insolvency or reorganization of the debtor). "Equipment" is defined
in Section 1110 of the U.S. Bankruptcy Code, in part, as an aircraft, aircraft
engine, propeller, appliance, or spare part (as defined in Section 40102 of
Title 49 of the U.S. Code) that is subject to a security interest granted by,
leased to, or conditionally sold to a debtor that is a citizen of the United
States (as defined in Section 40102 of Title 49 of the U.S. Code) holding an air
carrier operating certificate issued by the Secretary of Transportation pursuant
to chapter 447 of Title 49 of the U.S. Code for aircraft capable of carrying 10
or more individuals or 6,000 pounds or more of cargo (subject to certain
limitations in the case of equipment first placed in service on or prior to
October 22, 1994).
In connection with any issuance of Certificates under this Prospectus and the
applicable Prospectus Supplement, it is a condition to the Trustee's obligation
to purchase Equipment Notes with respect to each Aircraft that outside counsel
to Atlas provide its opinion to such Trustee that (i) if such Aircraft is a
Leased Aircraft, the Owner Trustee, as lessor under the Lease for such Aircraft,
and the Loan Trustee, as assignee of such Owner Trustee's rights under such
Lease pursuant to the applicable Indenture, will be entitled to the benefits of
Section 1110 of the U.S. Bankruptcy Code with respect to the airframe and
engines comprising such Aircraft or (ii) if such Aircraft is an Owned Aircraft,
the Loan Trustee will be entitled to the benefits of Section 1110 with respect
to the airframe and engines comprising such Owned Aircraft, in each case so long
as Atlas continues to be a "citizen of the United States" as defined in Section
40102 of Title 49 of the U.S. Code holding an air carrier operating certificate
issued by the Secretary of Transportation pursuant to Chapter 447 of Title 49 of
the U.S. Code for aircraft capable of carrying 10 or more individuals or 6,000
pounds or more of cargo. Such opinion will not address the possible replacement
of an Aircraft after an Event of Loss (as defined in the Indenture) in the
future.
Ranking of Equipment Notes
Some of the Equipment Notes related to one or more Aircraft, as described in the
related Prospectus Supplement, may be subordinated and junior in right of
payment to other Equipment Notes related to the same Aircraft. The terms of such
subordination, if any, will be described in the related Prospectus Supplement.
Payments and Limitation of Liability
Each Leased Aircraft will be leased by the related Owner Trustee to Atlas for a
term commencing on the delivery date thereof to such Owner Trustee and expiring
on a date not earlier than the latest maturity date of the related Leased
Aircraft Notes, unless previously terminated as permitted by the terms of the
related Lease. The basic rent and certain other payments under each such Lease
will be payable by Atlas and will assigned by the related Owner Trustee under
the applicable Indenture to the related Loan Trustee to provide the funds
necessary to pay principal of, premium, if any, and interest due from such Owner
Trustee on the Leased Aircraft Notes issued under such Indenture. In certain
cases, the basic rent payments under a Lease may be adjusted, but each Lease
will provide that under no circumstances will rent payments by Atlas be less
than the scheduled payments on the related Leased Aircraft Notes. The balance of
any basic rent payment under each Lease, after payment of amounts due on the
Leased Aircraft Notes issued under the Indenture corresponding to such Lease,
will be paid over to the applicable Owner Trustee. Atlas' obligation to pay rent
and to cause other payments to be made under each Lease will be general
obligations of Atlas.
With respect to the Leased Aircraft Notes, except in certain circumstances
involving Atlas' purchase of a Leased Aircraft and the assumption by Atlas of
certain obligations relating thereto, including the obligation to make payments
in respect of the related Leased Aircraft Notes, the Leased Aircraft Notes will
not be obligations of, or guaranteed by, Atlas. With respect to the Leased
Aircraft Notes, none of the Owner Trustees, the Owner Participants or the Loan
Trustees shall be personally liable to any holder of such Leased Aircraft Notes
for amounts payable under such Leased Aircraft Notes, or, except as provided in
the Indentures relating thereto in the case of the Owner Trustees and the Loan
Trustees, for any liability under such Indentures. Except in the circumstances
referred to above, all amounts payable under any Leased Aircraft Notes (other
than payments made in connec-
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<PAGE> 59
tion with an optional redemption or purchase by the related Owner Trustee or the
related Owner Participant) will be made only from (i) the assets subject to the
lien of the applicable Indenture with respect to such Aircraft or the income and
proceeds received by the related Loan Trustee therefrom (including rent payable
by Atlas under the related Lease) or (ii) if so provided in the related
Prospectus Supplement, the applicable Liquidity Facility. With respect to the
Leased Aircraft Notes, except as otherwise provided in the applicable Indenture,
no Owner Trustee shall be personally liable for any amount payable or for any
statements, representations, warranties, agreements or obligations under any
such Indenture or under such Leased Aircraft Notes except for its own willful
misconduct or gross negligence. None of the Owner Participants shall have any
duty or responsibility under the Leased Aircraft Indentures or under such Leased
Aircraft Notes to the related Loan Trustee or to any holder of any such Leased
Aircraft Note.
Atlas' obligations under each Owned Aircraft Indenture and under the Owned
Aircraft Notes will be general obligations of Atlas.
Defeasance of the Indentures and the Equipment Notes in Certain Circumstances
Unless otherwise specified in the applicable Prospectus Supplement, each
Indenture provides that the obligations of the related Loan Trustee and, with
respect to any Leased Aircraft Notes, the related Owner Trustee or, with respect
to any Owned Aircraft Notes, Atlas under the applicable Indenture shall be
deemed to have been discharged and paid in full (except for certain obligations,
including the obligations to register the transfer or exchange of Equipment
Notes, to replace stolen, lost, destroyed or mutilated Equipment Notes and to
maintain paying agencies and hold money or payment in trust) on the 91st day
after the date of irrevocable deposit with the related Loan Trustee of money or
certain obligations of the United States or any agency or instrumentality
thereof the payment of which is backed by the full faith and credit of the
United States which, through the payment of principal and interest in respect
thereof in accordance with their terms, will provide money in an aggregate
amount sufficient to pay when due (including as a consequence of redemption in
respect of which notice is given on or prior to the date of such deposit)
principal of, premium, if any, and interest on all Equipment Notes issued
thereunder in accordance with the terms of such Indenture. Such discharge may
occur only if, among other things, (a) no event of default or event which with
the giving of notice or lapse of time, or both, would become an event of default
under such Indenture shall have occurred and be continuing on the date of such
deposit and (b) Atlas shall have delivered an opinion of counsel to the effect
that holders of such Equipment Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount and in
the same manner and at the same time as would have been the case if such
deposit, defeasance and discharge had not occurred.
Upon such defeasance, or upon payment in full of the principal of, premium, if
any, and interest on all Equipment Notes issued under any Indenture on the
maturity date therefor or deposit with the applicable Loan Trustee of money
sufficient therefor no earlier than one year prior to the date of such maturity,
the holders of such Equipment Notes will have no beneficial interest in or other
rights with respect to the related Aircraft or other assets subject to the lien
of such Indenture and such lien shall terminate.
Assumption of Obligations by Atlas
Unless otherwise specified in the applicable Prospectus Supplement with respect
to Leased Aircraft, upon the exercise by Atlas of any purchase options it may
have under the related Lease prior to the end of the term of such Lease, Atlas
may assume on a full recourse basis all of the obligations of the Owner Trustee
(other than its obligations in its individual capacity) under the Indenture with
respect to such Aircraft, including the obligations to make payments in respect
of the related Leased Aircraft Notes. In such event, certain relevant provisions
of the related Lease, including (among others) provisions relating to
maintenance, possession and use of the related Aircraft, liens, insurance and
events of default will be incorporated into such Indenture, and the Leased
Aircraft Notes issued under such Indenture will not be redeemed and will
continue to be secured by such Aircraft.
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Liquidity Facility
The related Prospectus Supplement may provide that one or more payments of
interest on the related Equipment Notes of one or more series will be supported
by a Liquidity Facility issued by an institution identified in the related
Prospectus Supplement. Unless otherwise provided in the related Prospectus
Supplement, the provider of the Liquidity Facility will have a senior claim upon
the assets securing the Equipment Notes.
Intercreditor Issues
Equipment Notes may be issued in different Classes, which means that the
Equipment Notes may have different payment priorities even though they are
issued by the same borrower and relate to the same Aircraft. In such event, the
related Prospectus Supplement will describe the priority of distributions among
such Equipment Notes (and any Liquidity Facilities therefor), the ability of any
Class to exercise and/or enforce any or all remedies with respect to the related
Aircraft (and, if the Equipment Notes are Leased Aircraft Notes, the Lease
related thereto) and certain other intercreditor terms and provisions.
Certain United States Federal Income Tax Consequences
General
Unless otherwise indicated in the applicable Prospectus Supplement, the
following summary describes the material U.S. federal income tax consequences to
Certificateholders of the purchase, ownership and disposition of the
Certificates offered hereby and in the opinion of Cahill Gordon & Reindel,
special tax counsel to Atlas ("Tax Counsel"), is accurate in all material
respects. Except as otherwise specified, the summary is addressed to beneficial
owners of Certificates ("U.S. Certificateholders") that are citizens or
residents of the United States, corporations, partnerships or other entities
created or organized in or under the laws of the United States or any state
therein, estates the income of which is subject to U.S. federal income taxation
regardless of its source and trusts that meet the following two tests: (a) a
U.S. court is able to exercise primary supervision over the administration of
the trust and (b) one or more United States persons have the authority to
control all the substantial decisions of such trust ("U.S. Persons") that will
hold the Certificates as capital assets. This summary does not address the tax
treatment of U.S. Certificateholders that may be subject to special tax rules,
such as banks, insurance companies, dealers in securities or commodities,
tax-exempt entities, holders that will hold Certificates as part of a straddle
or holders that have a "functional currency" other than the U.S. dollar, nor,
except as specifically indicated, does it address the tax treatment of U.S.
Certificateholders that do not acquire Certificates at the initial offering
price as part of the initial offering thereof. The summary does not purport to
be a comprehensive description of all of the tax considerations that may be
relevant to a decision to purchase Certificates. This summary does not describe
any tax consequences arising under the laws of any state, locality or taxing
jurisdiction other than the United States.
The summary is based upon the tax laws of the United States as in effect on the
date of this Prospectus, as well as judicial and administrative interpretations
thereof available on or before such date. All of the foregoing are subject to
change, which change could apply retroactively. Prospective investors should
note that no rulings have been sought from the Internal Revenue Service (the
"IRS") with respect to the federal income tax consequences discussed below, and
no assurances can be given that the IRS will not take contrary positions. The
Trusts are not indemnified for any U.S. federal income taxes that may be imposed
upon them, and the imposition of any such taxes on a Trust could result in a
reduction in the amounts available for distribution to the Certificateholders of
such Trust. Prospective investors should consult their own tax advisors with
respect to the federal, state, local and foreign tax consequences to them of the
purchase, ownership and disposition of the Certificates.
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Tax Status of the Trusts
In the opinion of Tax Counsel, each Trust will be classified as a grantor trust
for U.S. federal income tax purposes.
Taxation of Certificateholders Generally
A U.S. Certificateholder will be treated as owning its pro rata undivided
interest in each of the Equipment Notes and any other property held by the
related Trust. Accordingly, each U.S. Certificateholder's share of interest paid
on the Equipment Notes will be taxable as ordinary income, as it is paid or
accrued, in accordance with such U.S. Certificateholder's method of accounting
for U.S. federal income tax purposes, and a U.S. Certificateholder's share of
premium, if any, paid on redemption of an Equipment Note will be treated as
capital gain. In the event that a Trust is supported by a Liquidity Facility,
any amounts received by the Trust under the Liquidity Facility with respect to
unpaid interest will be treated for U.S. federal income tax purposes as having
the same characteristics as the payments they replace. If Atlas were to assume
an Owner Trust's obligations under Leased Aircraft Notes, such assumption would
be treated for federal income tax purposes as a taxable exchange of such Leased
Aircraft Notes, resulting in recognition of taxable gain or loss by the U.S.
Certificateholder.
Each U.S. Certificateholder will be entitled to deduct, consistent with its
method of accounting, its pro rata share of fees and expenses paid or incurred
by the corresponding Trust as provided in Section 162 or 212 of the Code.
Certain fees and expenses, including fees paid to the Trustee and Liquidity
Facility providers (if applicable), will be borne by parties other than the
Certificateholders. It is possible that such fees and expenses will be treated
as constructively received by the Trust, in which event a U.S. Certificateholder
will be required to include in income and will be entitled to deduct its pro
rata share of such fees and expenses. If a U.S. Certificateholder is an
individual, estate or trust, the deduction for such holder's share of such fees
or expenses will be allowed only to the extent that all of such holder's
miscellaneous itemized deductions, including such holder's share of such fees
and expenses, exceed 2% of such holder's adjusted gross income. In addition, in
the case of U.S. Certificateholders who are individuals, certain otherwise
allowable itemized deductions will be subject generally to additional
limitations on itemized deductions under applicable provisions of the Code.
Effect of Subordination of Subordinated Certificateholders
In the event that any Trust (such Trust being a "Subordinated Trust" and the
related Certificates being "Subordinated Certificates") is subordinated in right
of payment to any other Trust and the Subordinated Trust receives less than the
full amount of the receipts of interest, principal or premium paid with respect
to the Equipment Notes held by it (any shortfall in such receipts being the
"Shortfall Amounts") because of the subordination of such Trust, the
corresponding owners of beneficial interests in the Subordinated Certificates
(the "Subordinated Certificateholders") would probably be treated for federal
income tax purposes as if they had (1) received as distributions their full
share of such receipts, (2) paid over to the relevant preferred class of
Certificateholders an amount equal to their share of such Shortfall Amount, and
(3) retained the right to reimbursement of such amounts to the extent of future
amounts payable to such Subordinated Certificateholders with respect to such
Shortfall Amount.
Under this analysis, (1) Subordinated Certificateholders incurring a Shortfall
Amount would be required to include as current income any interest or other
income of the corresponding Subordinated Trust that was a component of the
Shortfall Amount, even though such amount was in fact paid to the relevant
preferred class of Certificateholders, (2) a loss would only be allowed to such
Subordinated Certificateholders when their right to receive reimbursement of
such Shortfall Amount becomes worthless (i.e., when it becomes clear that funds
will not be available from any source to reimburse such loss), and (3)
reimbursement of such Shortfall Amount prior to such a claim of worthlessness
would not be taxable income to Subordinated Certificateholders because such
amount was previously included in income. These results should not significantly
affect the inclusion of in-
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come for Subordinated Certificateholders on the accrual method of accounting,
but could accelerate inclusion of income to Subordinated Certificateholders on
the cash method of accounting by, in effect, placing them on the accrual method.
Original Issue Discount
The Equipment Notes may be issued with original issue discount ("OID"). The
applicable Prospectus Supplement will state whether any Equipment Notes to be
held by the related Trust will be issued with OID and, if applicable, will
describe the special U.S. federal income tax rules governing debt instruments
issued with OID. Generally, a holder of a debt instrument issued with OID that
is not de minimis must include such OID in income for federal income tax
purposes as it accrues, in advance of the receipt of the cash attributable to
such income, under a method that takes into account the compounding of interest.
Sale or Other Disposition of the Certificates
Upon the sale, exchange or other disposition of a Certificate, a U.S.
Certificateholder generally will recognize capital gain or loss (subject to the
possible recognition of ordinary income under market discount rules) equal to
the difference between the amount realized on the disposition (other than any
amount attributable to accrued interest which will be taxable as ordinary
income) and the U.S. Certificateholder's adjusted tax basis in the related Note
Purchase Agreement, Equipment Notes and any other property held by the
corresponding Trust. Any gain or loss will be long-term capital gain or loss to
the extent attributable to property held by the Trust for more than one year. In
the case of individuals, estates and trusts, long-term capital gains generally
are taxable at a lower rate than short-term capital gains. Any gain with respect
to an interest in a Deposit likely will be treated as ordinary income.
Foreign Certificateholders
Subject to the discussion of backup withholding below, payments of principal and
interest on the Equipment Notes to, or on behalf of, any beneficial owner of a
Certificate that is not a U.S. Person (a "Non-U.S. Certificateholder") will not
be subject to U.S. federal withholding tax; provided, in the case of interest,
that (i) such Non-U.S. Certificateholder does not actually or constructively own
10% or more of the total combined voting power of all classes of the stock of
Atlas or any Owner Participant or any transferee of such Owner Participant's
interest in the relevant Owner Trust, (ii) such Non-U.S. Certificateholder is
not a controlled foreign corporation for U.S. tax purposes that is related to
Atlas or any Owner Participant or any transferee of such Owner Participant's
interest in the relevant Owner Trust and (iii) either (A) the Non-U.S.
Certificateholder certifies, under penalties of perjury, that it is not a U.S.
person and provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "financial
institution") and holds the Certificate certifies, under penalties of perjury,
that such statement has been received from the Non-U.S. Certificateholder by it
or by another financial institution and furnishes the payor with a copy thereof.
The IRS issued final regulations on October 6, 1997, which modify the
certification requirements described in clause (iii) with respect to certain
payments after December 31, 1998.
Any capital gain realized upon the sale, exchange, retirement or other
disposition of a Certificate or upon receipt of premium paid on an Equipment
Note by a Non-U.S. Certificateholder will not be subject to U.S. federal income
or withholding taxes if (i) such gain is not effectively connected with a U.S.
trade or business of the Non-U.S. Certificateholder and (ii) in the case of an
individual, such Non-U.S. Certificateholder is not present in the United States
for 183 days or more in the taxable year of the sale, exchange, retirement or
other disposition or receipt.
Backup Withholding
Payments made on the Certificates and proceeds from the sale of Certificates
will not be subject to a backup withholding tax of 31% unless, in general, the
Certificateholder fails to comply with certain reporting procedures or otherwise
fails to establish an exemption from such tax under applicable provisions of the
Code.
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ERISA Considerations
Unless otherwise indicated in the applicable Prospectus Supplement, the
Certificates may, subject to certain legal restrictions, be purchased and held
by an employee benefit plan (a "Plan") subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or an individual
retirement account or an employee benefit plan subject to section 4975 of the
Code. A fiduciary of a Plan must determine that the purchase and holding of a
Certificate is consistent with its fiduciary duties under ERISA and does not
result in a non-exempt prohibited transaction as defined in section 406 of ERISA
or section 4975 of the Code. Employee benefit plans which are governmental plans
(as defined in section 3(32) of ERISA) and certain church plans (as defined in
section 3(33) of ERISA) are not subject to Title I of ERISA or section 4975 of
the Code. The Certificates may, subject to certain legal restrictions, be
purchased and held by such plans.
Plan of Distribution
The Company (and with respect to shares of Common Stock, the selling
stockholders) and/or any Atlas Trust may sell any of the Offered Securities in
any one or more of the following ways from time to time: (i) through agents;
(ii) to or through underwriters; (iii) through dealers; or (iv) directly to
purchasers.
The Prospectus Supplement with respect to the Offered Securities will set forth
the terms of the offering of the Offered Securities, including the name or names
of any underwriters, dealers or agents; the purchase price of the Offered
Securities and the proceeds to the Company and/or an Atlas Trust from such sale;
any underwriting discounts and commissions or agency fees and other items
constituting underwriters' or agents' compensation; any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
and any securities exchange on which such Offered Securities may be listed. Any
initial public offering price, discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
The distribution of the Offered Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Offered Securities may be solicited by agents designated by
the Company from time to time. Any such agent involved in the offer or sale of
the Offered Securities in respect of which this Prospectus is delivered will be
named, and any commissions payable by the Company and/or the applicable Atlas
Trust to such agent will be set forth, in the applicable Prospectus Supplement.
Unless otherwise indicated in such Prospectus Supplement, any such agent will be
acting on a reasonable best efforts basis for the period of its appointment. Any
such agent may be deemed to be an underwriter, as that term is defined in the
Securities Act, of the Offered Securities so offered and sold.
If Offered Securities are sold by means of an underwritten offering, the Company
and/or the applicable Atlas Trust will execute an underwriting agreement with an
underwriter or underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or underwriters, as well as
any other underwriters, and the term of the transaction, including commissions,
discounts and any other compensation of the underwriters and dealers, if any,
will be set forth in the Prospectus Supplement which will be used by the
underwriters to make resales of the Offered Securities in respect of which this
Prospectus is delivered to the public. If underwriters are utilized in the sale
of the Offered Securities in respect of which this Prospectus is delivered, the
Offered Securities will be acquired by the underwriters for their own account
and may be resold from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices or at varying prices
determined by the underwriter at the time of sale. Offered Securities may be
offered to the public either through underwriting syndicates represented by
managing underwriters or directly by the managing underwriters. If any
underwriter or underwriters are utilized in the sale of the Offered Securities,
unless otherwise indicated in the Prospectus Supplement, the underwriting
agreement will provide that the obligations of the underwriters are subject to
certain conditions precedent and that the underwriters with respect to a sale of
Offered Securities will be obligated to purchase all such Offered Securities of
a series if any are purchased.
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If a dealer is utilized in the sales of the Offered Securities in respect of
which this Prospectus is delivered, the company and/or the applicable Atlas
Trust will sell such Offered Securities to the dealer as principal. The dealer
may then resell such Offered Securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities Act, of the
Offered Securities so offered and sold. The name of the dealer and the terms of
the transaction will be set forth in the Prospectus supplement relating thereto.
Offers to purchase Offered Securities may be solicited directly by the Company
and/or the applicable Atlas Trust and the sale thereof may be made by the
Company and/or the applicable Atlas Trust directly to institutional investors or
others, who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any resale thereof. The terms of any such sales
will be described in the Prospectus Supplement relating thereto.
Agents, underwriters and dealers may be entitled under relevant agreements to
indemnification or contribution by the Company and/or the applicable Atlas Trust
against certain liabilities, including liabilities under the Securities Act.
Agents, underwriters and dealers may be customers of, engage in transactions
with, or perform services for, the Company and its subsidiaries in the ordinary
course of business.
Offered Securities may also be offered and sold, if so indicated in the
applicable Prospectus Supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by one or more firms ("remarketing firms"), acting as principals
for their own accounts or as agents for the Company and/or the applicable Atlas
Trust. Any remarketing firm will be identified and the terms of its agreement,
if any, with its compensation described in the applicable Prospectus Supplement.
Remarketing firms may be deemed to be underwriters, as such term is defined in
the Securities Act, in connection with the Offered Securities remarketed
thereby. Remarketing firms may be entitled under agreements which may be entered
into with the Company and/or the applicable Atlas Trust to indemnification or
contribution by the Company and/or the applicable Atlas Trust against certain
civil liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company
and its subsidiaries in the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the Company and/or the
applicable Atlas Trust may authorize agents, underwriters or dealers to solicit
offers by certain types of institutions to purchase Offered Securities from the
Company and/or the applicable Atlas Trust at the public offering prices set
forth in the applicable Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on the specified date or dates in
the future. A commission indicated in the applicable Prospectus Supplement will
be paid to underwriters, dealers and agents soliciting purchases of Offered
Securities pursuant to any such delayed delivery contracts accepted by the
Company and/or the applicable Atlas Trust.
Validity of the Certificates
Unless otherwise indicated in the applicable Prospectus Supplement, the validity
of the Certificates offered hereby will be passed upon for the Company by Cahill
Gordon & Reindel (a partnership including a professional corporation), New York,
New York. Unless otherwise indicated in the applicable Prospectus Supplement
Cahill Gordon & Reindel will rely on the opinion of counsel for the Trustee as
to certain matters relating to the authorization, execution and delivery of such
Certificates by, and the valid and binding effect thereof on, such Trustee.
Experts
The consolidated financial statements incorporated by reference in this
Prospectus and elsewhere in the Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in
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their report with respect thereto and are incorporated herein in reliance upon
the authority of said firm as experts in giving said report.
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Part II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with this offering, other than underwriting
discounts and commissions, are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration
fee............................................ $ 39,911
Printing and engraving expenses.................. 50,000
Trustee and agents' fees and expenses............ 25,000
Accountant's fees and expenses................... 60,000
Rating Agency fees............................... 30,000
Legal fees and expenses.......................... 275,000
Miscellaneous.................................... 20,089
---------
Total.................................. $500,000*
</TABLE>
- ----------
* All expenses, except the Securities and Exchange Commission registration
fee, are estimated.
Item 15. Indemnification of Directors and Officers.
The Delaware General Corporation Law and the Restated Certificate of
Incorporation of Atlas Air, Inc. (the "Charter") provide for indemnification of
directors and officers for liabilities and expenses incurred in defending
actions brought against them in such capacities. The Company's Charter provides
that the Company shall indemnify directors of the Company to the maximum extent
now or hereafter permitted by law, and officers, employees and agents of the
Company to the extent required by law and may, as authorized hereafter by the
Board of Directors, provide further indemnification to officers, employees and
agents of the Company to the maximum extent now or hereafter permitted by law.
The Company maintains directors' and officers' liability insurance
covering all directors and officers of the Company against claims arising out of
the performance of their duties.
Under each Trust Agreement, the Company will agree to indemnify each of
the Trustees of the Atlas Trusts or any predecessor Trustee for the Atlas
Trusts, and to hold the Trustee harmless against, any loss, damage, claims,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
Trust Agreements, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties under the Trust Agreements.
Item 16. Exhibits and Financial Statements Schedules.
(a) Exhibits:
Exhibit
Reference
Number Document Description
------ --------------------
@@@1.1 -- Form of Underwriting Agreement relating
to the Preferred Stock, the Common Stock
and Stock Purchase Contracts
+++1.2 -- Form of Underwriting Agreement relating
to the Debt Securities
+++1.3 -- Underwriting Agreement Standard
Provisions relating to the Pass Through
Certificates
II-1
<PAGE> 67
+3.2 -- Restated Certificate of Incorporation of
the Company
+3.3 -- Amended and Restated By-Laws of the
Company
+++4.1 -- Form of Pass Through Trust Agreement
between the Company and Wilmington Trust
Company, as Pass Through Trustee (with
form of Pass Through Certificate
attached as exhibit thereto)
@@@@4.2 -- Form of Indenture between the Company and The
First National Bank of Chicago, as Trustee
(with the form of Debt Security attached as an
exhibit thereto)
@@@@4.3 -- Trust Agreement of Atlas Air Capital I
@@@@4.4 -- Certificate of Trust of Atlas Air
Capital I
@@@@4.5 -- Trust Agreement of Atlas Air Capital II
@@@@4.6 -- Certificate of Trust of Atlas Air
Capital II
@@@@4.7 -- Trust Agreement of Atlas Air Capital III
@@@@4.8 -- Certificate of Trust of Atlas Air
Capital III
4.9 -- Form of Amended and Restated Trust
Agreement for Atlas Air Capital I (with
form of Preferred Security Certificate
attached as exhibit thereto)
4.10 -- Form of Amended and Restated Trust
Agreement for Atlas Air Capital II (with
form of Preferred Security Certificate
attached as exhibit thereto)
4.11 -- Form of Amended and Restated Trust
Agreement for Atlas Air Capital III (with
form of Preferred Security Certificate
attached as exhibit thereto)
@@@4.12 -- Form of Guarantee Agreement for Atlas
Air Capital I, Atlas Air Capital II and
Atlas Air Capital III
5.1 -- Opinion of Cahill Gordon & Reindel as to
the legality of the Preferred Stock, the
Common Stock and the Stock Purchase
Contracts
5.2 -- Opinion of Cahill Gordon & Reindel as to
the legality of the Debt Securities
5.3 -- Opinion of Cahill Gordon & Reindel as to
the legality of the Pass Through
Certificates
5.4 -- Opinion of Richards, Layton & Finger,
P.A. as to the legality of the Preferred
Securities to be issued by Atlas Air
Capital I
5.5 -- Opinion of Richards, Layton & Finger,
P.A. as to the legality of the Preferred
Securities to be issued by Atlas Air
Capital II
5.6 -- Opinion of Richards, Layton & Finger,
P.A. as to the legality of the Preferred
Securities to be issued by Atlas Air
Capital III
+10.14 -- Boeing 747 Maintenance Agreement dated
January 1, 1995, between the Company and
KLM Royal Dutch Airlines, as amended
+10.15 -- Atlas Air, Inc. 1995 Long Term Incentive
and Stock Award Plan
+10.16 -- Atlas Air, Inc. Employee Stock Purchase
Plan
+10.17 -- Atlas Air, Inc. Profit Sharing Plan
+10.18 -- Atlas Air, Inc. Retirement Plan
@10.19 -- Employment Agreement between the Company
and Michael A. Chowdry
@10.20 -- Employment Agreement between the Company
and Richard H. Shuyler
@10.23 -- Employment Agreement between the Company
and James T. Matheny
+10.26 -- Maintenance Agreement between the
Company and Hong Kong Aircraft
Engineering Company Limited dated April
12, 1995, for the performance of certain
maintenance events
***10.52 -- Employment Agreement dated as of
November 18, 1996 between the Company
and R. Terrence Rendlerman
***10.53 -- Secured Loan Agreement by and between
the Company and Finova Capital
Corporation dated April 11, 1996
***/****10.55 -- Engine Maintenance Agreement between the
Company and General Electric Company
dated June 6, 1996
**10.56 -- Employment Agreement dated as of May 1,
1997 between the Company and Stanley G.
Wraight
**10.58 -- Third Amended and Restated Credit
Agreement among the Company, the Lenders
listed therein, Goldman Sachs Credit
Partners L.P. (as Syndication Agent) and
Bankers Trust Company (as Administrative
Agent) dated September 5, 1997
**10.59 -- Credit Agreement among Atlas Freighter
Leasing, Inc., the Lenders listed
therein and Bankers Trust Company, as
agent, dated May 29, 1997
**10.60 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N516MC
**10.61 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N508MC
**10.62 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N507MC
II-2
<PAGE> 68
**10.63 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N509MC
**10.64 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N808MC
**10.65 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N505MC
**10.66 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N808MC
**10.67 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N507MC
**10.68 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N509MC
**10.69 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N505MC
**10.70 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N508MC
**10.71 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N516MC
**10.72 -- Form of Indenture, dated August 13,
1997, between the Company and State
Street Bank and Trust Company, as
Trustee, relating to the 10 3/4% Senior
Notes (with form of Note attached as
exhibit thereto)
**10.75 -- Credit Agreement among Atlas Freighter
Leasing II, Inc., the Lenders listed
therein, Bankers Trust Company (as
Administrative Agent) and Goldman Sachs
Credit Partners L.P. (as Syndication
Agent) dated September 5, 1997
**10.76 -- Lease Agreement dated September 5, 1997
between Atlas Freighter Leasing II,
Inc., as lessor, and the Company, as
lessee, relating to B747-200 aircraft,
U.S. Registration No. N527MC and Spare
Engine Nos. 517538, 517539 and 455167
**10.77 -- Lease Agreement dated September 5, 1997
between Atlas Freighter Leasing II,
Inc., as lessor, and the Company, as
lessee, relating to B747-200 aircraft,
U.S. Registration No. N523MC and Spare
Engine Nos. 530168 and 517530
**10.78 -- Lease Agreement dated September 5, 1997
between Atlas Freighter Leasing II,
Inc., as lessor, and the Company, as
lessee, relating to B747-200 aircraft,
U.S. Registration No. N524MC and Spare
Engine Nos. 517790 and 517602
**10.79 -- Lease Agreement dated September 5, 1997
between Atlas Freighter Leasing II,
Inc., as lessor, and the Company, as
lessee, relating to B747-200 aircraft,
U.S. Registration No. N526MC and Spare
Engine Nos. 517544 and 517547
**10.80 -- Security Agreement and Chattel Mortgage
dated September 5, 1997 between Atlas
Freighter Leasing II, Inc., the Company
and Bankers Trust Company, as Agent,
relating to B747-200 aircraft, U.S.
Registration No. N523MC and Spare Engine
Nos. 530168 and 517530
*10.81 -- Security Agreement and Chattel Mortgage
dated September 5, 1997 between Atlas
Freighter Leasing II, Inc., the Company
and Bankers Trust Company, as Agent,
relating to B747-200 aircraft, U.S.
Registration No. N524MC and Spare Engine
Nos. 517790 and 517602
**10.82 -- Security Agreement and Chattel Mortgage
dated September 5, 1997 between Atlas
Freighter Leasing II, Inc., the Company
and Bankers Trust Company, as Agent,
relating to B747-200 aircraft, U.S.
Registration No. N526MC and Spare Engine
Nos. 517544 and 517547
II-3
<PAGE> 69
**10.84 -- Security Agreement and Chattel Mortgage
dated September 5, 1997 between Atlas
Freighter Leasing II, Inc., the Company
and Bankers Trust Company, as Agent,
relating to B747-200 aircraft, U.S.
Registration No. N527MC and Spare Engine
Nos. 517538, 517539 and 455167
**10.85 -- First Amendment to Lease Agreement among
Atlas Freighter Leasing, Inc. and
Bankers Trust Company, as agent, dated
September 5, 1997
**/****10.86 -- Purchase Agreement Number 2021 between
The Boeing Company and the Company dated
June 6, 1997
**10.87 -- Aircraft General Terms Agreement between
The Boeing Company and the Company dated
June 6, 1997
++10.90 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1A-0
++10.91 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1A-S
++10.92 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1B-0
++10.93 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1B-S
++10.94 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1C-0
++10.95 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1C-S
++10.96 -- Deposit Agreement (Class A), dated as of
February 9, 1998, between First Security
Bank, National Association, as Escrow
Agent, and ABN AMRO Bank N.V., acting
through its Chicago Branch, as
Depositary
++10.97 -- Deposit Agreement (Class B), dated as of
February 9, 1998, between First Security
Bank, National Association, as Escrow
Agent, and ABN AMRO Bank N.V., acting
through its Chicago Branch, as
Depositary
++10.98 -- Deposit Agreement (Class C), dated as of
February 9, 1998, between First Security
Bank, National Association, as Escrow
Agent, and ABN AMRO Bank N.V., acting
through its Chicago Branch, as
Depositary
++10.99 -- Indemnity Agreement, dated as of
February 9, 1998, between ABN AMRO Bank
N.V., acting through its Chicago Branch,
as Depositary, and the Company
++10.100 -- Escrow and Paying Agent Agreement (Class
A), dated as of February 9, 1998, among
First Security Bank, National
Association, as Escrow Agent, Morgan
Stanley & Co. Incorporated, BT Alex.
Brown Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation and
Goldman, Sachs & Co., as Placement
Agents, Wilmington Trust Company, not in
its individual capacity, but solely as
Pass Through Trustee, and Wilmington
Trust Company, as Paying Agent
++10.101 -- Escrow and Paying Agent Agreement (Class
B), dated as of February 9, 1998, among
First Security Bank, National
Association, as Escrow Agent, Morgan
Stanley & Co. Incorporated, BT Alex.
Brown Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation and
Goldman, Sachs & Co., as Placement
Agents, Wilmington Trust Company, not in
its individual capacity, but solely as
Pass Through Trustee, and Wilmington
Trust Company, as Paying Agent
++10.102 -- Escrow and Paying Agent Agreement (Class
C), dated as of February 9, 1998, among
First Security Bank, National
Association, as Escrow Agent, Morgan
Stanley & Co. Incorporated, BT Alex.
Brown Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation and
Goldman, Sachs & Co., as Placement
Agents, Wilmington Trust Company, not in
its individual capacity, but solely as
Pass Through Trustee, and Wilmington
Trust Company, as
II-4
<PAGE> 70
Paying Agent
++10.103 -- Revolving Credit Agreement (1998-1A),
dated as of February 9, 1998, between
Wilmington Trust Company, not in its
individual capacity but solely as
Subordination Agent, as Borrower, and
ABN AMRO Bank N.V., acting through its
Chicago Branch as Liquidity Provider
++10.104 -- Revolving Credit Agreement (1998-1B),
dated as of February 9, 1998, between
Wilmington Trust Company, not in its
individual capacity but solely as
Subordination Agent, as Borrower, and
Morgan Stanley Capital Services, Inc.,
as Liquidity Provider
++10.105 -- Revolving Credit Agreement (1998-1C),
dated as of February 9, 1998, between
Wilmington Trust Company, not in its
individual capacity but solely as
Subordination Agent, as Borrower, and
Morgan Stanley Capital Services, Inc.,
as Liquidity Provider
++10.106 -- Guarantee, dated as of February 9, 1998,
from Morgan Stanley, Dean Witter,
Discover & Co. to Atlas Air, Inc. Pass
Through Trust 1998-B relating to Class B
Liquidity Facility
++10.107 -- Guarantee, dated as of February 9, 1998,
from Morgan Stanley, Dean Witter,
Discover & Co. to Atlas Air, Inc. Pass
Through Trust 1998-C relating to Class C
Liquidity Facility
++10.108 -- Intercreditor Agreement, dated as of
February 9, 1998, among Wilmington Trust
Company, not in its individual capacity
but solely as Trustee, ABN AMRO Bank
N.V., acting through its Chicago Branch,
as Class A Liquidity Provider, Morgan
Stanley Capital Services, Inc., as Class
B Liquidity Provider and Class C
Liquidity Provider, and Wilmington Trust
Company
++10.109 -- Note Purchase Agreement, dated as of
February 9, 1998, among the Company,
Wilmington Trust Company and First
Security Bank, National Association
++10.110 -- Employment Agreement dated as of
February 16, 1998 between the Company
and Stephen C. Nevin
*****10.111 -- Form of Indenture, dated April 9, 1998,
between the Company and State Street
Bank and Trust company, as Trustee,
relating to the 9 1/4% Senior Notes
(with form of Note attached as exhibit
thereto)
****/*****10.114 -- Engine Maintenance Agreement between the
Company and GE Engine Services, Inc.
****/*****10.115 -- Engine Maintenance Agreement between the
Company and GE Engine Services, Inc.
****/*****10.116 -- General Terms Agreement between the
Company and General Electric Company
dated June 6, 1997
++21.1 -- Subsidiaries of the Registrant
@@@@23.1 -- Consent of Independent Public
Accountants
23.2 -- Consent of Cahill Gordon & Reindel
(included in Exhibits 5.1, 5.2 and 5.3)
23.3 -- Consent of Richards, Layton & Finger
P.A. (included in Exhibits 5.4, 5.5 and
5.6).
@@@@24.1 -- Powers of Attorney (set forth on the
signature page of the Registration
Statement)
+++25.1 -- Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939, as
amended, of Wilmington Trust Company, as
Pass Through Trustee for the Pass
Through Certificates
@@@@25.2 -- Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939, as
amended, of The First National Bank of
Chicago, as Trustee for the Debt
Securities
@@@@25.3 -- Form T-1 Statement of Eligibility of The
First National Bank of Chicago to act as
trustee under the Amended and Restated
Trust Agreement of Atlas Air Capital I
@@@@25.4 -- Form of T-1 Statement of Eligibility of
The First National Bank of Chicago to
act as trustee under the Amended and
Restated Trust Agreement of Atlas Air
Capital II
@@@@25.5 -- Form of T-1 Statement of Eligibility of
The First National Bank of Chicago to
act as trustee under the Amended and
Restated Trust Agreement of Atlas Air
Capital III
- ------------
II-5
<PAGE> 71
+ Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-1 (No. 33-90304).
++ Incorporated by reference to the exhibits to the Company's Annual
Report for 1997 on Form 10-K.
+++ Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-3 (No. 333-71833).
@ Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-1 (No. 33-97892).
@@ Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-4 (No. 333-51819).
@@@ To be subsequently filed.
@@@@ Previously filed.
* Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-1 (No. 333-2810).
** Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-4 (No. 333-36305).
*** Incorporated by reference to the exhibits to the Company's Annual Report
for 1996 on Form 10-K.
**** Portions of this document, for which the Company has been granted
confidential treatment, have been redacted and filed separately with the
Securities and Exchange Commission.
***** Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-4 (No. 333-56391).
(b) Schedules.
All schedules are omitted as the required information is presented in the
Registrant's consolidated financial statements or related notes or such
schedules are not applicable.
Item 17. Undertakings.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 ("Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed pursu-
II-6
<PAGE> 72
ant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act,
each filing of the registrants' annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrants hereby undertake that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned registrants hereby undertake to file, if necessary, an
application for the purpose of determining the eligibility of the Trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act of 1939, as
amended, in accordance with the rules and regulations prescribed by the
Securities and Exchange Commission under Section 605(b)(2) of such Act.
The undersigned registrants hereby undertake to deliver or cause to be delivered
with the prospectus, to each person to whom the prospectus is sent or given, the
latest annual report to security holders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Securities Exchange act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of such registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or control-
II-7
<PAGE> 73
ling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-8
<PAGE> 74
Signatures
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Denver, State of Colorado, on the 7th day of
May, 1999.
ATLAS AIR, INC.
By: /s/ Stephen C. Nevin
----------------------------------
Name: Stephen C. Nevin
Title: Vice President and Chief
Financial Officer
Signature Title Date
--------- ----- ----
* Chairman of the Board, Chief May 7, 1999
- ------------------------- Executive Officer, President
Michael A. Chowdry and Director
* Executive Vice May 7, 1999
- ------------------------- President -- Strategic
Richard H. Shuyler Planning, Treasurer and
Director
/s/ Stephen C. Nevin Vice President and Chief May 7, 1999
- ------------------------- Financial Officer
Stephen C. Nevin
* Director May 7, 1999
- -------------------------
Berl Bernhard
* Director May 7, 1999
- -------------------------
Lawrence W. Clarkson
Director May , 1999
- -------------------------
David K.P. Li
* Director May 7, 1999
- -------------------------
David T. McLaughlin
* Director May 7, 1999
- -------------------------
Brian Rowe
* By: /s/ Stephen C. Nevin
---------------------
Attorney-in-fact
S-1
<PAGE> 75
Signatures
Pursuant to the requirements of the Securities Act of 1933, Atlas Air Capital I,
II and III, each certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Golden, State of
Colorado, on the 7th day of May, 1999.
Atlas Air Capital I
By: Atlas Air, Inc., as Depositor
By: /s/ Stephen C. Nevin
-------------------------------------
Name: Stephen C. Nevin
Title: Vice President and Chief Financial
Officer
Atlas Air Capital II
By: Atlas Air, Inc., as Depositor
By: /s/ Stephen C. Nevin
-------------------------------------
Name: Stephen C. Nevin
Title: Vice President and Chief Financial
Officer
Atlas Air Capital III
By: Atlas Air, Inc., as Depositor
By: /s/ Stephen C. Nevin
-------------------------------------
Name: Stephen C. Nevin
Title: Vice President and Chief Financial
Officer
S-2
<PAGE> 76
EXHIBITS TO FINANCIAL STATEMENTS
(a) Exhibits:
Exhibit
Reference
Number Document Description
------ --------------------
@@@1.1 -- Form of Underwriting Agreement relating
to the Preferred Stock, the Common
Stock and Stock Purchase Contracts
+++1.2 -- Form of Underwriting Agreement relating
to the Debt Securities
+++1.3 -- Underwriting Agreement Standard
Provisions relating to the Pass Through
Certificates
+3.2 -- Restated Certificate of Incorporation of
the Company
+3.3 -- Amended and Restated By-Laws of the
Company
+++4.1 -- Form of Pass Through Trust Agreement
between the Company and Wilmington Trust
Company, as Pass Through Trustee (with
form of Pass Through Certificate
attached as exhibit thereto)
@@@@4.2 -- Form of Indenture between the Company
and The First National Bank of Chicago,
as Trustee (with form of Debt Security
attached as exhibit thereto)
@@@@4.3 -- Trust Agreement of Atlas Air Capital I
@@@@4.4 -- Certificate of Trust of Atlas Air
Capital I
@@@@4.5 -- Trust Agreement of Atlas Air Capital II
@@@@4.6 -- Certificate of Trust of Atlas Air
Capital II
@@@@4.7 -- Trust Agreement of Atlas Air Capital III
@@@@4.8 -- Certificate of Trust of Atlas Air
Capital III
4.9 -- Form of Amended and Restated Trust
Agreement for Atlas Air Capital I (with
form of Preferred Security Certificate
attached as exhibit thereto)
4.10 -- Form of Amended and Restated Trust
Agreement for Atlas Air Capital II (with
form of Preferred Security Certificate
attached as exhibit thereto)
4.11 -- Form of Amended and Restated Trust
Agreement for Atlas Air Capital III (with
form of Preferred Security Certificate
attached as exhibit thereto)
@@@4.12 -- Form of Guarantee Agreement for Atlas
Air Capital I, Atlas Air Capital II and
Atlas Air Capital III
5.1 -- Opinion of Cahill Gordon & Reindel as to
the legality of the Preferred Stock, the
Common Stock and the Stock Purchase
Contracts
5.2 -- Opinion of Cahill Gordon & Reindel as to
the legality of the Debt Securities
5.3 -- Opinion of Cahill Gordon & Reindel as to
the legality of the Pass Through
Certificates
5.4 -- Opinion of Richards, Layton & Finger,
P.A. as to the legality of the Preferred
Securities to be issued by Atlas Air
Capital I
5.5 -- Opinion of Richards, Layton & Finger,
P.A. as to the legality of the Preferred
Securities to be issued by Atlas Air
Capital II
5.6 -- Opinion of Richards, Layton & Finger,
P.A. as to the legality of the Preferred
Securities to be issued by Atlas Air
Capital III
+10.14 -- Boeing 747 Maintenance Agreement dated
January 1, 1995, between the Company and
KLM Royal Dutch Airlines, as amended
+10.15 -- Atlas Air, Inc. 1995 Long Term Incentive
and Stock Award Plan
+10.16 -- Atlas Air, Inc. Employee Stock Purchase
Plan
+10.17 -- Atlas Air, Inc. Profit Sharing Plan
+10.18 -- Atlas Air, Inc. Retirement Plan
@10.19 -- Employment Agreement between the Company
and Michael A. Chowdry
@10.20 -- Employment Agreement between the Company
and Richard H. Shuyler
@10.23 -- Employment Agreement between the Company
and James T. Matheny
+10.26 -- Maintenance Agreement between the
Company and Hong Kong Aircraft
Engineering Company Limited dated April
12, 1995, for the performance of certain
maintenance events
***10.52 -- Employment Agreement dated as of
November 18, 1996 between the Company
and R. Terrence Rendlerman
***10.53 -- Secured Loan Agreement by and between
the Company and Finova Capital
Corporation dated April 11, 1996
***/****10.55 -- Engine Maintenance Agreement between the
Company and General Electric Company
dated June 6, 1996
<PAGE> 77
**10.56 -- Employment Agreement dated as of May 1,
1997 between the Company and Stanley G.
Wraight
**10.58 -- Third Amended and Restated Credit
Agreement among the Company, the Lenders
listed therein, Goldman Sachs Credit
Partners L.P. (as Syndication Agent) and
Bankers Trust Company (as Administrative
Agent) dated September 5, 1997
**10.59 -- Credit Agreement among Atlas Freighter
Leasing, Inc., the Lenders listed
therein and Bankers Trust Company, as
agent, dated May 29, 1997
**10.60 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N516MC
**10.61 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N508MC
**10.62 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N507MC
**10.63 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N509MC
**10.64 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N808MC
**10.65 -- Lease Agreement between Atlas Freighter
Leasing, Inc., as lessor, and the
Company, as lessee, relating to B747-200
aircraft. U.S. Registration No. N505MC
**10.66 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N808MC
**10.67 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N507MC
**10.68 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N509MC
**10.69 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N505MC
**10.70 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N508MC
**10.71 -- Security Agreement and Chattel Mortgage
between the Company, Atlas Freighter
Leasing, Inc. and Bankers Trust Company,
as agent, relating to B747-200 aircraft.
U.S. Registration No. N516MC
**10.72 -- Form of Indenture, dated August 13,
1997, between the Company and State
Street Bank and Trust Company, as
Trustee, relating to the 10 3/4% Senior
Notes (with form of Note attached as
exhibit thereto)
**10.75 -- Credit Agreement among Atlas Freighter
Leasing II, Inc., the Lenders listed
therein, Bankers Trust Company (as
Administrative Agent) and Goldman Sachs
Credit Partners L.P. (as Syndication
Agent) dated September 5, 1997
**10.76 -- Lease Agreement dated September 5, 1997
between Atlas Freighter Leasing II,
Inc., as lessor, and the Company, as
lessee, relating to B747-200 aircraft,
U.S. Registration No. N527MC and Spare
Engine Nos. 517538, 517539 and 455167
**10.77 -- Lease Agreement dated September 5, 1997
between Atlas Freighter Leasing II,
Inc., as lessor, and the Company, as
lessee, relating to B747-200 aircraft,
U.S. Registration No. N523MC and Spare
Engine Nos. 530168 and 517530
**10.78 -- Lease Agreement dated September 5, 1997
between Atlas Freighter Leasing II,
Inc., as lessor, and the Company, as
lessee, relating to B747-200 aircraft,
U.S. Registration No. N524MC and Spare
<PAGE> 78
Engine Nos. 517790 and 517602
**10.79 -- Lease Agreement dated September 5, 1997
between Atlas Freighter Leasing II,
Inc., as lessor, and the Company, as
lessee, relating to B747-200 aircraft,
U.S. Registration No. N526MC and Spare
Engine Nos. 517544 and 517547
**10.80 -- Security Agreement and Chattel Mortgage
dated September 5, 1997 between Atlas
Freighter Leasing II, Inc., the Company
and Bankers Trust Company, as Agent,
relating to B747-200 aircraft, U.S.
Registration No. N523MC and Spare Engine
Nos. 530168 and 517530
*10.81 -- Security Agreement and Chattel Mortgage
dated September 5, 1997 between Atlas
Freighter Leasing II, Inc., the Company
and Bankers Trust Company, as Agent,
relating to B747-200 aircraft, U.S.
Registration No. N524MC and Spare Engine
Nos. 517790 and 517602
**10.82 -- Security Agreement and Chattel Mortgage
dated September 5, 1997 between Atlas
Freighter Leasing II, Inc., the Company
and Bankers Trust Company, as Agent,
relating to B747-200 aircraft, U.S.
Registration No. N526MC and Spare Engine
Nos. 517544 and 517547
**10.84 -- Security Agreement and Chattel Mortgage
dated September 5, 1997 between Atlas
Freighter Leasing II, Inc., the Company
and Bankers Trust Company, as Agent,
relating to B747-200 aircraft, U.S.
Registration No. N527MC and Spare Engine
Nos. 517538, 517539 and 455167
**10.85 -- First Amendment to Lease Agreement among
Atlas Freighter Leasing, Inc. and
Bankers Trust Company, as agent, dated
September 5, 1997
**/****10.86 -- Purchase Agreement Number 2021 between
The Boeing Company and the Company dated
June 6, 1997
**10.87 -- Aircraft General Terms Agreement between
The Boeing Company and the Company dated
June 6, 1997
++10.90 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1A-0
++10.91 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1A-S
++10.92 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1B-0
++10.93 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1B-S
++10.94 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1C-0
++10.95 -- Pass Through Trust Agreement, dated as
of February 9, 1998, between the Company
and Wilmington Trust Company, as
Trustee, relating to the Atlas Air Pass
Through Trust 1998-1C-S
++10.96 -- Deposit Agreement (Class A), dated as of
February 9, 1998, between First Security
Bank, National Association, as Escrow
Agent, and ABN AMRO Bank N.V., acting
through its Chicago Branch, as
Depositary
++10.97 -- Deposit Agreement (Class B), dated as of
February 9, 1998, between First Security
Bank, National Association, as Escrow
Agent, and ABN AMRO Bank N.V., acting
through its Chicago Branch, as
Depositary
++10.98 -- Deposit Agreement (Class C), dated as of
February 9, 1998, between First Security
Bank, National Association, as Escrow
Agent, and ABN AMRO Bank N.V., acting
through its Chicago Branch, as
Depositary
++10.99 -- Indemnity Agreement, dated as of
February 9, 1998, between ABN AMRO Bank
N.V., acting through its Chicago Branch,
as Depositary, and the Company
++10.100 -- Escrow and Paying Agent Agreement (Class
A), dated as of February 9, 1998, among
First Security Bank, National
Association,
<PAGE> 79
as Escrow Agent, Morgan Stanley & Co.
Incorporated, BT Alex. Brown
Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation and
Goldman, Sachs & Co., as Placement
Agents, Wilmington Trust Company, not in
its individual capacity, but solely as
Pass Through Trustee, and Wilmington
Trust Company, as Paying Agent
++10.101 -- Escrow and Paying Agent Agreement (Class
B), dated as of February 9, 1998, among
First Security Bank, National
Association, as Escrow Agent, Morgan
Stanley & Co. Incorporated, BT Alex.
Brown Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation and
Goldman, Sachs & Co., as Placement
Agents, Wilmington Trust Company, not in
its individual capacity, but solely as
Pass Through Trustee, and Wilmington
Trust Company, as Paying Agent
++10.102 -- Escrow and Paying Agent Agreement (Class
C), dated as of February 9, 1998, among
First Security Bank, National
Association, as Escrow Agent, Morgan
Stanley & Co. Incorporated, BT Alex.
Brown Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation and
Goldman, Sachs & Co., as Placement
Agents, Wilmington Trust Company, not in
its individual capacity, but solely as
Pass Through Trustee, and Wilmington
Trust Company, as Paying Agent
++10.103 -- Revolving Credit Agreement (1998-1A),
dated as of February 9, 1998, between
Wilmington Trust Company, not in its
individual capacity but solely as
Subordination Agent, as Borrower, and
ABN AMRO Bank N.V., acting through its
Chicago Branch as Liquidity Provider
++10.104 -- Revolving Credit Agreement (1998-1B),
dated as of February 9, 1998, between
Wilmington Trust Company, not in its
individual capacity but solely as
Subordination Agent, as Borrower, and
Morgan Stanley Capital Services, Inc.,
as Liquidity Provider
++10.105 -- Revolving Credit Agreement (1998-1C),
dated as of February 9, 1998, between
Wilmington Trust Company, not in its
individual capacity but solely as
Subordination Agent, as Borrower, and
Morgan Stanley Capital Services, Inc.,
as Liquidity Provider
++10.106 -- Guarantee, dated as of February 9, 1998,
from Morgan Stanley, Dean Witter,
Discover & Co. to Atlas Air, Inc. Pass
Through Trust 1998-B relating to Class B
Liquidity Facility
++10.107 -- Guarantee, dated as of February 9, 1998,
from Morgan Stanley, Dean Witter,
Discover & Co. to Atlas Air, Inc. Pass
Through Trust 1998-C relating to Class C
Liquidity Facility
++10.108 -- Intercreditor Agreement, dated as of
February 9, 1998, among Wilmington Trust
Company, not in its individual capacity
but solely as Trustee, ABN AMRO Bank
N.V., acting through its Chicago Branch,
as Class A Liquidity Provider, Morgan
Stanley Capital Services, Inc., as Class
B Liquidity Provider and Class C
Liquidity Provider, and Wilmington Trust
Company
++10.109 -- Note Purchase Agreement, dated as of
February 9, 1998, among the Company,
Wilmington Trust Company and First
Security Bank, National Association
++10.110 -- Employment Agreement dated as of
February 16, 1998 between the Company
and Stephen C. Nevin
*****10.111 -- Form of Indenture, dated April 9, 1998,
between the Company and State Street
Bank and Trust company, as Trustee,
relating to the 9 1/4% Senior Notes
(with form of Note attached as exhibit
thereto)
****/*****10.114 -- Engine Maintenance Agreement between the
Company and GE Engine Services, Inc.
****/*****10.115 -- Engine Maintenance Agreement between the
Company and GE Engine Services, Inc.
****/*****10.116 -- General Terms Agreement between the
Company and General Electric Company
dated June 6, 1997
++21.1 -- Subsidiaries of the Registrant
@@@@23.1 -- Consent of Independent Public
Accountants
23.2 -- Consent of Cahill Gordon & Reindel
(included in Exhibits 5.1, 5.2 and 5.3)
23.3 -- Consent of Richards, Layton & Finger
P.A. (included in Exhibits 5.4, 5.5
<PAGE> 80
and 5.6).
@@@@24.1 -- Powers of Attorney (set forth on the
signature page of the Registration
Statement)
+++25.1 -- Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939, as
amended, of Wilmington Trust Company, as
Pass Through Trustee for the Pass
Through Certificates
@@@@25.2 -- Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939, as
amended, of The First National Bank of
Chicago, as Trustee for the Debt
Securities
@@@@25.3 -- Form T-1 Statement of Eligibility of The
First National Bank of Chicago to act as
trustee under the Amended and Restated
Trust Agreement of Atlas Air Capital I
@@@@25.4 -- Form of T-1 Statement of Eligibility of
The First National Bank of Chicago to
act as trustee under the Amended and
Restated Trust Agreement of Atlas Air
Capital II
@@@@25.5 -- Form of T-1 Statement of Eligibility of
The First National Bank of Chicago to
act as trustee under the Amended and
Restated Trust Agreement of Atlas Air
Capital III
- ------------
+ Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-1 (No. 33-90304).
++ Incorporated by reference to the exhibits to the Company's Annual Report
for 1997 on Form 10-K.
+++ Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-3 (No. 333-71833).
@ Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-1 (No. 33-97892).
@@ Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-4 (No. 333-51819).
@@@ To be subsequently filed.
@@@@ Previously filed.
* Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-1 (No. 333-2810).
** Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-4 (No. 333-36305).
*** Incorporated by reference to the exhibits to the Company's Annual Report
for 1996 on Form 10-K.
**** Portions of this document, for which the Company has been granted
confidential treatment, have been redacted and filed separately with the
Securities and Exchange Commission.
***** Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-4 (No. 333-56391).
<PAGE> 1
EXHIBIT 4.9
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
ATLAS AIR, INC., AS DEPOSITOR,
THE FIRST NATIONAL BANK OF CHICAGO,
AS PROPERTY TRUSTEE,
FIRST CHICAGO DELAWARE INC.,
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF _______________, 1999
ATLAS AIR CAPITAL I
================================================================================
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINED TERMS
Section 1.1. Definitions..................................................2
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1. Name........................................................16
Section 2.2. Office of the Delaware Trustee; Principal Place
of Business..............................................16
Section 2.3. Initial Contribution of Trust Property;
Organizational Expenses..................................16
Section 2.4. Issuance of the Preferred Securities........................16
Section 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debt Securities..........................17
Section 2.6. Declaration of Trust........................................18
Section 2.7. Authorization to Enter into Certain
Transactions.............................................18
Section 2.8. Assets of Trust.............................................23
Section 2.9. Title to Trust Property.....................................23
ARTICLE III
PAYMENT ACCOUNT
Section 3.1. Payment Account.............................................23
ARTICLE IV
DISTRIBUTIONS; REDEMPTION; REPAYMENT
Section 4.1. Distributions...............................................24
Section 4.2. Redemption..................................................26
Section 4.3. Subordination of Common Securities..........................28
Section 4.4. Payment Procedures..........................................29
Section 4.5. Tax Returns and Reports.....................................29
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust.................30
Section 4.7. Payments under Indenture....................................30
Section 4.8. Repayment at Option of Holders..............................30
-i-
<PAGE> 3
Page
----
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership...........................................32
Section 5.2. The Trust Securities Certificates...........................32
Section 5.3. Execution and Delivery of Trust Securities
Certificates.............................................33
Section 5.4. Registration of Transfer and Exchange of
Preferred Securities Certificates........................33
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates..................................34
Section 5.6. Persons Deemed Securityholders..............................35
Section 5.7. Access to List of Securityholders, Names and
Addresses................................................35
Section 5.8. Maintenance of Office or Agency.............................35
Section 5.9. Appointment of Paying Agent.................................35
Section 5.10. Ownership of Common Securities by Depositor.................36
Section 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate............................37
Section 5.12. Notices to Clearing Agency..................................38
Section 5.13. Definitive Preferred Securities Certificates................38
Section 5.14. Rights of Securityholders...................................39
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights................................42
Section 6.2. Notice of Meetings..........................................44
Section 6.3. Meetings of Preferred Securityholders.......................44
Section 6.4. Voting Rights...............................................44
Section 6.5. Proxies, etc................................................45
Section 6.6. Securityholder Action by Written Consent....................45
Section 6.7. Record Date for Voting and Other Purposes...................45
Section 6.8. Acts of Securityholders.....................................46
Section 6.9. Inspection of Records.......................................47
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Bank, the
Property Trustee and the Delaware Trustee................48
-ii-
<PAGE> 4
Page
----
Section 7.2. Representations and Warranties of Depositor.................50
ARTICLE VIII
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.........................50
Section 8.2. Certain Notices.............................................52
Section 8.3. Certain Rights of Property Trustee..........................52
Section 8.4. Not Responsible for Recitals or Issuance of
Securities...............................................55
Section 8.5. May Hold Securities.........................................56
Section 8.6. Compensation; Indemnity; Fees...............................56
Section 8.7. Corporate Property Trustee Required;
Eligibility of Trustees..................................57
Section 8.8. Conflicting Interests.......................................58
Section 8.9. Co-Trustees and Separate Trustee............................58
Section 8.10. Resignation and Removal; Appointment of
Successor................................................60
Section 8.11. Acceptance of Appointment by Successor......................62
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business..............................................63
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust.......................................64
Section 8.14. Reports by Property Trustee.................................65
Section 8.15. Reports to the Property Trustee.............................65
Section 8.16. Evidence of Compliance with Conditions
Precedent................................................66
Section 8.17. Number of Trustees..........................................66
Section 8.18. Delegation of Power.........................................67
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Termination Upon Expiration Date............................67
Section 9.2. Early Termination...........................................67
Section 9.3. Termination.................................................68
Section 9.4. Liquidation.................................................68
Section 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust................................70
ARTICLE X
MISCELLANEOUS PROVISIONS; REMARKETING
Section 10.1. Limitation of Rights of Securityholders.....................72
Section 10.2. Amendment...................................................72
Section 10.3. Separability................................................74
-iii-
<PAGE> 5
Page
----
Section 10.4. Governing Law...............................................74
Section 10.5. Payments Due on Non-Business Day............................74
Section 10.6. Successors..................................................74
Section 10.7. Headings....................................................74
Section 10.8. Reports, Notices and Demands................................74
Section 10.9. Agreement Not to Petition...................................75
Section 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act............................................76
Section 10.11. Remarketing.................................................76
Section 10.12. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture..................................79
-iv-
<PAGE> 6
ATLAS AIR CAPITAL I
Certain Sections of this Trust Agreement Relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust
Trust Indenture Agreement
Act Section Section
310 (a)(1)................................................... 8.7
(a)(2)................................................... 8.7
(a)(3)................................................... 8.9
(a)(4)................................................... 2.7(a)(ii)
(b)...................................................... 8.8
311 (a)...................................................... 8.13
(b)...................................................... 8.13
312 (a)...................................................... 5.7
(b)...................................................... 5.7
(c)...................................................... 5.7
313 (a)...................................................... 8.14(a)
(a)(4)................................................... 8.14(b)
(b)...................................................... 8.14(b)
(c)...................................................... 10.8
(d)...................................................... 8.14(c)
314 (a) . ................................................... 8.15
(b)...................................................... Not Applicable
(c)(1)................................................... 8.16
(c)(2)................................................... 8.16
(c)(3)................................................... Not Applicable
(d)...................................................... Not Applicable
(e)...................................................... 1.1, 8.16
315 (a)...................................................... 8.1(a), 8.3(a)
(b)...................................................... 8.2, 10.8
(c)...................................................... 8.1(a)
(d)...................................................... 8.1, 8.3
(e)...................................................... Not Applicable
316 (a)...................................................... Not Applicable
(a)(1)(A)................................................ Not Applicable
(a)(1)(B)................................................ Not Applicable
(a)(2)................................................... Not Applicable
(b)...................................................... 5.14
(c)...................................................... 6.7
317 (a)(1)................................................... Not Applicable
(a)(2)................................................... Not Applicable
(b)...................................................... 5.9
318 (a)...................................................... 10.10
- ----------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
-v-
<PAGE> 7
Amended and Restated Trust Agreement, dated as of __________, 1999,
among (i) Atlas Air, Inc., a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) The First National Bank of Chicago, a national
banking association duly organized and existing under the laws of the United
States, as property trustee (in such capacity, the "Property Trustee" and, in
its separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) First Chicago Delaware Inc., a Delaware corporation, as Delaware
trustee (the "Delaware Trustee"), (iv) ______________, an individual,
______________, an individual and ______________, an individual, each of whose
address is c/o Atlas Air, Inc., 538 Commons Drive, Golden, Colorado 80401 (each
an "Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
W I T N E S S E T H :
WHEREAS, the Depositor and the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into that certain Trust Agreement, dated as of April
22, 1999 (the "Original Trust Agreement"), and by the execution and filing by
the Trustees with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on April 23, 1999, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the Acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debt
Securities and (iv) the appointment of the Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, each party, for the benefit of the other
parties and for the benefit of the Securityholders, hereby amends and restates
the Original Trust Agreement in its entirety and agrees as follows:
<PAGE> 8
-2-
ARTICLE I
DEFINED TERMS
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Debt Securities for such period.
"Additional Sums" has the meaning specified in Section ______ of the
Indenture.
"Administrative Trustee" means each of , and , solely in
such Person's capacity as Administrative Trustee of the Trust formed and
continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
<PAGE> 9
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"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Atlas" means Atlas Air, Inc., a Delaware corporation.
"Authorized Newspaper" means a daily newspaper, in the English
language, customarily published on each day that is a Business Day in The City
of New York, whether or not published on days that are legal holidays, and of
general circulation in The City of New York. The Authorized Newspaper for the
purposes of the Reset Announcement Date is currently anticipated to be The Wall
Street Journal.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or the consent by it to the filing of any such petition
or to the appointment of a
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receiver, liquidator, assignee, trustee, sequestrator (or similar
official) of such Person or of any substantial part of its property, or
the making by it of an Assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a bankrupt, or the
taking of corporate action by such Person in furtherance of any such
action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Company to which authority to act on behalf of the
Board of Directors has been delegated, and to be in full force and effect on the
date of such certification, and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b)
a day on which banking institutions in the cities of New York, Chicago and
Denver are authorized or required by law or executive order to remain closed, or
(c) a day on which the Property Trustee's Corporate Trust Office or the
Corporate Trust Office of the Indenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from
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time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"Closing Date" means the First Time of Delivery, which date is also
the date of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $__ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the Property
Trustee located in Chicago, Illinois or principal office of any successor
Property Trustee.
"Coupon Rate" has the meaning specified in Section 4.1(b).
"Debt Securities" means the aggregate principal amount of the
Depositor's Debt Securities issued pursuant to the Indenture.
"Debt Securities Issuer" means Atlas Air, Inc., a Delaware
corporation.
"Debt Securities Repayment Price" means, with respect to any Debt
Securities put to the Depositor on ___, ___, an amount per Debt Security equal
to $__, plus accrued and unpaid interest (including deferred interest, if any).
"Definitive Preferred Securities Certificates" means either or both
(as the context requires) of (a) Preferred Secu-
<PAGE> 12
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rities Certificates issued as Book-Entry Preferred Securities Certificates as
provided in Section 5.11(a) and (b) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Direct Action" has the meaning specified in Section 5.14(c).
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Event of Default" means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of an Indenture Event of Default; or
(b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Trus-
<PAGE> 13
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tees in this Trust Agreement (other than a covenant or warranty a default
in the performance or breach of which is dealt with in clause (b) or (c)
above and continuation of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the
defaulting Trustee or Trustees by the Holders of at least 25% in aggregate
liquidation preference of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 60 days thereof.
"Exchange Agent" means the Person acting as Property Trustee.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Failed Remarketing" has the meaning specified in Section 5.4(b) of
the Purchase Contract Agreement.
"First Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and The First National Bank of Chicago, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Preferred Securities, as amended from time to
time.
"Indenture" means the Debt Securities Indenture, dated as of April
___, 1999, between the Depositor and the Indenture Trustee, as trustee, as
amended or supplemented from time to time.
"Indenture Event of Default" means an "Event of Default" as defined
in the Indenture.
<PAGE> 14
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"Indenture Redemption Date" means, with respect to any Debt
Securities to be redeemed under the Indenture, the date fixed for redemption
under the Indenture.
"Indenture Trustee" means The First National Bank of Chicago, a
national banking association and any successor thereto.
"Investment Company Event" means the receipt by the Trust of an
Opinion of Counsel, rendered by a law firm having a recognized national tax and
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), to the effect that the Trust is or will
be considered an "investment company" that is required to be registered under
the 1940 Act, which Change in 1940 Act Law becomes effective on or after the
date of original issuance of the Preferred Securities under this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed
of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debt Securities to be contemporaneously redeemed in accordance with
the Indenture, the proceeds of which will be used to pay the Redemption Price of
such Trust Securities, and (b) with respect to a distribution of Debt Securities
to Holders of Trust Securities in connection with a dissolution or liquidation
of the Trust, Debt Securities having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Debt Securities are
distributed.
"Liquidation Amount" means the stated amount of $ per Trust
Security.
"Liquidation Date" means the date on which Debt Securities are to be
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Trust pursuant to Section 9.4(a).
<PAGE> 15
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"Liquidation Distribution" has the meaning specified in Section
9.4(d).
"Ministerial Action" means the taking of an action, such as filing a
form or making an election, or pursuing some other similar reasonable measure
that will have no adverse affect on the Trust, the Depositor, the Trustees or
the Holders of the Securities and will involve no material cost.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman
and Chief Executive officer, President or a Vice President, and by the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee.
<PAGE> 16
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"Original Trust Agreement" has the meaning specified in the recitals
to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
executed and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore cancelled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred Securities;
provided that, if such Preferred Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or
in lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Depositor, one or more of
the Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency
<PAGE> 17
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Participant is not the Owner, then as reflected in the records of a Person
maintaining an account with such Clearing Agency (directly or indirectly, in
accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debt Securities will be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Sections 4.1 and
4.2.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Pledge Agreement" means the Pledge Agreement dated as of , 1999
among the Depositor, , as collateral agent (the "Collateral Agent") and
custodial agent (the "Custodial Agent") and securities intermediary (the
"Securities Intermediary") and The First National Bank of Chicago as purchase
contract agent (the "Purchase Contract Agent").
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
E.
"Primary Treasury Dealer" means a primary U.S. government securities
dealer in The City of New York.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in
<PAGE> 18
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such capacity, or any successor property trustee appointed as herein provided.
"Purchase Contract Agreement" means the Purchase Contract Agreement
dated as of , 1999 between The First National Bank of Chicago, as
Purchase Contract Agent, and the Depositor.
"Purchase Contract Settlement Date" means , .
"Put Option" has the meaning specified in Section 4.8.
"Put Option Exercise Date" has the meaning in Section 4.8.
"Put Option Repayment Price" has the meaning in Section 4.8.
"Quotation Agent" means (i) and its respective
successors, provided, however, that if the foregoing shall cease to be a Primary
Treasury Dealer, the Depositor shall substitute therefor another Primary
Treasury Dealer or (ii) any other Primary Treasury Dealer selected by the
Depositor.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Indenture Redemption Date and the stated maturity
of the Debt Securities shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debt Securities, allocated on a pro rata basis (based on Liquidation Amounts)
among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Remarketing Agent" means , or such other
persons who shall be the remarketing agent under the Remarketing Agreement.
<PAGE> 19
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"Remarketing Agreement" means the Remarketing Agreement among the
Debt Securities Issuer, the Trust, The First National Bank of Chicago, as
Purchase Contract Agent, and the Remarketing Agent.
"Remarketing Date" shall mean the third Business Day immediately
preceding the Purchase Contract Settlement Date.
"Reset Agent" means , a nationally recognized investment
banking firm chosen by the Depositor to determine the Reset Rate.
"Reset Announcement Date" means the tenth Business Day immediately
preceding the Purchase Contract Settlement Date.
"Reset Rate" means the distribution rate per annum (to be determined
by the Reset Agent), equal to the sum of (X) the Reset Spread and (Y) the rate
of interest on the Two-Year Benchmark Treasury in effect on the third Business
Day immediately preceding the Purchase Contract Settlement Date that the
Preferred Securities should bear in order for the Preferred Securities to have
an approximate market value of ___% of their aggregate stated liquidation
amount on the third Business Day immediately preceding the Purchase Contract
Settlement Date; provided, that the Depositor may limit such Reset Spread to be
no higher than ___ basis points (___%) and the Depositor shall limit the
Reset Rate, if applicable, to the maximum rate permitted by applicable law.
"Reset Spread" means a spread amount to be determined by the Reset
Agent on the tenth Business Day immediately preceding the Purchase Contract
Settlement Date.
"Second Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be a beneficial owner within the meaning of the Delaware Business
Trust Act; provided, however, that in determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter provided for
in this Trust Agreement, then
<PAGE> 20
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for the purpose of any such determination, so long as Definitive Preferred
Securities Certificates have not been issued, the term Securityholders or
Holders as used herein shall refer to the Owners.
"Successor Securities" shall have the meaning specified in Section
9.5.
"Supplemental Remarketing Agreement" means the agreement to be dated
as of the third Business Day immediately preceding the Purchase Contract
Settlement Date among Atlas, the Trust (if applicable), The First National Bank
of Chicago, and the Remarketing Agent.
"Termination Event" has the meaning set forth in Section 1.1 of the
Purchase Contract Agreement.
"Time of Delivery" means, collectively, the First Time of Delivery
and the Second Time of Delivery.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Treasury Securities" has the meaning set forth in Section 1.1 of
the Purchase Contract Agreement.
"Trust" means the Delaware business trust created and continued
hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement,
as the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
<PAGE> 21
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"Trust Property" means (a) the Debt Securities, (b) any cash on
deposit in, or owing to, the Payment Account and (c) all proceeds and rights in
respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to the trusts of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Two-Year Benchmark Treasury" means direct obligations of the United
States (which may be obligations traded on a when-issued basis only) having a
maturity comparable to the remaining term to maturity of the Trust Securities,
as agreed upon by the Depositor and the Reset Agent. The rate for the Two-Year
Benchmark Treasury will be the bid side rate displayed at 10:00 A.M., New York
City time, on the third Business Day immediately preceding the Purchase Contract
Settlement Date in the Telerate system (or if the Telerate system is (a) no
longer available on the third Business Day immediately preceding the Purchase
Contract Settlement Date or (b) in the opinion of the Reset Agent (after
consultation with the Depositor) no longer an appropriate system from which to
obtain such rate, such other nationally recognized quotation system as, in the
opinion of the Reset Agent (after consultation with the Depositor) is
appropriate). If such rate is not so displayed, the rate for the Two-Year
Benchmark Treasury shall be, as calculated by the Reset Agent, the yield to
maturity for the Two-Year Benchmark Treasury, expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis, and computed by taking the arithmetic mean of the secondary market bid
rates, as of 10:30 A.M., New York City time, on the third Business Day
immediately preceding the Purchase Contract Settlement Date of three leading
United States government securities dealers selected by the Reset Agent (after
consultation with the Depositor) which may include the Reset Agent or an
Affiliate thereof.
"Underwriting Agreement" means the Pricing Agreement, dated as of
________, 1999, among the Trust, the Depositor and
<PAGE> 22
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the underwriters named therein incorporating the Underwriting Agreement dated
__________, 1999.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1. Name.
The Trust continued hereby shall be known as "Atlas Air Capital I,"
as such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and sue and
be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is c/o
FCC National Bank, 300 King Street, Wilmington, Delaware 19801, Attention:
Corporate Trust Administration, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Securityholders
and the Depositor. The principal executive office of the Trust is c/o Atlas Air,
Inc., 538 Commons Drive, Golden, Colorado 80401.
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.4. Issuance of the Preferred Securities.
On _________, 1999 the Depositor, on behalf of the Trust and
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously
<PAGE> 23
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with the execution and delivery of this Trust Agreement, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Sections 5.2
and 5.3 and deliver to the Underwriters named in the Underwriting Agreement
Preferred Securities Certificates, registered in the name of the nominee of the
initial Clearing Agency, in an aggregate amount of Preferred Securities having
an aggregate Liquidation Amount of $__________, against receipt of such
aggregate purchase price of such Preferred Securities of $_________, which
amount the Administrative Trustee shall promptly deliver to the Property
Trustee. If there is a Second Time of Delivery, an Administrative Trustee, on
behalf of the Trust, shall execute in accordance with Sections 5.2 and 5.3 and
deliver to the Underwriters named in the Underwriting Agreement Preferred
Securities Certificates, registered in the name of the nominee of the initial
Clearing Agency, in an aggregate amount of up to Preferred Securities having an
aggregate Liquidation Amount of up to $________, against receipt of such
aggregate purchase price of such Preferred Securities of $__________, which
amount such Administrative Trustees shall promptly deliver to the Property
Trustee, on the date specified pursuant to the Underwriting Agreement.
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of
Debt Securities.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Sections 5.2 and 5.3 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of Common Securities having an aggregate Liquidation Amount of
$__________ against payment by the Depositor of such amount. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe to
and purchase from the Depositor Debt Securities, registered in the name of the
Trust and having an aggregate principal amount equal to $__________, and, in
satisfaction of the purchase price for such Debt Securities, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$____________. If there is a Second Time of Delivery, an Administrative Trustee,
on behalf of the Trust, shall execute in accordance with Sections 5.2 and 5.3
and deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of up to Common Securities having
an aggregate Liquidation Amount of up to $_________ against payment by the
Depositor of such amount. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Debt Securities, registered in the name of
<PAGE> 24
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the Trust and having an aggregate principal amount of up to $__________, and, in
satisfaction of the purchase price for such Debt Securities, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the amount
received from one of the Administrative Trustees pursuant to the last sentence
of Section 2.4.
Section 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Debt Securities, and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Trust with respect to the
following matters:
<PAGE> 25
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(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function
of the Trust;
(C) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents
pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debt
Securities to the Securityholders in accordance with this Trust
Agreement;
(F) the appointment of a Paying Agent, authenticating agent
and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance
with this Trust Agreement;
(H) to the extent provided in this Trust Agreement the winding
up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees, or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to
execute on behalf of the Trust (either acting alone or together with
any or all of the Administrative Trustees) any documents that the
Administrative Trus-
<PAGE> 26
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tees have the power to execute pursuant to this Trust Agreement;
(J) the entering into of a Debt Security purchase agreement
and Common Securities purchase agreement with the Depositor;
(K) the giving to the Depositor and the Property Trustee
prompt written notice of the occurrence of an Investment Company
Event; provided that the Administrative Trustees shall consult with
the Depositor before taking any Ministerial Action in relation to an
Investment Company Event; and
(L) the taking of any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement for
the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to
the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debt Securities;
(C) the collection of interest, principal and any other
payments made in respect of the Debt Securities in the Payment
Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Debt Securities;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debt Securities to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
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(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Trust Agreement and protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder);
(J) the engagement in such Ministerial Action as shall be
necessary, appropriate, convenient or incidental to effect repayment
of the Preferred Securities and the Common Securities to the extent
the Debt Securities mature or are redeemed or the Put Option is
exercised; and
(K) except as otherwise provided in this Section 2.7(a)(ii),
the Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth in
Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interest therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for United States Federal
income tax purposes, (iv) incur any indebtedness for borrowed money or issue any
other debt or (v) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property. The Administrative Trustees
shall defend all claims and demands of all Persons at any time claiming any Lien
on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
<PAGE> 28
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(c) In connection with the issue and sale of the Preferred
Securities, and, if necessary, the remarketing of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Preferred Securities, including any
amendments thereto;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice
to the Trustees of actions they must take on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of any
such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form
8-A relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of the Remarketing Agreement, the
Supplemental Remarketing Agreement and theUnderwriting Agreement providing
for the sale of the Preferred Securities;
(vi) the execution and entering into of the Underwriting Agreement,
the Remarketing Agreement, the Debt Securities purchase agreement and
Common Securities purchase
<PAGE> 29
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agreement and, if applicable, the Supplemental Remarketing Agreement; and
(vii) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
of 1940, as amended, or taxed as a corporation for United States Federal income
tax purposes and so that the Debt Securities will be treated as indebtedness of
the Depositor for United States Federal income tax purposes. In this connection,
the Depositor and the Administrative Trustees are authorized to take any action,
not inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and the Administrative Trustees determines
in their discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the holders of the Preferred Securities.
Section 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in
the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust and the
Securityholders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclu-
<PAGE> 30
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sive control and sole right of withdrawal with respect to the Payment Account
for the purpose of making deposits in and withdrawals from the Payment Account
in accordance with this Trust Agreement. All monies and other property deposited
or held from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the Securityholders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debt Securities. Amounts held in
the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION; REPAYMENT
Section 4.1. Distributions.
(a) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for the
payment of Distributions. Distributions shall accrue from ____________,
_________, and, except in the event that the Depositor exercises its right to
defer the payment of interest on the Debt Securities pursuant to the Indenture,
shall be payable quarterly in arrears on __________, ______, _________ and
___________ of each year, commencing on ______________, 1999. If any date on
which a Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date (each date on which distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property, and, as a practical matter, the Distributions on the Trust
Securities shall be payable
<PAGE> 31
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at a rate of ___% per annum (the "Coupon Rate") of the Liquidation Amount of the
Trust Securities through and including , and at the Reset
Rate thereafter, such rates being the rates of interest payable on the Debt
Securities to be held by the property Trustee. Distributions in arrears for more
than one quarter will accumulate and compound quarterly at the rate per annum of
% through and including , and at the Reset Rate
thereafter (to the extent permitted by applicable law). Distributions that are
deferred will continue to accumulate at a rate per annum of % through and
including , and at the Reset Rate thereafter, compounded
quarterly through the deferral period to the extent permitted by applicable law.
The amount of Distributions payable for any full period shall be computed on the
basis of a 360-day year of twelve 30-day months. The amount of Distributions for
any partial period shall be computed on the basis of the number of days elapsed
in a 360-day year of twelve 30-day months. The amount of Distributions payable
for any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to such Distribution Date; provided, however,
that in the event that the Preferred Securities do not remain in book-entry-only
form, the relevant record date shall be the date 15 days prior to the relevant
Distribution Date.
(e) The Coupon Rate on the Trust Securities (as well as the interest
rate on the Debt Securities) will be reset on the third Business Day immediately
preceding the Purchase Contract Settlement Date to the Reset Rate (which Reset
Rate will be in effect on and after the Purchase Contract Settlement Date). On
the Reset Announcement Date, the Reset Spread and the Two-Year Benchmark
Treasury to be used to determine the Reset Rate will be announced by the
Depositor. On the Business Day immediately following the Reset Announcement
Date, the Holders of Trust Securities will be notified of such Reset Spread and
Two-Year Benchmark Treasury by the Depositor. Such notice shall be sufficiently
given to Holders of Securities if published in an Authorized Newspaper.
<PAGE> 32
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(f) Not later than seven calendar days nor more than 15 calendar
days prior to the Reset Announcement Date, the Depositor will request DTC or its
nominee (or any successor Clearing Agency or its nominee) to notify the Owners
of Preferred Securities and Clearing Agency Participants holding Preferred
Securities of such Reset Announcement Date.
Section 4.2. Redemption.
(a) On each Indenture Redemption Date and on the stated maturity of
the Debt Securities, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debt Securities. Redemptions of the Trust Securities shall be made
and the Redemption Price shall be payable on each Redemption Date only to the
extent that the Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Preferred Securities, then, by 12:00
<PAGE> 33
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noon, New York City time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee will, so long as the Preferred Securities are in
book-entry-only form, irrevocably deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption Price and
will give such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the holders thereof. If the Preferred Securities are no
longer in book-entry-only form, the Property Trustee, subject to Section 4.2(c),
will irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof
upon surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Securityholders holding Trust Securities so
called for redemption will cease, except the right of such Securityholders to
receive the Redemption Price and any Distribution payable on or prior to the
Redemption Date, but without interest, and such Securities will cease to be
outstanding. In the event that any date on which any Redemption Price is payable
is not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made on such date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue, at
the then applicable rate, from the Redemption Date originally established by the
Trust or such Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the record holders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date, which shall be one Business
Day prior
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to the relevant Redemption Date; provided, however, that in the event that the
Preferred Securities do not remain in book-entry-only form, the relevant record
date shall be the date fifteen days prior to the relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $ or an integral multiple of $ in excess thereof)
of the Liquidation Amount of Preferred Securities of a denomination larger than
$ . The Property Trustee shall promptly notify the Security Registrar in
writing of the Preferred Securities selected for redemption and, in the case of
any Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities that has been or is to be redeemed.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 4.2(f), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from an Indenture Event of
Default shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or Redemption Price of, any
Common Security, and no other payment on account of the redemption, liquidation
or other acquisition of Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Preferred Securities for all
Distribution periods ter-
<PAGE> 35
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minating on or prior thereto, or in the case of payment of the Redemption Price
the full amount of such Redemption Price on all Outstanding Preferred
Securities, shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the payment in full
in cash of all Distributions (including Additional Amounts, if applicable) on,
or the Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Indenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not the Holder of the Common Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made by check mailed
to the address of the Person entitled thereto as such address shall appear on
the Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable distribution dates. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Common Securityholder.
Section 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense, and file all United States Federal, state and local
tax and information returns and reports required to be filed by or in respect of
the Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the appropriate Internal Revenue
Service Form required to be filed in respect of the Trust in each taxable year
of the Trust and (b)
<PAGE> 36
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prepare and furnish (or cause to be prepared and furnished) to each
Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debt Securities of Additional Sums, the
Property Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
Section 4.7. Repayment at Option of Holders.
(a) If a Failed Remarketing (as described in Section 5.4(b) of the
Purchase Contract Agreement and incorporated herein by reference) has occurred,
each holder of Trust Securities who holds such Trust Securities on the day
immediately following the Purchase Contract Settlement Date, shall have the
right (the "Put Option") on the Business Day immediately following _____,
_____ to require the Trust to distribute their pro rata share of the Debt
Securities to the Exchange Agent and to require the Exchange Agent to put such
Debt Securities to the Debt Securities Issuer on behalf of such holders on
_____, _____, upon at least three Business Days' prior notice (the "Put Option
Exercise Date"), at a repayment price of $___, ___ per Trust Security plus an
amount equal to the accrued and unpaid Distributions (including deferred
distributions if any) thereon to the date of payment (the "Put Option Repayment
Price").
(b) The Exchange Agent shall obtain funds to pay the Put Option
Repayment Price of Trust Securities being repaid un-
<PAGE> 37
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der the Put Option through presentation by it to the Debt Securities Issuer of
Debt Securities in an aggregate principal amount equal to the aggregate stated
liquidation amount of such Trust Securities for repayment on the Put Option
Exercise Date at the Put Option Repayment Price.
(c) In order for the Trust Securities to be repaid on the Put Option
Exercise Date, the Trust must receive on or prior to 4:00 p.m. on the third
Business Day immediately preceding the Put Option Exercise Date, at the
Corporate Trust Office or the New York Office of the Property Trustee (who will
in turn notify the Exchange Agent), the Trust Securities to be repaid with the
form entitled "Option to Elect Repayment" on the reverse thereof or otherwise
accompanying such Trust Security duly completed. Any such notice received by the
Trust shall be irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of the Trust Securities for repayment
shall be determined by the Trust, whose determination shall be final and
binding.
(d) Payment of the Put Option Repayment Price to Holders of Trust
Securities shall be made at the Corporate Trust Office of the Exchange Agent,
provided that the Debt Securities Issuer has paid the Exchange Agent a
sufficient amount of cash in connection with the related repayment of the Debt
Securities no later than 1:00 p.m., New York City time, on the Put Option
Exercise Date by check or wire transfer in immediately available funds at such
place and to such account as may be designated by such Holders. If the Exchange
Agent holds immediately available funds sufficient to pay the Put Option
Repayment Price of such Trust Securities, then, immediately prior to the close
of business on the Put Option Exercise Date, such Trust Securities will cease to
be outstanding and Distributions thereon will cease to accrue, whether or not
Trust Securities are delivered to the Property Trustee, and all other rights of
the Holder in respect of such Trust Securities, including the Holder's right to
require the Trust to repay such Trust Securities, shall terminate and lapse
(other than the right to receive the Put Option Repayment Price but without
interest on such Put Option Repayment Price). Neither the Administrative
Trustees nor the Trust shall be required to register or cause to be registered
the transfer of any Trust Securities for which repayment has been elected. If
payment of the Put Option Repayment Price in respect of Trust Securities is (i)
improperly withheld or refused and not paid either by the Exchange Agent or by
the Depositor as guarantor pursuant to the Guarantee, or (ii) not paid by the
Exchange Agent as the result of an Event of Default with respect to the Debt
Securities presented for
<PAGE> 38
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repayment as described in Section 4.8(b), Distributions on such Trust Securities
will continue to accrue from and including the original Put Option Exercise Date
to the actual date of payment, in which case the actual payment date will be
considered the Put Option Exercise Date for purposes of calculating the Put
Option Repayment Price.
(e) The Debt Securities Issuer will request, not later than seven
nor more than 15 calendar days prior to _____, _____ (the date on which some or
all of the Preferred Securities could be remarketed in the manner described in
Section 5.4(b) of the Purchase Contract Agreement and incorporated herein by
reference) that the Clearing Agency notify the Owners of Preferred Securities of
such remarketing and of the procedures that must be followed if an Owner of
Preferred Securities wishes to exercise such holder's rights with respect to the
Put Option.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.
Upon the formation of the Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Trust.
Section 5.2. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $ Liquidation Amount and integral multiples of $ in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $ Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by manual
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
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Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11
and 5.13.
Section 5.3. Execution and Delivery of Trust Securities Certificates.
At each Time of Delivery, the Administrative Trustees shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
Section 5.4. Registration of Transfer and Exchange of Preferred Securities
Certificates.
The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8. a register or registers for the
purpose of registering Trust Securities Certificates and transfers and exchanges
of Preferred Securities Certificates (the "Securities Register") in which, the
registrar designated by the Depositor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees.
The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have
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been called for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange shall be cancelled and subsequently disposed of by an
Administrative Trustee in accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall con-
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stitute conclusive evidence of an undivided beneficial interest in the assets of
the Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
Section 5.6. Persons Deemed Securityholders.
The Administrative Trustees or the Securities Registrar shall treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
Section 5.7. Access to List of Securityholders, Names and Addresses.
Securityholders and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 5.8. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be served.
The Administrative Trustees initially designate Atlas Air, Inc., 538 Commons
Drive, Golden, Colorado 80401, as its principal corporate trust office for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
Section 5.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to Securityholders from
the Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that
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the Paying Agent shall have failed to perform its obligations under this Trust
Agreement in any material respect. The Paying Agent shall initially be the Bank,
and any co-paying agent chosen by the Bank, and acceptable to the Administrative
Trustees and the Depositor. Any Person acting as Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Administrative
Trustees, the Property Trustee and the Depositor. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall
apply to the Bank also in its role as Paying Agent, for so long as the Bank
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
Section 5.10. Ownership of Common Securities by Depositor.
At each Time of Delivery, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the fullest extent
permitted by law, other than a transfer in connection with a consolidation or
merger of the Depositor into another corporation, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section ____ of the Indenture, any attempted transfer
of the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN AS SET FORTH IN THE
TRUST AGREEMENT (AS DEFINED BELOW)."
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Section 5.11. Book-Entry Preferred Securities Certificates; Common Securities
Certificate.
(a) The Preferred Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency by, or on
behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
Definitive Preferred Securities Certificate representing such owner's interest
in such Preferred Securities, except as provided in Section 5.13. Unless and
until Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force
and effect;
(ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust Agreement
relating to the Book-Entry Preferred Securities Certificates (including
the payment of the Liquidation Amount of and Distributions on the
Book-Entry Preferred Securities and the giving of instructions or
directions to Owners of Book-Entry Preferred Securities) as the sole
Holder of Book-Entry Preferred Securities and shall have no obligations to
the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Trust Agreement, the provisions
of this Section 5.11 shall control; and
(iv) the rights of the owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Certificate Depository Agreement, unless and until Definitive
Preferred Securities Certificates are issued pursuant to Section 5.13, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit pay-
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ments on the Preferred Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13. Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Securities Certificates, and the
Depositor is unable to locate a qualified successor, (b) the Depositor at its
option advises the Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence of an
Indenture Event of Default, Owners of Preferred Securities Certificates
representing beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Administrative Trustees in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Owners of Preferred Securities Certificates, then the
Administrative Trustee shall notify the Clearing Agency and the Clearing Agency
shall notify all Owners of Preferred Securities Certificates and the other
Trustees of the occurrence of any such event and of the availability of the
Definitive Preferred Securities Certificates to Owners of such class or classes,
as applicable, requesting the same. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or Certificates
representing the Book Entry Preferred Securities Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative Trustees,
or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. Neither
the Securities Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively
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rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
Section 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with Section 2.9,
and the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon an Indenture Event of Default, the Indenture Trustee fails or the holders
of not less than 25% in principal amount of the outstanding Debt Securities fail
to declare the principal of all of the Debt Securities to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in writing to the
Depositor and the Indenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debt Securities shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
the Debt Securities has been made and before a judgment or decree for payment of
the money due has been obtained by the Indenture Trustee as in the Indenture
provided, the Holders of a majority in Liquidation Amount of the Pre-
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ferred Securities, by written notice to the Property Trustee, the Depositor and
the Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Indenture Trustee a
sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of the
Debt Securities,
(B) the principal of (and premium, if any, on) any Debt
Securities which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the Debt
Securities, and
(C) all sums paid or advanced by the Indenture Trustee under
the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and the Property
Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debt Securities,
other than the non-payment of the principal of the Debt Securities which
has become due solely by such acceleration, have been cured or waived as
provided in Section _____ of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Indenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Debt Security. No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of the
Preferred Securities all or part of which is represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of
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business on the day the Property Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided that, unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.14(c).
(c) For so long as any Preferred Securities remain Outstanding, to
the fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Indenture, upon an Indenture Event of Default specified in
Section ______ or ______ of the Indenture, any Holder of Preferred Securities
shall have the right to institute a proceeding directly against the Depositor,
pursuant to Section ___ of the Indenture, for enforcement of payment to such
Holder of the principal amount of or interest on Debt Securities having a
principal amount equal to the Liquidation Amount of the Preferred Securities of
such Holder (a "Direct Action"). In connection with any such Direct Action, the
Holders of the Common Securities will be subrogated to the rights of any Holder
of the Preferred Securities to the extent of any payment made by the Depositor
to such Holder of Preferred Securities as a result of such Direct Action. Except
as set forth in Section 5.14(b) and (c), the Holders of Preferred Securities
shall have no right to exercise directly any right or remedy available to the
holders of, or in respect of, the Debt Securities.
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ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and
10.2 and in the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) So long as any Debt Securities are held by the Property Trustee,
the Property Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Debt Securities, (ii) waive any past default which is waivable under
Section _____ of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debt Securities shall be due and
payable or (iv) consent to an amendment, modification or termination of the
Indenture or the Debt Securities, where such consent shall be required, without,
in each case, obtaining the prior approval of the Holders of at least a majority
in Liquidation Amount of all Outstanding Preferred Securities, provided,
however, that where a consent under the Indenture would require the consent of
the Holders of more than a majority of the aggregate principal amount of Debt
Securities affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of at least the same proportion in
Liquidation Amount of Preferred Securities. The Trustees shall not revoke any
action previously authorized or approved by a vote of the Holders of Preferred
Securities, except by a subsequent vote of the Holders of Preferred Securities.
The Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Indenture Trustee with respect to the Debt
Securities. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be classified
as
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an association taxable as a corporation for United States Federal income tax
purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Trust Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Trust Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least 66 2/3% in Liquidation
Amount of the Outstanding Trust Securities; provided, however, that if an
amendment affects only the powers, preferences or special rights of Preferred
Securities or Common Securities, then such 66 2/3% approval is required only
from the affected class. Notwithstanding any other provision of this Trust
Agreement, no amendment to this Trust Agreement may be made if, as a result of
such amendment, the Trust would cause the Trust to fail or cause to be
classified as a grantor trust for United States Federal income tax purposes.
(d) In the event the consent of the Property Trustee as holder of
the Debt Securities is required under the Indenture with respect to any
amendment or modification of the Indenture, the Property Trustee shall request
the direction of the Holders of the Trust Securities with respect to such
amendment or modification and shall vote with respect to such amendment or
modification as directed by the Holders of a majority in Liquidation Amount of
the Trust Securities voting together as a single class; provided, however that
where a consent under the Indenture would require the consent of more than a
majority of the aggregate principal amount of Debt Securities, the Property
Trustee may only give such consent at the direction of the Holders of at least
the same proportion in an aggregate Liquidation Amount of the Trust Securities;
provided further, that the Property Trustee shall not take any action in
accordance with the directions of the Holders of Trust Securities under this
Section 6.1(d) unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that the Trust will not be classified as
other than a grantor trust for United States federal income tax purposes as a
result of such action and that each Holder of Trust Securities will be treated
as owning an undivided beneficial ownership interest in the corresponding Debt
Securities.
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Section 6.2. Notice of Meetings.
The Administrative Trustees will direct the Property Trustee to
cause a notice of all meetings of the Preferred Securityholders to be given
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. Each such notice will include a statement setting forth (i) the date,
time and place of such meeting, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote, and
(iii) instructions for the delivery of proxies. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
Section 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% of the Preferred Securities (based upon their Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at anytime in their
discretion, call a meeting of Preferred Securityholders to vote on any matters
as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the outstanding
Preferred Securities (based upon their Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based upon their Liquidation
Amount) held by the Preferred Securityholders of record present, either in
person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
Section 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $ of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote. Notwithstanding the preceding
sentence, any Pre-
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ferred Securities that are owned by the Depositor, the Trustees or any Affiliate
of the Depositor or any Trustee, will not be entitled to vote and will, for
purposes of voting, be treated as if such Preferred Securities were not
outstanding; provided, however, that the foregoing limitation on voting shall
not apply if all of the Outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any Affiliate of the Depositor or
any Trustee.
Section 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to
vote thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the Administrative
Trustees may direct, for verification prior to the time at which such vote shall
be taken. Pursuant to a resolution of the Property Trustee, proxies may be
solicited in the name of the Property Trustee or one or more officers of the
Property Trustee. Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several persons, any one of them may vote
at any meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
Section 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting and without notice if Securityholders holding more than
a majority of all Outstanding Trust Securities (based upon their Liquidation
Amount) entitled to vote in respect of such action (or such larger proportion
thereof as shall be required by any express provision of this Trust Agreement)
shall consent to the action in writing.
Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled
to notice of and to vote at any meeting or by written consent, or to participate
in any distribution on the
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Trust Securities in respect of which a record date is not otherwise provided for
in this Trust Agreement, or for the purpose of any other action, the
Administrative Trustees may from time to time fix a date, not more than 90 days
prior to the date of any meeting of Securityholders or the payment of a
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders or Owners may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders or Owners in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders or Owners signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.1) conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any
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Trust Security shall bind every future Securityholder of the same Trust Security
and the Securityholder of every Trust Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the Trust in
reliance thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Securityholder entitled hereunder
to take any action hereunder with regard to any particular Trust Security may do
so with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such liquidation
amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Bank, the Property Trustee
and the Delaware Trustee.
The Bank, Property Trustee and the Delaware Trustee, each severally
on behalf of and as to itself, hereby represents and warrants for the benefit of
the Depositor and the Securityholders that:
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly organized,
validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement and
satisfies for the Trust Section 3807 of the Delaware Business Trust Act;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes
the valid and legally binding agreement of each of the Property Trustee
and the Delaware Trustee enforceable against each of them in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(f) the execution, deliver and performance of this Trust Agreement
has been duly authorized by all necessary corporate or other action on the
part of the Property
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Trustee and the Delaware Trustee and does not require any approval of
stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or
By-laws of the Property Trustee or the Delaware Trustee, (ii) 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 indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Delaware Trustee is a
party or by which it is bound, or (iii) violate any law, governmental rule
or regulation of the United States or the State of Delaware, as the case
may be, governing the banking, trust or general powers of the Property
Trustee or the Delaware Trustee (as appropriate in context) or any order,
judgment or decree applicable to the Property Trustee or the Delaware
Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee (as appropriate in context) contemplated herein or
therein 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
governmental authority or agency under any existing Federal law governing
the banking, trust or general powers of the Property Trustee or the
Delaware Trustee, as the case may be, under the laws of the United States
or the State of Delaware;
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened
against or affecting the Property Trustee or the Delaware Trustee in any
court or before an governmental authority, agency or arbitration board or
tribunal which, individually or in the aggregate, would materially and
adversely affect the Trust or would question the right, power and
authority of the Property Trustee or the Delaware Trustee, as the case may
be, to enter into or perform its obligations as one of the Trustees under
this Trust Agreement.
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Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Time of
Delivery on behalf of the Trust have been duly authorized and will have
been, duly and validly executed, issued and delivered by the Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement and the Securityholders will be, as
of each such date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Trust (or the Trustees on behalf of the Trust) under the laws of
the State of Delaware or any political subdivision thereof in connection
with the execution, delivery and performance by the Property Trustee or
the Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release the Property
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful miscon-
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duct. To the extent that, at law or in equity, an Administrative Trustee has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to the Securityholders, such Administrative Trustee shall not be liable
to the Trust or to any Securityholder for such Trustee's good faith reliance on
the provisions of this Trust Agreement. The provisions of this Trust Agreement,
to the extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms thereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to an
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in Liquidation
Amount of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power con-
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ferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debt Securities and the
Payment Account shall be to deal with such Property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 3.1 and except to
the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor of their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
Section 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such Event of Default to the Securityholders, the Administrative Trustees and
the Depositor, unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Debt
Securities pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, notice of such
exercise to the Securityholders and the Property Trustee, unless such exercise
shall have been revoked.
Section 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
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(a) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution, opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (iii) the Property Trustee is unsure
of the application of any provision of this Trust Agreement, then, except
as to any matter as to which the Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken and the Property Trustee
shall take such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Depositor; provided, however, that if the Property
Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but shall
be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and in
the best interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith, negligence
or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee
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(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
re-recording, refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel (which counsel may
be counsel to the Depositor or any of its Affiliates, and may include any
of its employees) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon
and in accordance with such advice, such counsel may be counsel to the
Depositor or any of its Affiliates, and may include any of its employees;
the Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court of
competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Securityholders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, provided that the Property Trustee shall be
responsible
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for its own negligence or recklessness with respect to selection of any
agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be protected
in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debt Securities.
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Section 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or
agent of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates, (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to
be within the scope of authority conferred on such Indemnified Person by
this Trust Agreement, except that no Indemnified Person shall be entitled
to be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with
respect to such acts or omissions; and
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(d) to the fullest extent permitted by applicable law, to advance
expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time
to time, prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Depositor of (i) a written
affirmation by or on behalf of the Indemnified Person of its or his good
faith belief that it or he has met the standard of conduct set forth in
this Section 8.6 and (ii) an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in the
preceding subsection.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee may engage in or possess an interest
in other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depository for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Depositor or its Affiliates.
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property
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Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Property Trustee
with respect to the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or (ii)
a legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
Section 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
Section 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
anytime or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any Jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Adminis-
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trative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee jointly with the
Property Trustee, of al1 or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case an Indenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified
hereunder, shall be exercised, solely by such Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or
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separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case an Indenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Depositor. Upon the written request
of the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal.
A successor to any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any
other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of
a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee")
and no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the successor Trustee required by Section
8.11
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shall not have been delivered to the Relevant Trustee within 30 days after the
giving of such notice of resignation, the Relevant Trustee may petition, at the
expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If an Indenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Indenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees, and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when an Indenture Event of
Default shall have occurred and be continuing, the Preferred Securityholders, by
Act of the Securityholders of a majority in Liquidation Amount of the Preferred
Securities then outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and such successor
Trustee shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when an Indenture Event of Default shall have
occurred and be continuing, the Common Securityholder by Act of the Common
Securityholder delivered to the Administrative Trustee shall promptly appoint a
successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Securityholder or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any Securityholder who has
been a Securityholder of Trust Securities for at least six months may, on behalf
of himself and all
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others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or Delaware Trustee, as the case may be, set forth
in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without an further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Depositor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and if the Property Trustee is the
resigning Trustee shall duly assign, transfer and deliver to the successor
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or de-
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sirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Trust and (b) shall add to
or change any of the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the Trust by more than one
Relevant Trustee, it being understood that nothing herein or in such amendment
shall constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Trust or any successor Relevant Trustee
such retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee or the Delaware
Trustee maybe merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant Trustee, shall
be the successor of such Relevant Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
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Section 8.13. Preferential Collection of Claims Against Depositor or Trust.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities (or, if
the Trust Securities are Discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Trust
Securities) and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Property Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the
event the Property Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Property Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel, and any other amounts due
the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
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Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 8.14. Reports by Property Trustee.
(a) Not later than May 15 of each year commencing with May 15, ,
the Property Trustee shall transmit to all Securityholders in accordance with
Section 10.8, and to the Depositor, a brief report dated as of such December 31
with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section,
a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of
its obligations under this Trust Agreement during the twelve-month period
(or, in the case of the initial report, the period since the Closing Date)
ending with such December 31 or, if the Property Trustee has not complied
in any material respect with such obligations, a description of such
noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects
the Trust Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq National Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities are
listed or traded, with the Commission and with the Depositor.
Section 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such
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documents, reports and information as required by Section 314 of the Trust
Indenture Act (if any) and the compliance certificate required by Section 314(a)
of the Trust Indenture Act in the form, in the manner an at the times required
by Section 314 of the Trust Indenture Act.
Section 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314 (c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be five, provided that the Holder
of all of the Common Securities by written instrument may increase or decrease
the number of Administrative Trustees. The Property Trustee and the Delaware
Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
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Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement, as set
forth herein.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on
December 31, 2054 (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 9.4.
Section 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Termination Event" upon which the Trust shall be deemed dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor
at any time (which direction is optional and wholly within the discretion
of the Depositor) to dissolve the Trust and distribute Debt Securities to
Securityholders in exchange for the Preferred Securities;
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all the Debt Securities;
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(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction; and
(e) the occurrence and continuation of an Investment Company Event;
provided, however, that if there is an opportunity to eliminate the Investment
Company Event by taking some Ministerial Action within 90 days of the occurrence
of the Investment Company Event, the Administrative Trustees shall pursue such
Ministerial Action and such Investment Company Event shall not be deemed to be
an Early Termination Event hereunder.
Section 9.3. Termination.
The respective obligations and responsibilities of the Trustees and
the Trust created and continued hereby shall terminate upon the latest to occur
of the following: (a) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to Section 4.2, of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b), (d)
or (e) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Debt Securities with an interest rate equal to % if on or prior to , and
the Reset Rate thereafter and bearing accrued and unpaid interest in an amount
equal to the accrued and unpaid Distributions on such Trust Securities, subject
to Section 9.4(d). Notice of liquidation shall be given by the Property Trustee
by first-class mail, postage prepaid mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
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(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debt Securities; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Debt
Securities, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee shall
deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debt Securities to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debt Securities in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
outstanding, (ii) certificates representing a Like Amount of Debt Securities
will be issued to holders of Trust Securities Certificates, upon surrender of
such certificates to the Administrative Trustees or their agent for exchange,
(iii) the Depositor shall use its reasonable efforts to have the Debt Securities
listed on the New York Stock Exchange or on such other exchange, interdealer
quotation system or self-regulatory organization as the Preferred Securities are
then listed, (iv) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debt Securities, accruing
interest at the rate provided for in the Debt Securities from the last
Distribution Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no patents of interest or principal will be
made to Holders of Trust Securities Certificates with respect to such Debt
Securities) and (v) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Debt Securities upon
surrender of Trust Securities Certificates.
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(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debt Securities in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated by the Property Trustee in
such manner as the Property Trustee determines. In such event Securityholders
will be entitled to receive out of the assets of the Trust available for
distribution to Securityholders, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"). If the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if an Indenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Trust.
The Trust may not merge with or into, consolidate, amalgamate,
convert into or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any person, except pursuant to this
Section 9.5 or Section 9.4. At the request of the Depositor, with the consent of
the Administrative Trustees and without the consent of the Holders of the
Preferred Securities, the Property Trustee or the Delaware Trustee, the Trust
may merge with or into, consolidate, amalgamate, convert into or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred
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Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Debt
Securities, (iii) the Successor Securities are listed or traded, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation, conversion, replacement, conveyance,
transfer or lease does not adversely affect the rights preferences and
privileges of the holders of the Preferred Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, conversion, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor Securities) in any
material respect, (b) following such merger, consolidation, amalgamation,
conversion, replacement, conveyance, transfer or lease, neither the Trust nor
such successor entity will be required to register as an investment company
under the 1940 Act and (c) following such merger, consolidation, amalgamation,
conversion, replacement, conveyance, transfer or lease, the Trust or the
successor entity will continue to be treated as a grantor trust for U.S. federal
income tax purposes, and (viii) the Depositor owns all of the common securities
of such successor entity and guarantees the obligations of such successor entity
under the Successor Securities, at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, the Trust shall not, except with the
consent of holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, convert into, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, conversion,
merger, replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other
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than a grantor trust for United States Federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS; REMARKETING
Section 10.1. Limitation of Rights of Securityholders.
The death or incapacity of any person having an interest, beneficial
or otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Administrative Trustees and the Depositor, without the
consent of any Securityholders, (i) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with the other
provisions of this Trust Agreement, or (ii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will be classified for United States Federal income tax
purposes as a grantor trust at all times that any Trust Securities are
outstanding or to ensure that the Trust will not be required to register as an
investment company under the 1940 Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect the
interests of any Securityholder, and any amendments of this Trust Agreement
pursuant to Section 10.2 shall become effective when notice thereof is given to
the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of
this Trust Agreement may be amended by the Trustees and the Depositor with (i)
the consent of Trust Securityholders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then Outstanding
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and (ii) receipt by the Trustees of an Opinion of Counsel to the effect that
such amendment or the exercise of any power granted to the Trustees in
accordance with such amendment will not affect the Trust's status as a grantor
trust for United States Federal income tax purposes or the Trust's exemption
from status of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers,
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
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Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.4. Governing Law.
This Trust Agreement and the rights and obligations of each of the
Securityholders, the Trust and the Trustees with respect to this Trust Agreement
and the Trust Securities shall be construed in accordance with and governed by
the laws of the State of Delaware.
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a
day that is not a Business Day, then such payment need not be made on such date
but may be made on the next succeeding day is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article ________ of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall
not affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or
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permitted to be given or served to or upon an Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (a) in the case of a Preferred Securityholder, to such
Preferred Securityholder as such Securityholder's name and address may appear on
the Securities Register; and (b) in the case of the Common Securityholder or the
Depositor, to Atlas Air, Inc., 538 Commons Drive, Golden, Colorado 80401,
Attention: Chief Financial Officer, facsimile no. (303) 526-5051. Any notice to
Preferred Securityholders shall also be given to such owners as have, within two
years preceding the giving of such notice, filed their names and addresses with
the Property Trustee for that purpose. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to The First
National Bank of Chicago, One First National Plaza, Suite 0126,Chicago, Illinois
60670-0126 Attention: Corporate Trust Services Division; (b) with respect to the
Delaware Trustee, to First Chicago Delaware Inc., c/o FCC National Bank, 300
King Street, Wilmington, Delaware 19801; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of Atlas Air Capital I."
Such notice, demand or other communication to or upon the Trust or e Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust or the Property Trustee.
Section 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the
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event the Depositor takes action in violation of this Section 10.9, the Property
Trustee agrees, for the benefit of Securityholders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control . If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Agreement
as so modified or excluded , the latter provision shall be deemed to apply to
this Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
Section 10.11. Remarketing.
(a) The Debt Securities Issuer will request, not later than 7 nor
more than 15 calendar days prior to the Remarketing Date that the Clearing
Agency notify the Holders of Preferred Securities of the Remarketing and of the
procedures that must be followed if a Holder of Preferred Securities wishes to
exercise such Holder's rights with respect to the Put Option if there is a
Failed Remarketing.
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(b) later than 5:00 P.M., New York City time, on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, each Holder of
the Preferred Securities may elect to have Preferred Securities held by such
Holder remarketed. Holders of Preferred Securities shall give notice of their
election to have such Preferred Securities remarketed to the Custodial Agent
pursuant to the Pledge Agreement. Any such notice shall be irrevocable after
5:00 P.M., New York City time on the fifth Business Day immediately preceding
the Purchase Contract Settlement Date and may not be conditioned upon the level
at which the Reset Rate is established. Promptly after 5:30 P.M., New York City
time, on such fifth Business Day, the Property Trustee, based on the notices
received by it prior to such time, shall notify the Trust, the Depositor and the
Remarketing Agent of the number of Preferred Securities to be tendered for
remarketing.
(c) The right of each Holder to have Preferred Securities tendered
for purchase shall be limited to the extent that (i) the Remarketing Agent
conducts a remarketing pursuant to the terms of the Remarketing Agreement, (ii)
Preferred Securities tendered have not been called for redemption, (iii) the
Remarketing Agent is able to find a purchaser or purchasers for tendered
Preferred Securities, at a price of not less than 100% of the stated liquidation
amount thereof plus accrued and unpaid distributions thereon, and (iv) such
purchaser or purchasers deliver the purchase price therefor to the Remarketing
Agent as and when required.
(d) On the Remarketing Date, the Remarketing Agent shall use
reasonable efforts to remarket at a price equal to approximately __% of the
aggregate liquidation amount thereof, Preferred Securities tendered or deemed
tendered for purchase.
(e) If none of the Holders elect to have Preferred Securities held
by them remarketed, the Reset Rate shall be the rate determined by the
Remarketing Agent, subject to the terms of the Remarketing Agreement, as the
rate that would have been established had a remarketing been held on the
Remarketing Date.
(f) If the Remarketing Agent has determined that it will be able to
remarket all Preferred Securities tendered or deemed tendered prior to 4:00
P.M., New York City time, on the Remarketing Date, the Remarketing Agent shall
determine the Reset Rate, which shall be the rate per annum (rounded to the
nearest one-thousandth (0.001) of one percent per annum) which
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the Remarketing Agent determines, subject to the terms of the Remarketing
Agreement, to be the lowest rate per annum that will enable it to remarket all
Preferred Securities tendered or deemed tendered for remarketing.
(g) If, by 4:00 P.M., New York City time, on the Remarketing Date,
the Remarketing Agent is unable to remarket all Preferred Securities tendered or
deemed tendered for purchase or if the remarketing shall not have occurred
because a condition precedent to the remarketing shall not have been fulfilled,
a Failed Remarketing shall be deemed to have occurred and the Remarketing Agent
shall so advise by telephone the Collateral Agent, Debt Securities Issuer,
Property Trustee, Delaware Trustee and Clearing Agency.
(h) By approximately 4:30 P.M., New York City time, on the
Remarketing Date, provided that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (i) the Collateral Agent, Debt
Securities Issuer, Property Trustee, Delaware Trustee and Clearing Agency of the
Reset Rate determined in the Remarketing and the number of Preferred Securities
sold in the remarketing, (ii) each purchaser (or the Clearing Agency Participant
thereof) of the Reset Rate and the number of Preferred Securities such purchaser
is to purchase and (iii) each purchaser to give instructions to its Clearing
Agency Participant to pay the purchase price on the Purchase Contract Settlement
Date in same day funds against delivery of the Preferred Securities purchased
through the facilities of the Clearing Agency.
(i) In accordance with the Clearing Agency's normal procedures, on
the Purchase Contract Settlement Date, the transactions described above with
respect to each Preferred Security tendered for purchase and sold in the
remarketing shall be executed through the Clearing Agency, and the accounts of
the respective Clearing Agency Participants shall be debited and credited and
such Preferred Securities delivered by book entry as necessary to effect
purchases and sales of such Preferred Securities. The Clearing Agency shall make
payment in accordance with its normal procedures.
(j) If any Holder selling Preferred Securities in the remarketing
fails to deliver such Preferred Securities, the Clearing Agency Participant of
such selling Holder and of any other Person that was to have purchased Preferred
Securities in the remarketing may deliver to any such other Person a number of
Preferred Securities that is less than the number of Preferred Securities that
otherwise was to be purchased by such
<PAGE> 85
-79-
person. In such event, the number of Preferred Securities to be so delivered
shall be determined by such Clearing Agency Participant, and delivery of such
lesser number of Preferred Securities shall constitute good delivery.
(k) The Remarketing Agent is not obligated to purchase any Preferred
Securities in a remarketing or otherwise. Neither the Trust, any Trustee, the
Depositor nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of Preferred Securities for remarketing.
(l) The tender and settlement procedures set forth in this Section
10.11, including provisions for payment by purchasers of Preferred Securities in
the remarketing, shall be subject to modification, notwithstanding any provision
to the contrary set forth herein to the extent required by the Clearing Agency
or if the book-entry system is no longer available for the Preferred Securities
at the time of the remarketing, to facilitate the tendering and remarketing of
Preferred Securities in certificated form. In addition, the Remarketing Agent
may, notwithstanding any provision to the contrary set forth in Article 6 or
Section 10.2, modify the settlement procedures set forth herein in order to
facilitate the settlement process.
(m) Anything herein to the contrary notwithstanding, the Reset Rate
shall in no event exceed the maximum rate permitted by applicable law and, as
provided in the Remarketing Agreement, neither the Remarketing Agent nor the
Reset Agent (as defined in the Remarketing Agreement) shall have any obligation
to determine whether there is any limitation under applicable law on the Reset
Rate or, if there is any such limitation, the maximum permissible Reset Rate on
the Preferred Securities and they shall rely solely upon written notice from the
Depositor and the Trust (which the Depositor and the Trust agree to provide
prior to the tenth Business Day before the Purchase Contract Settlement Date) as
to whether or not there is any such limitation and, if so, the maximum
permissible Reset Rate.
Section 10.12. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
<PAGE> 86
-80-
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT AND AGREEMENT TO THE OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
ATLAS AIR, INC., as Depositor
By:
-------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:
-------------------------------
Name:
Title:
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:
-------------------------------
Name:
Title:
-----------------------------------
[_______________],
as Administrative Trustee
-----------------------------------
[_______________],
as Administrative Trustee
-----------------------------------
[_______________],
as Administrative Trustee
<PAGE> 87
EXHIBIT A
CERTIFICATE OF TRUST
OF
ATLAS AIR CAPITAL I
THIS Certificate of Trust of Atlas Air Capital I (the "Trust"),
dated April 23, 1999, is being duly executed and filed by The First
National Bank of Chicago, a national banking association, First Chicago Delaware
Inc., a Delaware corporation, and Stephen Nevin, as trustees, to form a business
trust under the Delaware Business Trust Act (12 Del. C. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is Atlas
Air Capital I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is First
Chicago Delaware, Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By: /s/ Sandra L. Caruba
-----------------------
Name: Sandra L. Caruba
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Sandra L. Caruba
-----------------------
Name: Sandra L. Caruba
Title: Vice President
/s/ Stephen Nevin
-----------------------------
Stephen Nevin, as trustee
A-1
<PAGE> 88
EXHIBIT B
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: General Counsel's Office
Re: Atlas Air Capital I ___% [Cumulative Quarterly
Income] Preferred Securities, [Series A]
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating
to the issuance and deposit with The Depository Trust Company ("DTC") of the
Atlas Air Capital I % [Cumulative Quarterly Income] Preferred Securities,
[Series A] (the "Preferred Securities"), of Atlas Air Capital I, a Delaware
business trust (the "Issuer"), formed pursuant to a Trust Agreement between
Atlas Air, Inc. ("Atlas"), The First National Bank of Chicago, as Property
Trustee, First Chicago Delaware, Inc., as Delaware Trustee, and the
Administrative Trustees named therein. The payment of distributions on the
Preferred Securities, and payments due upon liquidation of Issuer or redemption
of the Preferred Securities, to the extent the Issuer has funds available for
the payment thereof are guaranteed by Atlas to the extent set forth in a
Guarantee Agreement dated ______, 1999 by Atlas with respect to the Preferred
Securities. Atlas and the Issuer propose to sell the Preferred Securities to
certain Underwriters (the "Underwriters") pursuant to an Underwriting Agreement
dated __________, 1999 by and among the Underwriters, the Issuer and Atlas and
the Underwriters wish to take delivery of the Preferred Securities through DTC.
The First National Bank of Chicago is acting as transfer agent and registrar
with respect to the Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC agree
among each other as follows:
1. Prior to the closing of the sale of the Preferred Securities to
the Underwriters, which is expected to occur on or about _________, 1999, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an
B-1
<PAGE> 89
aggregate of Preferred Securities and bearing the following legend:
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.
2. The Amended and Restated Trust Agreement of the Issuer provides
for the voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
a 11 or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable such expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a
B-2
<PAGE> 90
method to verify subsequently the use of such means and the timeliness of such
notice.) The Publication Date shall be not less than 30 calendar days nor more
than 60 calendar days prior to the payment of any such distribution or any such
offering or issuance of rights with respect to the Preferred Securities. After
establishing the amount of payment to be made on the Preferred Securities, the
Issuer or the Transfer Agent and Registrar will notify DTC's Dividend Department
of such payment 5 business days prior to payment date. Notices to DTC's Dividend
Department by telecopy shall be sent to (212) 709-1723. Such notices by mail or
by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes) shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or
by mail or any other means to:
B-3
<PAGE> 91
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the
CUSIP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "Atlas Air Capital I ___% [Cumulative Quarterly Income] Preferred Securities,
[Series A]."
8. Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in next day funds on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be made
payable to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DTC may by prior written notice direct the Issuer and the
Transfer Agent and Registrar to use any other telecopy number or address of DTC
as the number or address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depositary with
respect to the Preferred Securities at any time by giving at least 90 days'
prior written notice to the Issuer and the Transfer Agent and Registrar (at
which time DTC will confirm with the Issuer or the Transfer Agent and Registrar
the aggregate number of Preferred Securities deposited with it) and discharging
its responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may deter-
B-4
<PAGE> 92
mine to make alternative arrangements for book-entry settlement for the
Preferred Securities, make available one or more separate global certificates
evidencing Preferred Securities to any Participant having Preferred Securities
credited to its DTC account, or issue definitive Preferred Securities to the
beneficial holders thereof, and in any such case, DTC agrees to cooperate fully
with the Issuer and the Transfer Agent and Registrar, and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
12. In the event that the Issuer determines that beneficial owners
of Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Issuer or the Transfer Agent
and Registrar shall issue, transfer and exchange certificates in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Issuer and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of Atlas Air Capital I.
Very truly yours,
ATLAS AIR CAPITAL I
(As Issuer)
(Name of Trustee)
By:
----------------------
Administrative Trustee
By:
----------------------
Name:
Title:
B-5
<PAGE> 93
_________________________________
(As Transfer Agent and Registrar)
By:
-----------------------------
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
------------------------
Authorized Officer
B-6
<PAGE> 94
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN AS SET
FORTH IN THE TRUST AGREEMENT (AS DEFINED BELOW)
Certificate Number Number Of Common Securities
C-1
Certificate Evidencing Common Securities
of
ATLAS AIR CAPITAL I
___% Common Securities
(Liquidation Amount $ Per Common Security)
Atlas Air Capital I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Atlas Air,
Inc. (the "Holder") is the registered owner of (___) common securities of the
Trust representing beneficial interests of the Trust and designated the___ %
Common Securities (liquidation amount $ per Common Security) (the "Common
Securities"). To the extent set forth in Section 5.10 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of _______, 1999, as the same may be amended from time to time (the "Trust
Agreement") including the designation of the terms of the Common Securities as
set forth therein. The Trust will furnish a copy of the Trust Agreement to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
C-1
<PAGE> 95
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _____ day of _______, _____.
ATLAS AIR CAPITAL I
By:
-----------------------------
Name:
Administrative Trustee
FORM OF REVERSE OF SECURITY
Distributions payable on each Common Security will be fixed at a
rate per annum of __% through and including , and at the Reset Rate thereafter
(the "Coupon Rate") of the stated liquidation amount of $ per Common Security,
such rate being the rate of interest payable on the Debt Securities to be held
by the Property Trustee. Distributions in arrears for more than one quarter will
bear interest thereon compounded quarterly at the rate of __% through and
including , and at the Reset Rate thereafter (to the extent permitted by
applicable law). The term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debt Securities held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and for any period shorter than
a full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
in such 90-day period.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on _____________, _____________ and
______________ of each year, commencing on , , to Holders of record
one Business Day prior to such payment date, which payment dates shall
correspond to the interest payment dates on the Debt Securities. The Debt
Securities Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the Debt
Securities for a period not extending beyond the date of maturity of the Debt
Securities (each an "Extension Period") and, as a consequence of such deferral,
Distributions will also be deferred. Despite
C-2
<PAGE> 96
such deferral, quarterly Distributions will continue to accrue with interest
thereon at the rate of __% through and including , and at the Reset
Rate thereafter, compounded quarterly during any such Extension Period (to the
extent permitted by applicable law). Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
record date next preceding the quarterly Distribution payment date on which the
relevant Extension Period ends. Upon the termination of any Extension Period and
the payment of all amounts then due, the Debt Securities Issuer may commence a
new Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed beyond the maturity date
of the Debt Securities, and no Extension Period may end other than on a
quarterly Distribution payment date.
The Common Securities shall be redeemable as provided in the
Declaration.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Trust
to repay $_____ stated liquidation amount of the within Common Security,
pursuant to its terms, on the "Put Option Exercise Date," together with
Distributions thereon accrued but unpaid to the date of repayment, to the
undersigned at:
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Declaration, a new
Common Security or Common Securities representing the remaining stated
liquidation amount, if any, of this Common Security.
For this Option to Elect Repayment to be effective, the within Common Security
with this Option to Elect Repayment duly completed must be received by the Trust
at the Corporate Trust Office of the Property Trustee at The First National Bank
of Chicago, One First National Plaza, Suite 0126, Chicago IL 60670-0126,
Attention: Corporate Trust Administration, no later than 5:00 p.m. on the third
Business Day immediately preceding , .
Date: Signature:
------------------------------
Signature Guarantee:
-------------------------
C-3
<PAGE> 97
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Common Security in every particular
without alternation or enlargement or any change whatsoever.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: Signature:
---------------------------
Signature Guarantee:
-------------------------
(Sign exactly as your name appears on the other side
of this Common Certificate)
C-4
<PAGE> 98
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement dated as of ______________, 1999, between Atlas Air, Inc.,
a Colorado corporation ("Atlas"), and Atlas Air Capital I, a Delaware business
trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debt Securities from Atlas and to issue and
sell ___% [Cumulative Quarterly Income] Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of _________, 1999 as the same may be amended from time to time (the "Trust
Agreement");
WHEREAS, Atlas will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debt Securities;
NOW, THEREFORE, in consideration of the purchase by each holder of
the Preferred Securities, which purchase Atlas hereby agrees shall benefit Atlas
and which purchase Atlas acknowledges will be made in reliance upon the
execution and delivery of this Agreement, Atlas and Trust hereby agree as
follows:
ARTICLE I
Section 1.1. Guarantee by Atlas.
Subject to the terms and conditions hereof, Atlas hereby irrevocably
and unconditionally guarantees to each person or entity to whom the Trust is now
or hereafter becomes indebted or liable (the "Beneficiaries") the full payment,
when and as due, of any and all obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust, other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
D-1
<PAGE> 99
Section 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
anytime any holder of Preferred Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Securities, under any Obligation,
under the Guarantee Agreement dated the date hereof by Atlas and The First
National Bank of Chicago as guarantee trustee or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.3. Waiver of Notice.
Atlas hereby waives notice of acceptance of this Agreement and of
any Obligation to which it applies or may apply, and Atlas hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.4. No Impairment.
The obligations, covenants, agreements and duties of Atlas under
this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the obligations or for the performance o any other Obligation
under, arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement composition or
readjustment of debt of, or other similar proceedings affecting the Trust
or any of the assets of the Trust.
D-2
<PAGE> 100
There shall be no obligation of the Beneficiaries to give notice to,
or obtain the consent of, Atlas with respect to the happening of any of the
foregoing.
Section 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Atlas and
Atlas waives any right or remedy to require that any action be brought against
the Trust or any other person or entity before proceeding against Atlas.
Section 1.6. Subrogation.
Atlas shall be subrogated to all (if any) rights of the Trust in
respect of any amounts paid to the Beneficiaries by Atlas under this Agreement;
provided, however, that Atlas shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Agreement, if, at the
time of any such payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
Section 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of Atlas and
shall inure to the benefit of the Beneficiaries.
Section 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred Securities
of any series are outstanding, this Agreement sha11 not be modified or amended
in any manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
Section 2.3. Notices.
Any notice, request or other communication required or permitted to
be given hereunder shall be given in writing by delivering the same against
receipt therefor by facsimile transmission (confirmed by mail), telex or by
registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answer-back, if sent by telex):
D-3
<PAGE> 101
Atlas Air Capital I
c/o FCC National Bank
300 King Street
Wilmington, Delaware 19801
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Department
Atlas Air, Inc.
530 Commons Drive
Golden, Colorado 80401
Facsimile No.: (303) 526-5051
Attention: Chief Financial Officer
Section 2.4.
This agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York.
This Agreement is executed as of the day and year first above
written.
ATLAS AIR, INC.
By:
---------------
Name:
Title:
ATLAS AIR CAPITAL I
By:
---------------
Name:
Title:
D-4
<PAGE> 102
EXHIBIT E
If the Preferred Security is to be a Global Certificate Insert--This
Preferred Security is a Global Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
Atlas Air Capital I or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Certificate Number Number Of Preferred Securities
P-__________ Cusip No. ____________
Certificate Evidencing Preferred Securities
of
ATLAS AIR CAPITAL I
____% [Cumulative Quarterly Income] Preferred Securities,
Series
(Liquidation Amount $ Per Preferred Security)
Atlas Air Capital I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that (the
"Holder") is the registered owner of (____) preferred securities of the Trust
representing an undivided beneficial interest in the assets of the Trust and
designated the Atlas Air Capital I _____% [Cumulative Quarterly Income]
Preferred Securities, Series (liquidation amount $ per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of
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<PAGE> 103
the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.4 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _______, 1999, as the same may be amended from time to time
(the "Trust Agreement"). The Holder is entitled to the benefits of the Guarantee
Agreement entered into by Atlas Air, Inc., a Delaware corporation, and The First
National Bank of Chicago, as guarantee trustee, dated as of ________, 1999, as
the same may be amended from time to time (the "Guarantee"), to the extent
provided therein. The Trust will furnish a copy of the Trust Agreement and the
Guarantee to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this _____ day of ______________, ____.
ATLAS AIR CAPITAL I
By:
----------------------
Name:
Administrative Trustee
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<PAGE> 104
FORM OF REVERSE OF SECURITY
Distributions payable on each Preferred Security will be fixed at a
rate per annum of __% through and including , and at the Reset Rate
thereafter (the "Coupon Rate") of the stated liquidation amount of $ per
Preferred Security, such rate being the rate of interest payable on the Debt
Securities to be held by the Property Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly at the rate of
__% through and including , and at the Reset Rate thereafter (to the
extent permitted by applicable law). The term "Distributions" as used herein
includes such cash distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that payments are made in
respect of the Debt Securities held by the Property Trustee and to the extent
the Property Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed for any full quarterly Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full quarterly Distribution period for which Distributions
are computed, Distributions will be computed on the basis of the actual number
of days elapsed in such 90-day period.
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on _____________, _____________ and
______________ of each year, commencing on , , to Holders of record
one Business Day prior to such payment date, which payment dates shall
correspond to the interest payment dates on the Debt Securities. If the
Preferred Securities shall not continue to remain in book-entry form or are not
in book-entry form at issuance, the relevant record dates for the Preferred
Securities shall conform to the rules of any securities exchange on which the
Preferred Securities are listed and, if none, shall be one Business Day before
the relevant payment dates, which payment dates shall correspond to the interest
payment dates on the Debt Securities. The Debt Securities Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debt Securities for a period not
extending beyond the date of maturity of the Debt Securities (each an "Extension
Period") and, as a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon at the rate of __% through and including ,
and at the Reset Rate thereafter, compounded quarterly during any such Extension
Period (to the extent permitted by applicable law). Payments
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<PAGE> 105
of accrued Distributions will be payable to Holders as they appear on the books
and records of the Trust on the record date next preceding the quarterly
Distribution payment date on which the relevant Extension Period ends. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Debt Securities Issuer may commence a new Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed beyond the maturity date of the Debt Securities, and no Extension
Period may end other than on a quarterly Distribution payment date.
The Preferred Securities shall be redeemable as provided in the
Declaration.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Trust
to repay $_____ stated liquidation amount of the within Preferred Security,
pursuant to its terms, on the "Put Option Exercise Date," together with
Distributions thereon accrued but unpaid to the date of repayment, to the
undersigned at:
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Declaration, a new
Preferred Security or Preferred Securities representing the remaining stated
liquidation amount, if any, of this Preferred Security.
For this Option to Elect Repayment to be effective, the within Preferred
Security with this Option to Elect Repayment duly completed must be received by
the Trust at the Corporate Trust Office of the Property Trustee at The First
National Bank of Chicago, One First National Plaza, Suite 0126, Chicago IL
60670-0126, Attention: Corporate Trust Administration, no later than 5:00 p.m.
on the third Business Day immediately preceding , .
Date: Signature:
------------------------------
Signature Guarantee:
-------------------------
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Preferred Security in every
particular without alternation or enlargement or any change whatsoever.
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<PAGE> 1
EXHIBIT 4.10
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
ATLAS AIR, INC., AS DEPOSITOR,
THE FIRST NATIONAL BANK OF CHICAGO,
AS PROPERTY TRUSTEE,
FIRST CHICAGO DELAWARE INC.,
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF _______________, 1999
ATLAS AIR CAPITAL II
============================================================================
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINED TERMS
Section 1.1. Definitions.............................................2
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1. Name...................................................16
Section 2.2. Office of the Delaware Trustee; Principal Place
of Business.........................................16
Section 2.3. Initial Contribution of Trust Property;
Organizational Expenses.............................16
Section 2.4. Issuance of the Preferred Securities...................16
Section 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debt Securities.....................17
Section 2.6. Declaration of Trust...................................18
Section 2.7. Authorization to Enter into Certain
Transactions........................................18
Section 2.8. Assets of Trust........................................23
Section 2.9. Title to Trust Property................................23
ARTICLE III
PAYMENT ACCOUNT
Section 3.1. Payment Account........................................23
ARTICLE IV
DISTRIBUTIONS; REDEMPTION; REPAYMENT
Section 4.1. Distributions..........................................24
Section 4.2. Redemption.............................................26
Section 4.3. Subordination of Common Securities.....................28
Section 4.4. Payment Procedures.....................................29
Section 4.5. Tax Returns and Reports................................29
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust............30
Section 4.7. Payments under Indenture...............................30
Section 4.8. Repayment at Option of Holders.........................30
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<PAGE> 3
Page
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ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership......................................32
Section 5.2. The Trust Securities Certificates......................32
Section 5.3. Execution and Delivery of Trust Securities
Certificates........................................33
Section 5.4. Registration of Transfer and Exchange of
Preferred Securities Certificates...................33
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.............................34
Section 5.6. Persons Deemed Securityholders.........................35
Section 5.7. Access to List of Securityholders, Names and
Addresses...........................................35
Section 5.8. Maintenance of Office or Agency........................35
Section 5.9. Appointment of Paying Agent............................35
Section 5.10. Ownership of Common Securities by Depositor............36
Section 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate.......................37
Section 5.12. Notices to Clearing Agency.............................38
Section 5.13. Definitive Preferred Securities Certificates...........38
Section 5.14. Rights of Securityholders..............................39
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights...........................42
Section 6.2. Notice of Meetings.....................................44
Section 6.3. Meetings of Preferred Securityholders..................44
Section 6.4. Voting Rights..........................................44
Section 6.5. Proxies, etc...........................................45
Section 6.6. Securityholder Action by Written Consent...............45
Section 6.7. Record Date for Voting and Other Purposes..............45
Section 6.8. Acts of Securityholders................................46
Section 6.9. Inspection of Records..................................47
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Bank, the
Property Trustee and the Delaware Trustee...........48
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<PAGE> 4
Page
----
Section 7.2. Representations and Warranties of Depositor............50
ARTICLE VIII
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities....................50
Section 8.2. Certain Notices........................................52
Section 8.3. Certain Rights of Property Trustee.....................52
Section 8.4. Not Responsible for Recitals or Issuance of
Securities..........................................55
Section 8.5. May Hold Securities....................................56
Section 8.6. Compensation; Indemnity; Fees..........................56
Section 8.7. Corporate Property Trustee Required;
Eligibility of Trustees.............................57
Section 8.8. Conflicting Interests..................................58
Section 8.9. Co-Trustees and Separate Trustee.......................58
Section 8.10. Resignation and Removal; Appointment of
Successor...........................................60
Section 8.11. Acceptance of Appointment by Successor.................62
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business.........................................63
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust..................................64
Section 8.14. Reports by Property Trustee............................65
Section 8.15. Reports to the Property Trustee........................65
Section 8.16. Evidence of Compliance with Conditions
Precedent...........................................66
Section 8.17. Number of Trustees.....................................66
Section 8.18. Delegation of Power....................................67
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Termination Upon Expiration Date.......................67
Section 9.2. Early Termination......................................67
Section 9.3. Termination............................................68
Section 9.4. Liquidation............................................68
Section 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust...........................70
ARTICLE X
MISCELLANEOUS PROVISIONS; REMARKETING
Section 10.1. Limitation of Rights of Securityholders................72
Section 10.2. Amendment..............................................72
Section 10.3. Separability...........................................74
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<PAGE> 5
Page
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Section 10.4. Governing Law..........................................74
Section 10.5. Payments Due on Non-Business Day.......................74
Section 10.6. Successors.............................................74
Section 10.7. Headings...............................................74
Section 10.8. Reports, Notices and Demands...........................74
Section 10.9. Agreement Not to Petition..............................75
Section 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act.......................................76
Section 10.11. Remarketing............................................76
Section 10.12. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.............................79
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<PAGE> 6
ATLAS AIR CAPITAL II
Certain Sections of this Trust Agreement Relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust
Trust Indenture Agreement
Act Section Section
----------- -------
310 (a)(1)......................................... 8.7
(a)(2)......................................... 8.7
(a)(3)......................................... 8.9
(a)(4)......................................... 2.7(a)(ii)
(b)............................................ 8.8
311 (a)............................................ 8.13
(b)............................................ 8.13
312 (a)............................................ 5.7
(b)............................................ 5.7
(c)............................................ 5.7
313 (a)............................................ 8.14(a)
(a)(4)......................................... 8.14(b)
(b)............................................ 8.14(b)
(c)............................................ 10.8
(d)............................................ 8.14(c)
314 (a) . ......................................... 8.15
(b)............................................ Not Applicable
(c)(1)......................................... 8.16
(c)(2)......................................... 8.16
(c)(3)......................................... Not Applicable
(d)............................................ Not Applicable
(e)............................................ 1.1, 8.16
315 (a)............................................ 8.1(a), 8.3(a)
(b)............................................ 8.2, 10.8
(c)............................................ 8.1(a)
(d)............................................ 8.1, 8.3
(e)............................................ Not Applicable
316 (a)............................................ Not Applicable
(a)(1)(A)...................................... Not Applicable
(a)(1)(B)...................................... Not Applicable
(a)(2)......................................... Not Applicable
(b)............................................ 5.14
(c)............................................ 6.7
317 (a)(1)......................................... Not Applicable
(a)(2)......................................... Not Applicable
(b)............................................ 5.9
318 (a)............................................ 10.10
- -----------------
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
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<PAGE> 7
Amended and Restated Trust Agreement, dated as of __________, 1999,
among (i) Atlas Air, Inc., a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) The First National Bank of Chicago, a national
banking association duly organized and existing under the laws of the United
States, as property trustee (in such capacity, the "Property Trustee" and,
in its separate corporate capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) First Chicago Delaware Inc., a Delaware corporation, as
Delaware trustee (the "Delaware Trustee"), (iv) , an individual, , an
individual and ______________, an individual, each of whose address is c/o
Atlas Air, Inc., 538 Commons Drive, Golden, Colorado 80401 (each an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
W I T N E S S E T H :
WHEREAS, the Depositor and the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into that certain Trust Agreement, dated as of April
22, 1999 (the "Original Trust Agreement"), and by the execution and filing by
the Trustees with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on April 23, 1999, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the Acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debt
Securities and (iv) the appointment of the Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, each party, for the benefit of the other
parties and for the benefit of the Securityholders, hereby amends and restates
the Original Trust Agreement in its entirety and agrees as follows:
<PAGE> 8
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ARTICLE I
DEFINED TERMS
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Debt Securities for such period.
"Additional Sums" has the meaning specified in Section ______
of the Indenture.
"Administrative Trustee" means each of , and , solely in
such Person's capacity as Administrative Trustee of the Trust formed and
continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
<PAGE> 9
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"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Atlas" means Atlas Air, Inc., a Delaware corporation.
"Authorized Newspaper" means a daily newspaper, in the English
language, customarily published on each day that is a Business Day in The City
of New York, whether or not published on days that are legal holidays, and of
general circulation in The City of New York. The Authorized Newspaper for the
purposes of the Reset Announcement Date is currently anticipated to be The Wall
Street Journal.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or the consent by it to the filing of any such petition
or to the appointment of a
<PAGE> 10
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receiver, liquidator, assignee, trustee, sequestrator (or similar
official) of such Person or of any substantial part of its property, or
the making by it of an Assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a bankrupt, or the
taking of corporate action by such Person in furtherance of any such
action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Company to which authority to act on behalf of the
Board of Directors has been delegated, and to be in full force and effect on the
date of such certification, and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b)
a day on which banking institutions in the cities of New York, Chicago and
Denver are authorized or required by law or executive order to remain closed, or
(c) a day on which the Property Trustee's Corporate Trust Office or the
Corporate Trust Office of the Indenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from
<PAGE> 11
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time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"Closing Date" means the First Time of Delivery, which date is also
the date of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the Property
Trustee located in Chicago, Illinois or principal office of any successor
Property Trustee.
"Coupon Rate" has the meaning specified in Section 4.1(b).
"Debt Securities" means the aggregate principal amount of the
Depositor's Debt Securities issued pursuant to the Indenture.
"Debt Securities Issuer" means Atlas Air, Inc., a Delaware
corporation.
"Debt Securities Repayment Price" means, with respect to any Debt
Securities put to the Depositor on ___, ___, an amount per Debt Security equal
to $ , plus accrued and unpaid interest (including deferred interest, if any).
"Definitive Preferred Securities Certificates" means either or both
(as the context requires) of (a) Preferred Secu-
<PAGE> 12
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rities Certificates issued as Book-Entry Preferred Securities Certificates as
provided in Section 5.11(a) and (b) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Direct Action" has the meaning specified in Section 5.14(c).
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Event of Default" means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of an Indenture Event of Default; or
(b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Trus-
<PAGE> 13
-7-
tees in this Trust Agreement (other than a covenant or warranty a default
in the performance or breach of which is dealt with in clause (b) or (c)
above and continuation of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the
defaulting Trustee or Trustees by the Holders of at least 25% in aggregate
liquidation preference of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 60 days thereof.
"Exchange Agent" means the Person acting as Property Trustee.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Failed Remarketing" has the meaning specified in Section
5.4(b) of the Purchase Contract Agreement.
"First Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and The First National Bank of Chicago, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Preferred Securities, as amended from time to
time.
"Indenture" means the Debt Securities Indenture, dated as of April
___, 1999, between the Depositor and the Indenture Trustee, as trustee, as
amended or supplemented from time to time.
"Indenture Event of Default" means an "Event of Default" as
defined in the Indenture.
<PAGE> 14
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"Indenture Redemption Date" means, with respect to any Debt
Securities to be redeemed under the Indenture, the date fixed for redemption
under the Indenture.
"Indenture Trustee" means The First National Bank of Chicago, a
national banking association and any successor thereto.
"Investment Company Event" means the receipt by the Trust of an
Opinion of Counsel, rendered by a law firm having a recognized national tax and
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), to the effect that the Trust is or will
be considered an "investment company" that is required to be registered under
the 1940 Act, which Change in 1940 Act Law becomes effective on or after the
date of original issuance of the Preferred Securities under this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed
of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debt Securities to be contemporaneously redeemed in accordance with
the Indenture, the proceeds of which will be used to pay the Redemption Price of
such Trust Securities, and (b) with respect to a distribution of Debt Securities
to Holders of Trust Securities in connection with a dissolution or liquidation
of the Trust, Debt Securities having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Debt Securities are
distributed.
"Liquidation Amount" means the stated amount of $ per
Trust Security.
"Liquidation Date" means the date on which Debt Securities are to be
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Trust pursuant to Section 9.4(a).
<PAGE> 15
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"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"Ministerial Action" means the taking of an action, such as filing a
form or making an election, or pursuing some other similar reasonable measure
that will have no adverse affect on the Trust, the Depositor, the Trustees or
the Holders of the Securities and will involve no material cost.
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Officers' Certificate" means a certificate signed by the Chairman
and Chief Executive officer, President or a Vice President, and by the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee.
<PAGE> 16
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"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
executed and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore cancelled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred Securities;
provided that, if such Preferred Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or
in lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Depositor, one or more of
the Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency
<PAGE> 17
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Participant is not the Owner, then as reflected in the records of a Person
maintaining an account with such Clearing Agency (directly or indirectly, in
accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debt Securities will be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Sections 4.1 and
4.2.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Pledge Agreement" means the Pledge Agreement dated as of , 1999
among the Depositor, , as collateral agent (the "Collateral Agent") and
custodial agent (the "Custodial Agent") and securities intermediary (the
"Securities Intermediary") and The First National Bank of Chicago as purchase
contract agent (the "Purchase Contract Agent").
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
E.
"Primary Treasury Dealer" means a primary U.S. government
securities dealer in The City of New York.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in
<PAGE> 18
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such capacity, or any successor property trustee appointed as herein provided.
"Purchase Contract Agreement" means the Purchase Contract Agreement
dated as of , 1999 between The First National Bank of Chicago, as Purchase
Contract Agent, and the Depositor.
"Purchase Contract Settlement Date" means , .
"Put Option" has the meaning specified in Section 4.8.
"Put Option Exercise Date" has the meaning in Section 4.8.
"Put Option Repayment Price" has the meaning in Section 4.8.
"Quotation Agent" means (i) and its respective
successors, provided, however, that if the foregoing shall cease to be a Primary
Treasury Dealer, the Depositor shall substitute therefor another Primary
Treasury Dealer or (ii) any other Primary Treasury Dealer selected by the
Depositor.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Indenture Redemption Date and the stated maturity
of the Debt Securities shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debt Securities, allocated on a pro rata basis (based on Liquidation Amounts)
among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Remarketing Agent" means , or such other
persons who shall be the remarketing agent under the Remarketing Agreement.
<PAGE> 19
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"Remarketing Agreement" means the Remarketing Agreement among the
Debt Securities Issuer, the Trust, The First National Bank of Chicago, as
Purchase Contract Agent, and the Remarketing Agent.
"Remarketing Date" shall mean the third Business Day
immediately preceding the Purchase Contract Settlement Date.
"Reset Agent" means , a nationally recognized investment
banking firm chosen by the Depositor to determine the Reset Rate.
"Reset Announcement Date" means the tenth Business Day
immediately preceding the Purchase Contract Settlement Date.
"Reset Rate" means the distribution rate per annum (to be determined
by the Reset Agent), equal to the sum of (X) the Reset Spread and (Y) the rate
of interest on the Two-Year Benchmark Treasury in effect on the third Business
Day immediately preceding the Purchase Contract Settlement Date that the
Preferred Securities should bear in order for the Preferred Securities to have
an approximate market value of ___% of their aggregate stated liquidation
amount on the third Business Day immediately preceding the Purchase Contract
Settlement Date; provided, that the Depositor may limit such Reset Spread to be
no higher than ___ basis points (___%) and the Depositor shall limit the
Reset Rate, if applicable, to the maximum rate permitted by applicable law.
"Reset Spread" means a spread amount to be determined by the Reset
Agent on the tenth Business Day immediately preceding the Purchase Contract
Settlement Date.
"Second Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be a beneficial owner within the meaning of the
Delaware Business Trust Act; provided, however, that in determining whether the
Holders of the requisite amount of Preferred Securities have voted on any matter
provided for in this Trust Agreement, then
<PAGE> 20
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for the purpose of any such determination, so long as Definitive Preferred
Securities Certificates have not been issued, the term Securityholders or
Holders as used herein shall refer to the Owners.
"Successor Securities" shall have the meaning specified in
Section 9.5.
"Supplemental Remarketing Agreement" means the agreement to be dated
as of the third Business Day immediately preceding the Purchase Contract
Settlement Date among Atlas, the Trust (if applicable), The First National Bank
of Chicago, and the Remarketing Agent.
"Termination Event" has the meaning set forth in Section 1.1
of the Purchase Contract Agreement.
"Time of Delivery" means, collectively, the First Time of Delivery
and the Second Time of Delivery.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Treasury Securities" has the meaning set forth in Section 1.1
of the Purchase Contract Agreement.
"Trust" means the Delaware business trust created and continued
hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement,
as the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
<PAGE> 21
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"Trust Property" means (a) the Debt Securities, (b) any cash on
deposit in, or owing to, the Payment Account and (c) all proceeds and rights in
respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to the trusts of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Two-Year Benchmark Treasury" means direct obligations of the United
States (which may be obligations traded on a when-issued basis only) having a
maturity comparable to the remaining term to maturity of the Trust Securities,
as agreed upon by the Depositor and the Reset Agent. The rate for the Two-Year
Benchmark Treasury will be the bid side rate displayed at 10:00 A.M., New York
City time, on the third Business Day immediately preceding the Purchase Contract
Settlement Date in the Telerate system (or if the Telerate system is (a) no
longer available on the third Business Day immediately preceding the Purchase
Contract Settlement Date or (b) in the opinion of the Reset Agent (after
consultation with the Depositor) no longer an appropriate system from which to
obtain such rate, such other nationally recognized quotation system as, in the
opinion of the Reset Agent (after consultation with the Depositor) is
appropriate). If such rate is not so displayed, the rate for the Two-Year
Benchmark Treasury shall be, as calculated by the Reset Agent, the yield to
maturity for the Two-Year Benchmark Treasury, expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis, and computed by taking the arithmetic mean of the secondary market bid
rates, as of 10:30 A.M., New York City time, on the third Business Day
immediately preceding the Purchase Contract Settlement Date of three leading
United States government securities dealers selected by the Reset Agent (after
consultation with the Depositor) which may include the Reset Agent or an
Affiliate thereof.
"Underwriting Agreement" means the Pricing Agreement, dated as of
________, 1999, among the Trust, the Depositor and
<PAGE> 22
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the underwriters named therein incorporating the Underwriting Agreement dated
__________, 1999.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1. Name.
The Trust continued hereby shall be known as "Atlas Air Capital II,"
as such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and sue and
be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is c/o
FCC National Bank, 300 King Street, Wilmington, Delaware 19801, Attention:
Corporate Trust Administration, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Securityholders
and the Depositor. The principal executive office of the Trust is c/o Atlas Air,
Inc., 538 Commons Drive, Golden, Colorado 80401.
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.4. Issuance of the Preferred Securities.
On _________, 1999 the Depositor, on behalf of the Trust and
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously
<PAGE> 23
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with the execution and delivery of this Trust Agreement, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Sections 5.2
and 5.3 and deliver to the Underwriters named in the Underwriting Agreement
Preferred Securities Certificates, registered in the name of the nominee of the
initial Clearing Agency, in an aggregate amount of Preferred Securities having
an aggregate Liquidation Amount of $__________, against receipt of such
aggregate purchase price of such Preferred Securities of $_________, which
amount the Administrative Trustee shall promptly deliver to the Property
Trustee. If there is a Second Time of Delivery, an Administrative Trustee, on
behalf of the Trust, shall execute in accordance with Sections 5.2 and 5.3 and
deliver to the Underwriters named in the Underwriting Agreement Preferred
Securities Certificates, registered in the name of the nominee of the initial
Clearing Agency, in an aggregate amount of up to Preferred Securities having an
aggregate Liquidation Amount of up to $________, against receipt of such
aggregate purchase price of such Preferred Securities of $__________, which
amount such Administrative Trustees shall promptly deliver to the Property
Trustee, on the date specified pursuant to the Underwriting Agreement.
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of
Debt Securities.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Sections 5.2 and 5.3 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of Common Securities having an aggregate Liquidation Amount of
$__________ against payment by the Depositor of such amount. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe to
and purchase from the Depositor Debt Securities, registered in the name of the
Trust and having an aggregate principal amount equal to $__________, and, in
satisfaction of the purchase price for such Debt Securities, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$____________. If there is a Second Time of Delivery, an Administrative Trustee,
on behalf of the Trust, shall execute in accordance with Sections 5.2 and 5.3
and deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of up to Common Securities having
an aggregate Liquidation Amount of up to $_________ against payment by the
Depositor of such amount. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Debt Securities, registered in the name of
<PAGE> 24
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the Trust and having an aggregate principal amount of up to $__________, and, in
satisfaction of the purchase price for such Debt Securities, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the amount
received from one of the Administrative Trustees pursuant to the last sentence
of Section 2.4.
Section 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Debt Securities, and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Trust with respect to the
following matters:
<PAGE> 25
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(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function
of the Trust;
(C) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents
pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debt
Securities to the Securityholders in accordance with this Trust
Agreement;
(F) the appointment of a Paying Agent, authenticating agent
and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance
with this Trust Agreement;
(H) to the extent provided in this Trust Agreement the winding
up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees, or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to
execute on behalf of the Trust (either acting alone or together with
any or all of the Administrative Trus-
<PAGE> 26
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tees) any documents that the Administrative Trustees have the power
to execute pursuant to this Trust Agreement;
(J) the entering into of a Debt Security purchase agreement
and Common Securities purchase agreement with the Depositor;
(K) the giving to the Depositor and the Property Trustee
prompt written notice of the occurrence of an Investment Company
Event; provided that the Administrative Trustees shall consult with
the Depositor before taking any Ministerial Action in relation to an
Investment Company Event; and
(L) the taking of any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement for
the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to
the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debt Securities;
(C) the collection of interest, principal and any other
payments made in respect of the Debt Securities in the Payment
Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Debt Securities;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debt Securities to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
<PAGE> 27
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(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Trust Agreement and protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder);
(J) the engagement in such Ministerial Action as shall be
necessary, appropriate, convenient or incidental to effect repayment
of the Preferred Securities and the Common Securities to the extent
the Debt Securities mature or are redeemed or the Put Option is
exercised; and
(K) except as otherwise provided in this Section 2.7(a)(ii),
the Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth in
Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interest therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for United States Federal
income tax purposes, (iv) incur any indebtedness for borrowed money or issue any
other debt or (v) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property. The Administrative Trustees
shall defend all claims and demands of all Persons at any time claiming any Lien
on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
<PAGE> 28
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(c) In connection with the issue and sale of the Preferred
Securities, and, if necessary, the remarketing of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Preferred Securities, including any
amendments thereto;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice
to the Trustees of actions they must take on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of any
such States;
(iii) the preparation for filing by the Trust and execution on behalf
of the Trust of an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form
8-A relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of the Remarketing Agreement, the
Supplemental Remarketing Agreement and theUnderwriting Agreement providing
for the sale of the Preferred
Securities;
(vi) the execution and entering into of the Underwriting Agreement,
the Remarketing Agreement, the Debt Securities purchase agreement and
Common Securities purchase
<PAGE> 29
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agreement and, if applicable, the Supplemental Remarketing
Agreement; and
(vii) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
of 1940, as amended, or taxed as a corporation for United States Federal income
tax purposes and so that the Debt Securities will be treated as indebtedness of
the Depositor for United States Federal income tax purposes. In this connection,
the Depositor and the Administrative Trustees are authorized to take any action,
not inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and the Administrative Trustees determines
in their discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the holders of the Preferred Securities.
Section 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in
the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust and the
Securityholders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclu-
<PAGE> 30
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sive control and sole right of withdrawal with respect to the Payment Account
for the purpose of making deposits in and withdrawals from the Payment Account
in accordance with this Trust Agreement. All monies and other property deposited
or held from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the Securityholders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debt Securities. Amounts held in
the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION; REPAYMENT
Section 4.1. Distributions.
(a) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for the
payment of Distributions. Distributions shall accrue from ____________,
_________, and, except in the event that the Depositor exercises its right to
defer the payment of interest on the Debt Securities pursuant to the Indenture,
shall be payable quarterly in arrears on __________, ______, _________ and
___________ of each year, commencing on ______________, 1999. If any date on
which a Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date (each date on which distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property, and, as a practical matter, the Distributions on the Trust
Securities shall be payable
<PAGE> 31
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at a rate of ___% per annum (the "Coupon Rate") of the Liquidation Amount of the
Trust Securities through and including , and at the Reset Rate thereafter, such
rates being the rates of interest payable on the Debt Securities to be held by
the property Trustee. Distributions in arrears for more than one quarter will
accumulate and compound quarterly at the rate per annum of % through and
including , and at the Reset Rate thereafter (to the extent permitted by
applicable law). Distributions that are deferred will continue to accumulate at
a rate per annum of % through and including , and at the Reset Rate thereafter,
compounded quarterly through the deferral period to the extent permitted by
applicable law. The amount of Distributions payable for any full period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months. The amount of
Distributions payable for any period shall include the Additional Amounts, if
any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to such Distribution Date; provided, however,
that in the event that the Preferred Securities do not remain in book-entry-only
form, the relevant record date shall be the date 15 days prior to the relevant
Distribution Date.
(e) The Coupon Rate on the Trust Securities (as well as the interest
rate on the Debt Securities) will be reset on the third Business Day immediately
preceding the Purchase Contract Settlement Date to the Reset Rate (which Reset
Rate will be in effect on and after the Purchase Contract Settlement Date). On
the Reset Announcement Date, the Reset Spread and the Two-Year Benchmark
Treasury to be used to determine the Reset Rate will be announced by the
Depositor. On the Business Day immediately following the Reset Announcement
Date, the Holders of Trust Securities will be notified of such Reset Spread and
Two-Year Benchmark Treasury by the Depositor. Such notice shall be sufficiently
given to Holders of Securities if published in an Authorized Newspaper.
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(f) Not later than seven calendar days nor more than 15 calendar
days prior to the Reset Announcement Date, the Depositor will request DTC or its
nominee (or any successor Clearing Agency or its nominee) to notify the Owners
of Preferred Securities and Clearing Agency Participants holding Preferred
Securities of such Reset Announcement Date.
Section 4.2. Redemption.
(a) On each Indenture Redemption Date and on the stated maturity of
the Debt Securities, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debt Securities. Redemptions of the Trust Securities shall be made
and the Redemption Price shall be payable on each Redemption Date only to the
extent that the Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Preferred Securities, then, by 12:00
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noon, New York City time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee will, so long as the Preferred Securities are in
book-entry-only form, irrevocably deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption Price and
will give such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the holders thereof. If the Preferred Securities are no
longer in book-entry-only form, the Property Trustee, subject to Section 4.2(c),
will irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof
upon surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Securityholders holding Trust Securities so
called for redemption will cease, except the right of such Securityholders to
receive the Redemption Price and any Distribution payable on or prior to the
Redemption Date, but without interest, and such Securities will cease to be
outstanding. In the event that any date on which any Redemption Price is payable
is not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made on such date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue, at
the then applicable rate, from the Redemption Date originally established by the
Trust or such Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the record holders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date, which shall be one Business
Day prior
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to the relevant Redemption Date; provided, however, that in the event that the
Preferred Securities do not remain in book-entry-only form, the relevant record
date shall be the date fifteen days prior to the relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust Securities
are to be redeemed on a Redemption Date, then the aggregate Liquidation Amount
of Trust Securities to be redeemed shall be allocated on a pro rata basis (based
on Liquidation Amounts) among the Common Securities and the Preferred
Securities. The particular Preferred Securities to be redeemed shall be selected
on a pro rata basis (based upon Liquidation Amounts) not more than 60 days prior
to the Redemption Date by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, by such method (including,
without limitation, by lot) as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $ or an integral multiple of $ in excess thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than $ .
The Property Trustee shall promptly notify the Security Registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities that has been or is to be redeemed.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 4.2(f), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from an Indenture Event of
Default shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or Redemption Price of, any
Common Security, and no other payment on account of the redemption, liquidation
or other acquisition of Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Preferred Securities for all
Distribution periods ter-
<PAGE> 35
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minating on or prior thereto, or in the case of payment of the Redemption Price
the full amount of such Redemption Price on all Outstanding Preferred
Securities, shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the payment in full
in cash of all Distributions (including Additional Amounts, if applicable) on,
or the Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Indenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not the Holder of the Common Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made by check mailed
to the address of the Person entitled thereto as such address shall appear on
the Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable distribution dates. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Common Securityholder.
Section 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense, and file all United States Federal, state and local
tax and information returns and reports required to be filed by or in respect of
the Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the appropriate Internal Revenue
Service Form required to be filed in respect of the Trust in each taxable year
of the Trust and (b)
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prepare and furnish (or cause to be prepared and furnished) to each
Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debt Securities of Additional Sums, the
Property Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
Section 4.7. Repayment at Option of Holders.
(a) If a Failed Remarketing (as described in Section 5.4(b) of the
Purchase Contract Agreement and incorporated herein by reference) has occurred,
each holder of Trust Securities who holds such Trust Securities on the day
immediately following the Purchase Contract Settlement Date, shall have the
right (the "Put Option") on the Business Day immediately following _____, _____
to require the Trust to distribute their pro rata share of the Debt Securities
to the Exchange Agent and to require the Exchange Agent to put such Debt
Securities to the Debt Securities Issuer on behalf of such holders on _____,
_____, upon at least three Business Days' prior notice (the "Put Option Exercise
Date"), at a repayment price of $___, ___ per Trust Security plus an amount
equal to the accrued and unpaid Distributions (including deferred distributions
if any) thereon to the date of payment (the "Put Option Repayment Price").
(b) The Exchange Agent shall obtain funds to pay the Put Option
Repayment Price of Trust Securities being repaid un-
<PAGE> 37
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der the Put Option through presentation by it to the Debt Securities Issuer of
Debt Securities in an aggregate principal amount equal to the aggregate stated
liquidation amount of such Trust Securities for repayment on the Put Option
Exercise Date at the Put Option Repayment Price.
(c) In order for the Trust Securities to be repaid on the Put Option
Exercise Date, the Trust must receive on or prior to 4:00 p.m. on the third
Business Day immediately preceding the Put Option Exercise Date, at the
Corporate Trust Office or the New York Office of the Property Trustee (who will
in turn notify the Exchange Agent), the Trust Securities to be repaid with the
form entitled "Option to Elect Repayment" on the reverse thereof or otherwise
accompanying such Trust Security duly completed. Any such notice received by the
Trust shall be irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of the Trust Securities for repayment
shall be determined by the Trust, whose determination shall be final and
binding.
(d) Payment of the Put Option Repayment Price to Holders of Trust
Securities shall be made at the Corporate Trust Office of the Exchange Agent,
provided that the Debt Securities Issuer has paid the Exchange Agent a
sufficient amount of cash in connection with the related repayment of the Debt
Securities no later than 1:00 p.m., New York City time, on the Put Option
Exercise Date by check or wire transfer in immediately available funds at such
place and to such account as may be designated by such Holders. If the Exchange
Agent holds immediately available funds sufficient to pay the Put Option
Repayment Price of such Trust Securities, then, immediately prior to the close
of business on the Put Option Exercise Date, such Trust Securities will cease to
be outstanding and Distributions thereon will cease to accrue, whether or not
Trust Securities are delivered to the Property Trustee, and all other rights of
the Holder in respect of such Trust Securities, including the Holder's right to
require the Trust to repay such Trust Securities, shall terminate and lapse
(other than the right to receive the Put Option Repayment Price but without
interest on such Put Option Repayment Price). Neither the Administrative
Trustees nor the Trust shall be required to register or cause to be registered
the transfer of any Trust Securities for which repayment has been elected. If
payment of the Put Option Repayment Price in respect of Trust Securities is (i)
improperly withheld or refused and not paid either by the Exchange Agent or by
the Depositor as guarantor pursuant to the Guarantee, or (ii) not paid by the
Exchange Agent as the result of an Event of Default with respect to the Debt
Securities presented for
<PAGE> 38
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repayment as described in Section 4.8(b), Distributions on such Trust Securities
will continue to accrue from and including the original Put Option Exercise Date
to the actual date of payment, in which case the actual payment date will be
considered the Put Option Exercise Date for purposes of calculating the Put
Option Repayment Price.
(e) The Debt Securities Issuer will request, not later than seven
nor more than 15 calendar days prior to _____, _____ (the date on which some or
all of the Preferred Securities could be remarketed in the manner described in
Section 5.4(b) of the Purchase Contract Agreement and incorporated herein by
reference) that the Clearing Agency notify the Owners of Preferred Securities of
such remarketing and of the procedures that must be followed if an Owner of
Preferred Securities wishes to exercise such holder's rights with respect to the
Put Option.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.
Upon the formation of the Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Trust.
Section 5.2. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $ Liquidation Amount and integral multiples of $ in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $ Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by manual
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
<PAGE> 39
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Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11
and 5.13.
Section 5.3. Execution and Delivery of Trust Securities Certificates.
At each Time of Delivery, the Administrative Trustees shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
Section 5.4. Registration of Transfer and Exchange of Preferred Securities
Certificates.
The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8. a register or registers for the
purpose of registering Trust Securities Certificates and transfers and exchanges
of Preferred Securities Certificates (the "Securities Register") in which, the
registrar designated by the Depositor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees.
The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have
<PAGE> 40
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been called for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange shall be cancelled and subsequently disposed of by an
Administrative Trustee in accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute con-
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clusive evidence of an undivided beneficial interest in the assets of the Trust,
as if originally issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
Section 5.6. Persons Deemed Securityholders.
The Administrative Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving distributions and for all other purposes whatsoever,
and neither the Trustees nor the Securities Registrar shall be bound by any
notice to the contrary.
Section 5.7. Access to List of Securityholders, Names and Addresses.
Securityholders and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 5.8. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be served.
The Administrative Trustees initially designate Atlas Air, Inc., 538 Commons
Drive, Golden, Colorado 80401, as its principal corporate trust office for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
Section 5.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to Securityholders from
the Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that
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the Paying Agent shall have failed to perform its obligations under this Trust
Agreement in any material respect. The Paying Agent shall initially be the Bank,
and any co-paying agent chosen by the Bank, and acceptable to the Administrative
Trustees and the Depositor. Any Person acting as Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Administrative
Trustees, the Property Trustee and the Depositor. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall
apply to the Bank also in its role as Paying Agent, for so long as the Bank
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
Section 5.10. Ownership of Common Securities by Depositor.
At each Time of Delivery, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the fullest extent
permitted by law, other than a transfer in connection with a consolidation or
merger of the Depositor into another corporation, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section ____ of the Indenture, any attempted transfer
of the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN AS SET FORTH IN THE
TRUST AGREEMENT (AS DEFINED BELOW)."
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Section 5.11. Book-Entry Preferred Securities Certificates; Common Securities
Certificate.
(a) The Preferred Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency by, or on
behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
Definitive Preferred Securities Certificate representing such owner's interest
in such Preferred Securities, except as provided in Section 5.13. Unless and
until Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust Agreement
relating to the Book-Entry Preferred Securities Certificates (including
the payment of the Liquidation Amount of and Distributions on the
Book-Entry Preferred Securities and the giving of instructions or
directions to Owners of Book-Entry Preferred Securities) as the sole
Holder of Book-Entry Preferred Securities and shall have no obligations to
the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11 conflict
with any other provisions of this Trust Agreement, the provisions of this
Section 5.11 shall control; and
(iv) the rights of the owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Certificate Depository Agreement, unless and until Definitive
Preferred Securities Certificates are issued pursuant to Section 5.13, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit pay-
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ments on the Preferred Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13. Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Securities Certificates, and the
Depositor is unable to locate a qualified successor, (b) the Depositor at its
option advises the Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence of an
Indenture Event of Default, Owners of Preferred Securities Certificates
representing beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Administrative Trustees in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Owners of Preferred Securities Certificates, then the
Administrative Trustee shall notify the Clearing Agency and the Clearing Agency
shall notify all Owners of Preferred Securities Certificates and the other
Trustees of the occurrence of any such event and of the availability of the
Definitive Preferred Securities Certificates to Owners of such class or classes,
as applicable, requesting the same. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or Certificates
representing the Book Entry Preferred Securities Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative Trustees,
or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. Neither
the Securities Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively
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rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
Section 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with Section 2.9,
and the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon an Indenture Event of Default, the Indenture Trustee fails or the holders
of not less than 25% in principal amount of the outstanding Debt Securities fail
to declare the principal of all of the Debt Securities to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in writing to the
Depositor and the Indenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debt Securities shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
the Debt Securities has been made and before a judgment or decree for payment of
the money due has been obtained by the Indenture Trustee as in the Indenture
provided, the Holders of a majority in Liquidation Amount of the Pre-
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ferred Securities, by written notice to the Property Trustee, the Depositor and
the Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Indenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of the
Debt Securities,
(B) the principal of (and premium, if any, on) any Debt
Securities which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the Debt
Securities, and
(C) all sums paid or advanced by the Indenture Trustee under
the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and the Property
Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debt Securities,
other than the non-payment of the principal of the Debt Securities which
has become due solely by such acceleration, have been cured or waived as
provided in Section _____ of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Indenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Debt Security. No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of the
Preferred Securities all or part of which is represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of
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business on the day the Property Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided that, unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.14(c).
(c) For so long as any Preferred Securities remain Outstanding, to
the fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Indenture, upon an Indenture Event of Default specified in
Section ______ or ______ of the Indenture, any Holder of Preferred Securities
shall have the right to institute a proceeding directly against the Depositor,
pursuant to Section ___ of the Indenture, for enforcement of payment to such
Holder of the principal amount of or interest on Debt Securities having a
principal amount equal to the Liquidation Amount of the Preferred Securities of
such Holder (a "Direct Action"). In connection with any such Direct Action, the
Holders of the Common Securities will be subrogated to the rights of any Holder
of the Preferred Securities to the extent of any payment made by the Depositor
to such Holder of Preferred Securities as a result of such Direct Action. Except
as set forth in Section 5.14(b) and (c), the Holders of Preferred Securities
shall have no right to exercise directly any right or remedy available to the
holders of, or in respect of, the Debt Securities.
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ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and
10.2 and in the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) So long as any Debt Securities are held by the Property Trustee,
the Property Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Debt Securities, (ii) waive any past default which is waivable under
Section _____ of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debt Securities shall be due and
payable or (iv) consent to an amendment, modification or termination of the
Indenture or the Debt Securities, where such consent shall be required, without,
in each case, obtaining the prior approval of the Holders of at least a majority
in Liquidation Amount of all Outstanding Preferred Securities, provided,
however, that where a consent under the Indenture would require the consent of
the Holders of more than a majority of the aggregate principal amount of Debt
Securities affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of at least the same proportion in
Liquidation Amount of Preferred Securities. The Trustees shall not revoke any
action previously authorized or approved by a vote of the Holders of Preferred
Securities, except by a subsequent vote of the Holders of Preferred Securities.
The Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Indenture Trustee with respect to the Debt
Securities. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be classified
as
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an association taxable as a corporation for United States Federal income tax
purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Trust Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Trust Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least 66 2/3% in Liquidation
Amount of the Outstanding Trust Securities; provided, however, that if an
amendment affects only the powers, preferences or special rights of Preferred
Securities or Common Securities, then such 66 2/3% approval is required only
from the affected class. Notwithstanding any other provision of this Trust
Agreement, no amendment to this Trust Agreement may be made if, as a result of
such amendment, the Trust would cause the Trust to fail or cause to be
classified as a grantor trust for United States Federal income tax purposes.
(d) In the event the consent of the Property Trustee as holder of
the Debt Securities is required under the Indenture with respect to any
amendment or modification of the Indenture, the Property Trustee shall request
the direction of the Holders of the Trust Securities with respect to such
amendment or modification and shall vote with respect to such amendment or
modification as directed by the Holders of a majority in Liquidation Amount of
the Trust Securities voting together as a single class; provided, however that
where a consent under the Indenture would require the consent of more than a
majority of the aggregate principal amount of Debt Securities, the Property
Trustee may only give such consent at the direction of the Holders of at least
the same proportion in an aggregate Liquidation Amount of the Trust Securities;
provided further, that the Property Trustee shall not take any action in
accordance with the directions of the Holders of Trust Securities under this
Section 6.1(d) unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that the Trust will not be classified as
other than a grantor trust for United States federal income tax purposes as a
result of such action and that each Holder of Trust Securities will be treated
as owning an undivided beneficial ownership interest in the corresponding Debt
Securities.
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Section 6.2. Notice of Meetings.
The Administrative Trustees will direct the Property Trustee to
cause a notice of all meetings of the Preferred Securityholders to be given
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. Each such notice will include a statement setting forth (i) the date,
time and place of such meeting, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote, and
(iii) instructions for the delivery of proxies. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
Section 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% of the Preferred Securities (based upon their Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at anytime in their
discretion, call a meeting of Preferred Securityholders to vote on any matters
as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the outstanding
Preferred Securities (based upon their Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based upon their Liquidation
Amount) held by the Preferred Securityholders of record present, either in
person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
Section 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $ of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote. Notwithstanding the preceding
sentence, any Pre-
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ferred Securities that are owned by the Depositor, the Trustees or any Affiliate
of the Depositor or any Trustee, will not be entitled to vote and will, for
purposes of voting, be treated as if such Preferred Securities were not
outstanding; provided, however, that the foregoing limitation on voting shall
not apply if all of the Outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any Affiliate of the Depositor or
any Trustee.
Section 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to
vote thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the Administrative
Trustees may direct, for verification prior to the time at which such vote shall
be taken. Pursuant to a resolution of the Property Trustee, proxies may be
solicited in the name of the Property Trustee or one or more officers of the
Property Trustee. Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several persons, any one of them may vote
at any meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
Section 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting and without notice if Securityholders holding more than
a majority of all Outstanding Trust Securities (based upon their Liquidation
Amount) entitled to vote in respect of such action (or such larger proportion
thereof as shall be required by any express provision of this Trust Agreement)
shall consent to the action in writing.
Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled
to notice of and to vote at any meeting or by written consent, or to participate
in any distribution on the
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Trust Securities in respect of which a record date is not otherwise provided for
in this Trust Agreement, or for the purpose of any other action, the
Administrative Trustees may from time to time fix a date, not more than 90 days
prior to the date of any meeting of Securityholders or the payment of a
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders or Owners may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders or Owners in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders or Owners signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.1) conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any
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Trust Security shall bind every future Securityholder of the same Trust Security
and the Securityholder of every Trust Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the Trust in
reliance thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Securityholder entitled hereunder
to take any action hereunder with regard to any particular Trust Security may do
so with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such liquidation
amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Bank, the Property Trustee
and the Delaware Trustee.
The Bank, Property Trustee and the Delaware Trustee, each severally
on behalf of and as to itself, hereby represents and warrants for the benefit of
the Depositor and the Securityholders that:
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly organized,
validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement and
satisfies for the Trust Section 3807 of the Delaware Business Trust Act;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes
the valid and legally binding agreement of each of the Property Trustee
and the Delaware Trustee enforceable against each of them in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(f) the execution, deliver and performance of this Trust Agreement
has been duly authorized by all necessary corporate or other action on the
part of the Property
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Trustee and the Delaware Trustee and does not require any approval of
stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or
By-laws of the Property Trustee or the Delaware Trustee, (ii) 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 indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Delaware Trustee is a
party or by which it is bound, or (iii) violate any law, governmental rule
or regulation of the United States or the State of Delaware, as the case
may be, governing the banking, trust or general powers of the Property
Trustee or the Delaware Trustee (as appropriate in context) or any order,
judgment or decree applicable to the Property Trustee or the Delaware
Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee (as appropriate in context) contemplated herein or
therein 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
governmental authority or agency under any existing Federal law governing
the banking, trust or general powers of the Property Trustee or the
Delaware Trustee, as the case may be, under the laws of the United States
or the State of Delaware;
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened
against or affecting the Property Trustee or the Delaware Trustee in any
court or before an governmental authority, agency or arbitration board or
tribunal which, individually or in the aggregate, would materially and
adversely affect the Trust or would question the right, power and
authority of the Property Trustee or the Delaware Trustee, as the case may
be, to enter into or perform its obligations as one of the Trustees under
this Trust Agreement.
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Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Time of
Delivery on behalf of the Trust have been duly authorized and will have
been, duly and validly executed, issued and delivered by the Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement and the Securityholders will be, as
of each such date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Trust (or the Trustees on behalf of the Trust) under the laws of
the State of Delaware or any political subdivision thereof in connection
with the execution, delivery and performance by the Property Trustee or
the Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release the Property
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful miscon-
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duct. To the extent that, at law or in equity, an Administrative Trustee has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to the Securityholders, such Administrative Trustee shall not be liable
to the Trust or to any Securityholder for such Trustee's good faith reliance on
the provisions of this Trust Agreement. The provisions of this Trust Agreement,
to the extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms thereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to an
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in Liquidation
Amount of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power con-
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ferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debt Securities and the
Payment Account shall be to deal with such Property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 3.1 and except to
the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor of their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
Section 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such Event of Default to the Securityholders, the Administrative Trustees and
the Depositor, unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Debt
Securities pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, notice of such
exercise to the Securityholders and the Property Trustee, unless such exercise
shall have been revoked.
Section 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
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(a) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution, opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (iii) the Property Trustee is unsure
of the application of any provision of this Trust Agreement, then, except
as to any matter as to which the Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken and the Property Trustee
shall take such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Depositor; provided, however, that if the Property
Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but shall
be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and in
the best interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith, negligence
or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee
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(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
re-recording, refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel (which counsel may
be counsel to the Depositor or any of its Affiliates, and may include any
of its employees) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon
and in accordance with such advice, such counsel may be counsel to the
Depositor or any of its Affiliates, and may include any of its employees;
the Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court of
competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Securityholders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, provided that the Property Trustee shall be
responsible
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for its own negligence or recklessness with respect to selection of any
agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be protected
in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debt Securities.
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Section 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or
agent of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates, (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to
be within the scope of authority conferred on such Indemnified Person by
this Trust Agreement, except that no Indemnified Person shall be entitled
to be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with
respect to such acts or omissions; and
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(d) to the fullest extent permitted by applicable law, to advance
expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time
to time, prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Depositor of (i) a written
affirmation by or on behalf of the Indemnified Person of its or his good
faith belief that it or he has met the standard of conduct set forth in
this Section 8.6 and (ii) an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in the
preceding subsection.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee may engage in or possess an interest
in other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depository for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Depositor or its Affiliates.
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property
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Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Property Trustee
with respect to the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or (ii)
a legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
Section 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
Section 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
anytime or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any Jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Adminis-
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trative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee jointly with the
Property Trustee, of al1 or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case an Indenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified
hereunder, shall be exercised, solely by such Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or
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separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent that
under any law of any jurisdiction in which any particular act is to be
performed, the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or
separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case an Indenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Depositor. Upon the written request
of the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal.
A successor to any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any
other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of
a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee")
and no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the successor Trustee required by Section
8.11
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shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If an Indenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Indenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees, and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when an Indenture Event of
Default shall have occurred and be continuing, the Preferred Securityholders, by
Act of the Securityholders of a majority in Liquidation Amount of the Preferred
Securities then outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and such successor
Trustee shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when an Indenture Event of Default shall have
occurred and be continuing, the Common Securityholder by Act of the Common
Securityholder delivered to the Administrative Trustee shall promptly appoint a
successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Securityholder or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any Securityholder who has
been a Securityholder of Trust Securities for at least six months may, on behalf
of himself and all
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others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or Delaware Trustee, as the case may be, set forth
in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without an further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Depositor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and if the Property Trustee is the
resigning Trustee shall duly assign, transfer and deliver to the successor
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or de-
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sirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Trust and (b) shall add to
or change any of the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the Trust by more than one
Relevant Trustee, it being understood that nothing herein or in such amendment
shall constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Trust or any successor Relevant Trustee
such retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee or the Delaware
Trustee maybe merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant Trustee, shall
be the successor of such Relevant Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
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Section 8.13. Preferential Collection of Claims Against Depositor or Trust.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities (or, if
the Trust Securities are Discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Trust
Securities) and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Property Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the
event the Property Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Property Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel, and any other amounts due
the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
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Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 8.14. Reports by Property Trustee.
(a) Not later than May 15 of each year commencing with May 15, ,
the Property Trustee shall transmit to all Securityholders in accordance
with Section 10.8, and to the Depositor, a brief report dated as of such
December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of
its obligations under this Trust Agreement during the twelve-month period
(or, in the case of the initial report, the period since the Closing Date)
ending with such December 31 or, if the Property Trustee has not complied
in any material respect with such obligations, a description of such
noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects
the Trust Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq National Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities are
listed or traded, with the Commission and with the Depositor.
Section 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such
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documents, reports and information as required by Section 314 of the Trust
Indenture Act (if any) and the compliance certificate required by Section 314(a)
of the Trust Indenture Act in the form, in the manner an at the times required
by Section 314 of the Trust Indenture Act.
Section 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314 (c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be five, provided that the
Holder of all of the Common Securities by written instrument may increase
or decrease the number of Administrative Trustees. The Property Trustee
and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
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Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement, as set
forth herein.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve
on December 31, 2054 (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 9.4.
Section 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Termination Event" upon which the Trust shall be deemed dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or
the dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor
at any time (which direction is optional and wholly within the discretion
of the Depositor) to dissolve the Trust and distribute Debt Securities to
Securityholders in exchange for the Preferred Securities;
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all the Debt Securities;
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(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction; and
(e) the occurrence and continuation of an Investment Company Event;
provided, however, that if there is an opportunity to eliminate the Investment
Company Event by taking some Ministerial Action within 90 days of the occurrence
of the Investment Company Event, the Administrative Trustees shall pursue such
Ministerial Action and such Investment Company Event shall not be deemed to be
an Early Termination Event hereunder.
Section 9.3. Termination.
The respective obligations and responsibilities of the Trustees and
the Trust created and continued hereby shall terminate upon the latest to occur
of the following: (a) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to Section 4.2, of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b), (d)
or (e) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Debt Securities with an interest rate equal to % if on or prior to , and
the Reset Rate thereafter and bearing accrued and unpaid interest in an amount
equal to the accrued and unpaid Distributions on such Trust Securities, subject
to Section 9.4(d). Notice of liquidation shall be given by the Property Trustee
by first-class mail, postage prepaid mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
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(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debt Securities; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debt Securities, or
if Section 9.4(d) applies receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debt Securities to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debt Securities in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
outstanding, (ii) certificates representing a Like Amount of Debt Securities
will be issued to holders of Trust Securities Certificates, upon surrender of
such certificates to the Administrative Trustees or their agent for exchange,
(iii) the Depositor shall use its reasonable efforts to have the Debt Securities
listed on the New York Stock Exchange or on such other exchange, interdealer
quotation system or self-regulatory organization as the Preferred Securities are
then listed, (iv) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debt Securities, accruing
interest at the rate provided for in the Debt Securities from the last
Distribution Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no patents of interest or principal will be
made to Holders of Trust Securities Certificates with respect to such Debt
Securities) and (v) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Debt Securities upon
surrender of Trust Securities Certificates.
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(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debt Securities in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated by the Property Trustee in
such manner as the Property Trustee determines. In such event Securityholders
will be entitled to receive out of the assets of the Trust available for
distribution to Securityholders, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"). If the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if an Indenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Trust.
The Trust may not merge with or into, consolidate, amalgamate,
convert into or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any person, except pursuant to this
Section 9.5 or Section 9.4. At the request of the Depositor, with the consent of
the Administrative Trustees and without the consent of the Holders of the
Preferred Securities, the Property Trustee or the Delaware Trustee, the Trust
may merge with or into, consolidate, amalgamate, convert into or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred
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Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Debt
Securities, (iii) the Successor Securities are listed or traded, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation, conversion, replacement, conveyance,
transfer or lease does not adversely affect the rights preferences and
privileges of the holders of the Preferred Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, conversion, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor Securities) in any
material respect, (b) following such merger, consolidation, amalgamation,
conversion, replacement, conveyance, transfer or lease, neither the Trust nor
such successor entity will be required to register as an investment company
under the 1940 Act and (c) following such merger, consolidation, amalgamation,
conversion, replacement, conveyance, transfer or lease, the Trust or the
successor entity will continue to be treated as a grantor trust for U.S. federal
income tax purposes, and (viii) the Depositor owns all of the common securities
of such successor entity and guarantees the obligations of such successor entity
under the Successor Securities, at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, the Trust shall not, except with the
consent of holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, convert into, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, conversion,
merger, replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other
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than a grantor trust for United States Federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS; REMARKETING
Section 10.1. Limitation of Rights of Securityholders.
The death or incapacity of any person having an interest, beneficial
or otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Administrative Trustees and the Depositor, without the
consent of any Securityholders, (i) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with the other
provisions of this Trust Agreement, or (ii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will be classified for United States Federal income tax
purposes as a grantor trust at all times that any Trust Securities are
outstanding or to ensure that the Trust will not be required to register as an
investment company under the 1940 Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect the
interests of any Securityholder, and any amendments of this Trust Agreement
pursuant to Section 10.2 shall become effective when notice thereof is given to
the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of
this Trust Agreement may be amended by the Trustees and the Depositor with (i)
the consent of Trust Securityholders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then Outstanding
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and (ii) receipt by the Trustees of an Opinion of Counsel to the effect that
such amendment or the exercise of any power granted to the Trustees in
accordance with such amendment will not affect the Trust's status as a grantor
trust for United States Federal income tax purposes or the Trust's exemption
from status of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers,
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
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Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.4. Governing Law.
This Trust Agreement and the rights and obligations of each of the
Securityholders, the Trust and the Trustees with respect to this Trust Agreement
and the Trust Securities shall be construed in accordance with and governed by
the laws of the State of Delaware.
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a
day that is not a Business Day, then such payment need not be made on such date
but may be made on the next succeeding day is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article ________ of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall
not affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or
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permitted to be given or served to or upon an Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (a) in the case of a Preferred Securityholder, to such
Preferred Securityholder as such Securityholder's name and address may appear on
the Securities Register; and (b) in the case of the Common Securityholder or the
Depositor, to Atlas Air, Inc., 538 Commons Drive, Golden, Colorado 80401,
Attention: Chief Financial Officer, facsimile no. (303) 526-5051. Any notice to
Preferred Securityholders shall also be given to such owners as have, within two
years preceding the giving of such notice, filed their names and addresses with
the Property Trustee for that purpose. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to The First
National Bank of Chicago, One First National Plaza, Suite 0126,Chicago, Illinois
60670-0126 Attention: Corporate Trust Services Division; (b) with respect to the
Delaware Trustee, to First Chicago Delaware Inc., c/o FCC National Bank, 300
King Street, Wilmington, Delaware 19801; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of Atlas Air Capital II."
Such notice, demand or other communication to or upon the Trust or e Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust or the Property Trustee.
Section 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the
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event the Depositor takes action in violation of this Section 10.9, the Property
Trustee agrees, for the benefit of Securityholders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control . If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Agreement
as so modified or excluded , the latter provision shall be deemed to apply to
this Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
Section 10.11. Remarketing.
(a) The Debt Securities Issuer will request, not later than 7 nor
more than 15 calendar days prior to the Remarketing Date that the Clearing
Agency notify the Holders of Preferred Securities of the Remarketing and of the
procedures that must be followed if a Holder of Preferred Securities wishes to
exercise such Holder's rights with respect to the Put Option if there is a
Failed Remarketing.
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(b) later than 5:00 P.M., New York City time, on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, each Holder of
the Preferred Securities may elect to have Preferred Securities held by such
Holder remarketed. Holders of Preferred Securities shall give notice of their
election to have such Preferred Securities remarketed to the Custodial Agent
pursuant to the Pledge Agreement. Any such notice shall be irrevocable after
5:00 P.M., New York City time on the fifth Business Day immediately preceding
the Purchase Contract Settlement Date and may not be conditioned upon the level
at which the Reset Rate is established. Promptly after 5:30 P.M., New York City
time, on such fifth Business Day, the Property Trustee, based on the notices
received by it prior to such time, shall notify the Trust, the Depositor and the
Remarketing Agent of the number of Preferred Securities to be tendered for
remarketing.
(c) The right of each Holder to have Preferred Securities tendered
for purchase shall be limited to the extent that (i) the Remarketing Agent
conducts a remarketing pursuant to the terms of the Remarketing Agreement, (ii)
Preferred Securities tendered have not been called for redemption, (iii) the
Remarketing Agent is able to find a purchaser or purchasers for tendered
Preferred Securities, at a price of not less than 100% of the stated liquidation
amount thereof plus accrued and unpaid distributions thereon, and (iv) such
purchaser or purchasers deliver the purchase price therefor to the Remarketing
Agent as and when required.
(d) On the Remarketing Date, the Remarketing Agent shall use
reasonable efforts to remarket at a price equal to approximately __% of the
aggregate liquidation amount thereof, Preferred Securities tendered or deemed
tendered for purchase.
(e) If none of the Holders elect to have Preferred Securities held
by them remarketed, the Reset Rate shall be the rate determined by the
Remarketing Agent, subject to the terms of the Remarketing Agreement, as the
rate that would have been established had a remarketing been held on the
Remarketing Date.
(f) If the Remarketing Agent has determined that it will be able to
remarket all Preferred Securities tendered or deemed tendered prior to 4:00
P.M., New York City time, on the Remarketing Date, the Remarketing Agent shall
determine the Reset Rate, which shall be the rate per annum (rounded to the
nearest one-thousandth (0.001) of one percent per annum) which
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the Remarketing Agent determines, subject to the terms of the Remarketing
Agreement, to be the lowest rate per annum that will enable it to remarket all
Preferred Securities tendered or deemed tendered for remarketing.
(g) If, by 4:00 P.M., New York City time, on the Remarketing Date,
the Remarketing Agent is unable to remarket all Preferred Securities tendered or
deemed tendered for purchase or if the remarketing shall not have occurred
because a condition precedent to the remarketing shall not have been fulfilled,
a Failed Remarketing shall be deemed to have occurred and the Remarketing Agent
shall so advise by telephone the Collateral Agent, Debt Securities Issuer,
Property Trustee, Delaware Trustee and Clearing Agency.
(h) By approximately 4:30 P.M., New York City time, on the
Remarketing Date, provided that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (i) the Collateral Agent, Debt
Securities Issuer, Property Trustee, Delaware Trustee and Clearing Agency of the
Reset Rate determined in the Remarketing and the number of Preferred Securities
sold in the remarketing, (ii) each purchaser (or the Clearing Agency Participant
thereof) of the Reset Rate and the number of Preferred Securities such purchaser
is to purchase and (iii) each purchaser to give instructions to its Clearing
Agency Participant to pay the purchase price on the Purchase Contract Settlement
Date in same day funds against delivery of the Preferred Securities purchased
through the facilities of the Clearing Agency.
(i) In accordance with the Clearing Agency's normal procedures, on
the Purchase Contract Settlement Date, the transactions described above with
respect to each Preferred Security tendered for purchase and sold in the
remarketing shall be executed through the Clearing Agency, and the accounts of
the respective Clearing Agency Participants shall be debited and credited and
such Preferred Securities delivered by book entry as necessary to effect
purchases and sales of such Preferred Securities. The Clearing Agency shall make
payment in accordance with its normal procedures.
(j) If any Holder selling Preferred Securities in the remarketing
fails to deliver such Preferred Securities, the Clearing Agency Participant of
such selling Holder and of any other Person that was to have purchased Preferred
Securities in the remarketing may deliver to any such other Person a number of
Preferred Securities that is less than the number of Preferred Securities that
otherwise was to be purchased by such
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person. In such event, the number of Preferred Securities to be so delivered
shall be determined by such Clearing Agency Participant, and delivery of such
lesser number of Preferred Securities shall constitute good delivery.
(k) The Remarketing Agent is not obligated to purchase any Preferred
Securities in a remarketing or otherwise. Neither the Trust, any Trustee, the
Depositor nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of Preferred Securities for remarketing.
(l) The tender and settlement procedures set forth in this Section
10.11, including provisions for payment by purchasers of Preferred Securities in
the remarketing, shall be subject to modification, notwithstanding any provision
to the contrary set forth herein to the extent required by the Clearing Agency
or if the book-entry system is no longer available for the Preferred Securities
at the time of the remarketing, to facilitate the tendering and remarketing of
Preferred Securities in certificated form. In addition, the Remarketing Agent
may, notwithstanding any provision to the contrary set forth in Article 6 or
Section 10.2, modify the settlement procedures set forth herein in order to
facilitate the settlement process.
(m) Anything herein to the contrary notwithstanding, the Reset Rate
shall in no event exceed the maximum rate permitted by applicable law and, as
provided in the Remarketing Agreement, neither the Remarketing Agent nor the
Reset Agent (as defined in the Remarketing Agreement) shall have any obligation
to determine whether there is any limitation under applicable law on the Reset
Rate or, if there is any such limitation, the maximum permissible Reset Rate on
the Preferred Securities and they shall rely solely upon written notice from the
Depositor and the Trust (which the Depositor and the Trust agree to provide
prior to the tenth Business Day before the Purchase Contract Settlement Date) as
to whether or not there is any such limitation and, if so, the maximum
permissible Reset Rate.
Section 10.12. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
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BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT AND AGREEMENT TO THE OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
ATLAS AIR, INC., as Depositor
By:_____________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as
Property Trustee
By:_____________________________________
Name:
Title:
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:_____________________________________
Name:
Title:
________________________________________
[ ],
as Administrative Trustee
________________________________________
[ ],
as Administrative Trustee
________________________________________
[ ],
as Administrative Trustee
<PAGE> 87
A-2
EXHIBIT A
CERTIFICATE OF TRUST
OF
ATLAS AIR CAPITAL II
THIS Certificate of Trust of Atlas Air Capital II (the "Trust"),
dated April 23, 1999, is being duly executed and filed by The First National
Bank of Chicago, a national banking association, First Chicago Delaware Inc., a
Delaware corporation, and Stephen Nevin, as trustees, to form a business trust
under the Delaware Business Trust Act (12 Del. C. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is Atlas
Air Capital II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is First
Chicago Delaware, Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
By: /s/ Sandra L. Caruba
_____________________________________
Name: Sandra L. Caruba
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Sandra L. Caruba
_____________________________________
Name: Sandra L. Caruba
Title: Vice President
/s/ Stephen Nevin
________________________________________
Stephen Nevin, as trustee
A-1
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EXHIBIT B
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: General Counsel's Office
Re: Atlas Air Capital II % [Cumulative Quarterly
Income] Preferred Securities, [Series A]
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating
to the issuance and deposit with The Depository Trust Company ("DTC") of the
Atlas Air Capital II % [Cumulative Quarterly Income] Preferred Securities,
[Series A] (the "Preferred Securities"), of Atlas Air Capital II, a Delaware
business trust (the "Issuer"), formed pursuant to a Trust Agreement between
Atlas Air, Inc. ("Atlas"), The First National Bank of Chicago, as Property
Trustee, First Chicago Delaware, Inc., as Delaware Trustee, and the
Administrative Trustees named therein. The payment of distributions on the
Preferred Securities, and payments due upon liquidation of Issuer or redemption
of the Preferred Securities, to the extent the Issuer has funds available for
the payment thereof are guaranteed by Atlas to the extent set forth in a
Guarantee Agreement dated ______, 1999 by Atlas with respect to the Preferred
Securities. Atlas and the Issuer propose to sell the Preferred Securities to
certain Underwriters (the "Underwriters") pursuant to an Underwriting Agreement
dated __________, 1999 by and among the Underwriters, the Issuer and Atlas and
the Underwriters wish to take delivery of the Preferred Securities through DTC.
The First National Bank of Chicago is acting as transfer agent and registrar
with respect to the Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC agree
among each other as follows:
1. Prior to the closing of the sale of the Preferred Securities to
the Underwriters, which is expected to occur on or about _________, 1999, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an
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aggregate of Preferred Securities and bearing the following legend:
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.
2. The Amended and Restated Trust Agreement of the Issuer provides
for the voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
a 11 or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable such expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a
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method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes) shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or
by mail or any other means to:
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Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the
CUSIP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "Atlas Air Capital II ___% [Cumulative Quarterly Income] Preferred
Securities, [Series A]."
8. Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in next day funds on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be made
payable to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DTC may by prior written notice direct the Issuer and the
Transfer Agent and Registrar to use any other telecopy number or address of DTC
as the number or address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depositary with
respect to the Preferred Securities at any time by giving at least 90 days'
prior written notice to the Issuer and the Transfer Agent and Registrar (at
which time DTC will confirm with the Issuer or the Transfer Agent and Registrar
the aggregate number of Preferred Securities deposited with it) and discharging
its responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may deter-
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<PAGE> 92
mine to make alternative arrangements for book-entry settlement for the
Preferred Securities, make available one or more separate global certificates
evidencing Preferred Securities to any Participant having Preferred Securities
credited to its DTC account, or issue definitive Preferred Securities to the
beneficial holders thereof, and in any such case, DTC agrees to cooperate fully
with the Issuer and the Transfer Agent and Registrar, and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar. 12. In
the event that the Issuer determines that beneficial owners of Preferred
Securities shall be able to obtain definitive Preferred Securities, the Issuer
or the Transfer Agent and Registrar shall notify DTC of the availability of
certificates. In such event, the Issuer or the Transfer Agent and Registrar
shall issue, transfer and exchange certificates in appropriate amounts, as
required by DTC and others, and DTC agrees to cooperate fully with the Issuer
and the Transfer Agent and Registrar and to return the Global Certificate, duly
endorsed for transfer as directed by the Issuer or the Transfer Agent and
Registrar, together with any other documents of transfer reasonably requested by
the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of Atlas Air Capital II.
Very truly yours,
ATLAS AIR CAPITAL II
(As Issuer)
(Name of Trustee)
By:_____________________________________
Administrative Trustee
By:_____________________________________
Name:
Title:
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<PAGE> 93
________________________________________
(As Transfer Agent and Registrar)
By:_____________________________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:________________________________
Authorized Officer
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<PAGE> 94
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN AS SET FORTH
IN THE TRUST AGREEMENT (AS DEFINED BELOW)
Certificate Number Number Of Common Securities
C-1
Certificate Evidencing Common Securities
of
ATLAS AIR CAPITAL II
___% Common Securities
(Liquidation Amount $ Per Common Security)
Atlas Air Capital II, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Atlas Air, Inc.
(the "Holder") is the registered owner of (___) common securities of the Trust
representing beneficial interests of the Trust and designated the___ % Common
Securities (liquidation amount $ per Common Security) (the "Common
Securities"). To the extent set forth in Section 5.10 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of _______, 1999, as the same may be amended from time to time (the "Trust
Agreement") including the designation of the terms of the Common Securities as
set forth therein. The Trust will furnish a copy of the Trust Agreement to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
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<PAGE> 95
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this _____ day of _______, _____.
ATLAS AIR CAPITAL II
By:_____________________________________
Name:
Administrative Trustee
FORM OF REVERSE OF SECURITY
Distributions payable on each Common Security will be fixed at a
rate per annum of __% through and including , and at the Reset Rate
thereafter (the "Coupon Rate") of the stated liquidation amount of $ per
Common Security, such rate being the rate of interest payable on the Debt
Securities to be held by the Property Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly at the rate of
__% through and including , and at the Reset Rate thereafter (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
such cash distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debt Securities held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and for any period shorter than
a full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
in such 90-day period.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on _____________, _____________ and
______________ of each year, commencing on , , to Holders of record one
Business Day prior to such payment date, which payment dates shall correspond to
the interest payment dates on the Debt Securities. The Debt Securities Issuer
has the right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debt Securities for a period
not extending beyond the date of maturity of the Debt Securities (each an
"Extension Period") and, as a consequence of such deferral, Distributions will
also be deferred. Despite
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<PAGE> 96
such deferral, quarterly Distributions will continue to accrue with interest
thereon at the rate of __% through and including , and at the Reset Rate
thereafter, compounded quarterly during any such Extension Period (to the extent
permitted by applicable law). Payments of accrued Distributions will be payable
to Holders as they appear on the books and records of the Trust on the record
date next preceding the quarterly Distribution payment date on which the
relevant Extension Period ends. Upon the termination of any Extension Period and
the payment of all amounts then due, the Debt Securities Issuer may commence a
new Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed beyond the maturity date
of the Debt Securities, and no Extension Period may end other than on a
quarterly Distribution payment date.
The Common Securities shall be redeemable as provided in the
Declaration.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Trust
to repay $_____ stated liquidation amount of the within Common Security,
pursuant to its terms, on the "Put Option Exercise Date," together with
Distributions thereon accrued but unpaid to the date of repayment, to the
undersigned at:
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Declaration, a new
Common Security or Common Securities representing the remaining stated
liquidation amount, if any, of this Common Security.
For this Option to Elect Repayment to be effective, the within Common Security
with this Option to Elect Repayment duly completed must be received by the Trust
at the Corporate Trust Office of the Property Trustee at The First National Bank
of Chicago, One First National Plaza, Suite 0126, Chicago IL 60670-0126,
Attention: Corporate Trust Administration, no later than 5:00 p.m. on the third
Business Day immediately preceding , .
Date: Signature:
------------------------------
Signature Guarantee:
-------------------------
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<PAGE> 97
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Common Security in every particular
without alternation or enlargement or any change whatsoever.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: Signature:
---------------------------
Signature Guarantee:
-------------------------
(Sign exactly as your name appears on the other side
of this Common Certificate)
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<PAGE> 98
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement dated as of ______________, 1999, between Atlas Air, Inc.,
a Colorado corporation ("Atlas"), and Atlas Air Capital II, a Delaware business
trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debt Securities from Atlas and to issue and
sell ___% [Cumulative Quarterly Income] Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of _________, 1999 as the same may be amended from time to time (the "Trust
Agreement");
WHEREAS, Atlas will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debt Securities;
NOW, THEREFORE, in consideration of the purchase by each holder of
the Preferred Securities, which purchase Atlas hereby agrees shall benefit Atlas
and which purchase Atlas acknowledges will be made in reliance upon the
execution and delivery of this Agreement, Atlas and Trust hereby agree as
follows:
ARTICLE I
Section 1.1. Guarantee by Atlas.
Subject to the terms and conditions hereof, Atlas hereby irrevocably
and unconditionally guarantees to each person or entity to whom the Trust is now
or hereafter becomes indebted or liable (the "Beneficiaries") the full payment,
when and as due, of any and all obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust, other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
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<PAGE> 99
Section 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
anytime any holder of Preferred Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Securities, under any Obligation,
under the Guarantee Agreement dated the date hereof by Atlas and The First
National Bank of Chicago as guarantee trustee or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.3. Waiver of Notice.
Atlas hereby waives notice of acceptance of this Agreement and of
any Obligation to which it applies or may apply, and Atlas hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.4. No Impairment.
The obligations, covenants, agreements and duties of Atlas under
this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the obligations or for the performance o any other Obligation
under, arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement composition or
readjustment of debt of, or other similar proceedings affecting the Trust
or any of the assets of the Trust.
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<PAGE> 100
There shall be no obligation of the Beneficiaries to give notice to,
or obtain the consent of, Atlas with respect to the happening of any of the
foregoing.
Section 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Atlas and
Atlas waives any right or remedy to require that any action be brought against
the Trust or any other person or entity before proceeding against Atlas.
Section 1.6. Subrogation.
Atlas shall be subrogated to all (if any) rights of the Trust in
respect of any amounts paid to the Beneficiaries by Atlas under this Agreement;
provided, however, that Atlas shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Agreement, if, at the
time of any such payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
Section 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of Atlas and
shall inure to the benefit of the Beneficiaries.
Section 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred Securities
of any series are outstanding, this Agreement sha11 not be modified or amended
in any manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
Section 2.3. Notices.
Any notice, request or other communication required or permitted to
be given hereunder shall be given in writing by delivering the same against
receipt therefor by facsimile transmission (confirmed by mail), telex or by
registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answer-back, if sent by telex):
D-2
<PAGE> 101
Atlas Air Capital II
c/o FCC National Bank
300 King Street
Wilmington, Delaware 19801
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Department
Atlas Air, Inc.
530 Commons Drive
Golden, Colorado 80401
Facsimile No.: (303) 526-5051
Attention: Chief Financial Officer
Section 2.4.
This agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York.
This Agreement is executed as of the day and year first above
written.
ATLAS AIR, INC.
By:_____________________________________
Name:
Title:
ATLAS AIR CAPITAL II
By:_____________________________________
Name:
Title:
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<PAGE> 102
EXHIBIT E
If the Preferred Security is to be a Global Certificate Insert--This
Preferred Security is a Global Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
Atlas Air Capital II or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Certificate Number Number Of Preferred Securities
P-_____________ Cusip No.__________
Certificate Evidencing Preferred Securities
of
ATLAS AIR CAPITAL II
____% [Cumulative Quarterly Income] Preferred Securities, Series
(Liquidation Amount $___ Per Preferred Security)
Atlas Air Capital II, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that (the
"Holder") is the registered owner of (____) preferred securities of the Trust
representing an undivided beneficial interest in the assets of the Trust and
designated the Atlas Air Capital II _____% [Cumulative Quarterly Income]
Preferred Securities, Series (liquidation amount $ per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of
D-3
<PAGE> 103
the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.4 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _______, 1999, as the same may be amended from time to time
(the "Trust Agreement"). The Holder is entitled to the benefits of the
Guarantee Agreement entered into by Atlas Air, Inc., a Delaware corporation, and
The First National Bank of Chicago, as guarantee trustee, dated as of ________,
1999, as the same may be amended from time to time (the "Guarantee"), to the
extent provided therein. The Trust will furnish a copy of the Trust Agreement
and the Guarantee to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this _____ day of ______________, ____.
ATLAS AIR CAPITAL II
By:_____________________________________
Name:
Administrative Trustee
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<PAGE> 104
FORM OF REVERSE OF SECURITY
Distributions payable on each Preferred Security will be fixed at a
rate per annum of __% through and including , and at the Reset Rate
thereafter (the "Coupon Rate") of the stated liquidation amount of $ per
Preferred Security, such rate being the rate of interest payable on the Debt
Securities to be held by the Property Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly at the rate of
__% through and including , and at the Reset Rate thereafter (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
such cash distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debt Securities held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and for any period shorter than
a full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
in such 90-day period.
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on _____________, _____________ and
______________ of each year, commencing on , , to Holders of record
one Business Day prior to such payment date, which payment dates shall
correspond to the interest payment dates on the Debt Securities. If the
Preferred Securities shall not continue to remain in book-entry form or are not
in book-entry form at issuance, the relevant record dates for the Preferred
Securities shall conform to the rules of any securities exchange on which the
Preferred Securities are listed and, if none, shall be one Business Day before
the relevant payment dates, which payment dates shall correspond to the interest
payment dates on the Debt Securities. The Debt Securities Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debt Securities for a period not
extending beyond the date of maturity of the Debt Securities (each an "Extension
Period") and, as a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon at the rate of __% through and including , and
at the Reset Rate thereafter, compounded quarterly during any such Extension
Period (to the extent permitted by applicable law). Payments of
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<PAGE> 105
accrued Distributions will be payable to Holders as they appear on the books and
records of the Trust on the record date next preceding the quarterly
Distribution payment date on which the relevant Extension Period ends. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Debt Securities Issuer may commence a new Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed beyond the maturity date of the Debt Securities, and no Extension
Period may end other than on a quarterly Distribution payment date.
The Preferred Securities shall be redeemable as provided in the
Declaration.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Trust
to repay $_____ stated liquidation amount of the within Preferred Security,
pursuant to its terms, on the "Put Option Exercise Date," together with
Distributions thereon accrued but unpaid to the date of repayment, to the
undersigned at:
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Declaration, a new
Preferred Security or Preferred Securities representing the remaining stated
liquidation amount, if any, of this Preferred Security.
For this Option to Elect Repayment to be effective, the within Preferred
Security with this Option to Elect Repayment duly completed must be received by
the Trust at the Corporate Trust Office of the Property Trustee at The First
National Bank of Chicago, One First National Plaza, Suite 0126, Chicago IL
60670-0126, Attention: Corporate Trust Administration, no later than 5:00 p.m.
on the third Business Day immediately preceding , .
Date: Signature:
------------------------------
Signature Guarantee:
-------------------------
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Preferred Security in every
particular without alternation or enlargement or any change whatsoever.
E-4
<PAGE> 1
EXHIBIT 4.11
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
ATLAS AIR, INC., AS DEPOSITOR,
THE FIRST NATIONAL BANK OF CHICAGO,
AS PROPERTY TRUSTEE,
FIRST CHICAGO DELAWARE INC.,
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF _______________, 1999
ATLAS AIR CAPITAL III
============================================================================
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINED TERMS
Section 1.1. Definitions.............................................2
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1. Name...................................................16
Section 2.2. Office of the Delaware Trustee; Principal Place
of Business.........................................16
Section 2.3. Initial Contribution of Trust Property;
Organizational Expenses.............................16
Section 2.4. Issuance of the Preferred Securities...................16
Section 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debt Securities.....................17
Section 2.6. Declaration of Trust...................................18
Section 2.7. Authorization to Enter into Certain
Transactions........................................18
Section 2.8. Assets of Trust........................................23
Section 2.9. Title to Trust Property................................23
ARTICLE III
PAYMENT ACCOUNT
Section 3.1. Payment Account........................................23
ARTICLE IV
DISTRIBUTIONS; REDEMPTION; REPAYMENT
Section 4.1. Distributions..........................................24
Section 4.2. Redemption.............................................26
Section 4.3. Subordination of Common Securities.....................28
Section 4.4. Payment Procedures.....................................29
Section 4.5. Tax Returns and Reports................................29
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust............30
Section 4.7. Payments under Indenture...............................30
Section 4.8. Repayment at Option of Holders.........................30
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ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership......................................32
Section 5.2. The Trust Securities Certificates......................32
Section 5.3. Execution and Delivery of Trust Securities
Certificates........................................33
Section 5.4. Registration of Transfer and Exchange of
Preferred Securities Certificates...................33
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.............................34
Section 5.6. Persons Deemed Securityholders.........................35
Section 5.7. Access to List of Securityholders, Names and
Addresses...........................................35
Section 5.8. Maintenance of Office or Agency........................35
Section 5.9. Appointment of Paying Agent............................35
Section 5.10. Ownership of Common Securities by Depositor............36
Section 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate.......................37
Section 5.12. Notices to Clearing Agency.............................38
Section 5.13. Definitive Preferred Securities Certificates...........38
Section 5.14. Rights of Securityholders..............................39
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights...........................42
Section 6.2. Notice of Meetings.....................................44
Section 6.3. Meetings of Preferred Securityholders..................44
Section 6.4. Voting Rights..........................................44
Section 6.5. Proxies, etc...........................................45
Section 6.6. Securityholder Action by Written Consent...............45
Section 6.7. Record Date for Voting and Other Purposes..............45
Section 6.8. Acts of Securityholders................................46
Section 6.9. Inspection of Records..................................47
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Bank, the
Property Trustee and the Delaware Trustee...........48
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Page
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Section 7.2. Representations and Warranties of Depositor............50
ARTICLE VIII
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities....................50
Section 8.2. Certain Notices........................................52
Section 8.3. Certain Rights of Property Trustee.....................52
Section 8.4. Not Responsible for Recitals or Issuance of
Securities..........................................55
Section 8.5. May Hold Securities....................................56
Section 8.6. Compensation; Indemnity; Fees..........................56
Section 8.7. Corporate Property Trustee Required;
Eligibility of Trustees.............................57
Section 8.8. Conflicting Interests..................................58
Section 8.9. Co-Trustees and Separate Trustee.......................58
Section 8.10. Resignation and Removal; Appointment of
Successor...........................................60
Section 8.11. Acceptance of Appointment by Successor.................62
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business.........................................63
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust..................................64
Section 8.14. Reports by Property Trustee............................65
Section 8.15. Reports to the Property Trustee........................65
Section 8.16. Evidence of Compliance with Conditions
Precedent...........................................66
Section 8.17. Number of Trustees.....................................66
Section 8.18. Delegation of Power....................................67
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Termination Upon Expiration Date.......................67
Section 9.2. Early Termination......................................67
Section 9.3. Termination............................................68
Section 9.4. Liquidation............................................68
Section 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust...........................70
ARTICLE X
MISCELLANEOUS PROVISIONS; REMARKETING
Section 10.1. Limitation of Rights of Securityholders................72
Section 10.2. Amendment..............................................72
Section 10.3. Separability...........................................74
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Section 10.4. Governing Law..........................................74
Section 10.5. Payments Due on Non-Business Day.......................74
Section 10.6. Successors.............................................74
Section 10.7. Headings...............................................74
Section 10.8. Reports, Notices and Demands...........................74
Section 10.9. Agreement Not to Petition..............................75
Section 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act.......................................76
Section 10.11. Remarketing............................................76
Section 10.12. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.............................79
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ATLAS AIR CAPITAL III
Certain Sections of this Trust Agreement Relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust
Trust Indenture Agreement
Act Section Section
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310 (a)(1)......................................... 8.7
(a)(2)......................................... 8.7
(a)(3)......................................... 8.9
(a)(4)......................................... 2.7(a)(ii)
(b)............................................ 8.8
311 (a)............................................ 8.13
(b)............................................ 8.13
312 (a)............................................ 5.7
(b)............................................ 5.7
(c)............................................ 5.7
313 (a)............................................ 8.14(a)
(a)(4)......................................... 8.14(b)
(b)............................................ 8.14(b)
(c)............................................ 10.8
(d)............................................ 8.14(c)
314 (a) . ......................................... 8.15
(b)............................................ Not Applicable
(c)(1)......................................... 8.16
(c)(2)......................................... 8.16
(c)(3)......................................... Not Applicable
(d)............................................ Not Applicable
(e)............................................ 1.1, 8.16
315 (a)............................................ 8.1(a), 8.3(a)
(b)............................................ 8.2, 10.8
(c)............................................ 8.1(a)
(d)............................................ 8.1, 8.3
(e)............................................ Not Applicable
316 (a)............................................ Not Applicable
(a)(1)(A)...................................... Not Applicable
(a)(1)(B)...................................... Not Applicable
(a)(2)......................................... Not Applicable
(b)............................................ 5.14
(c)............................................ 6.7
317 (a)(1)......................................... Not Applicable
(a)(2)......................................... Not Applicable
(b)............................................ 5.9
318 (a)............................................ 10.10
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Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
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Amended and Restated Trust Agreement, dated as of __________, 1999,
among (i) Atlas Air, Inc., a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) The First National Bank of Chicago, a national
banking association duly organized and existing under the laws of the United
States, as property trustee (in such capacity, the "Property Trustee" and,
in its separate corporate capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) First Chicago Delaware Inc., a Delaware corporation, as
Delaware trustee (the "Delaware Trustee"), (iv) ___, an individual, ___, an
individual and ______________, an individual, each of whose address is c/o
Atlas Air, Inc., 538 Commons Drive, Golden, Colorado 80401 (each an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
W I T N E S S E T H :
WHEREAS, the Depositor and the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into that certain Trust Agreement, dated as of April
22, 1999 (the "Original Trust Agreement"), and by the execution and filing by
the Trustees with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on April 23, 1999, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the Acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debt
Securities and (iv) the appointment of the Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, each party, for the benefit of the other
parties and for the benefit of the Securityholders, hereby amends and restates
the Original Trust Agreement in its entirety and agrees as follows:
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ARTICLE I
DEFINED TERMS
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Debt Securities for such period.
"Additional Sums" has the meaning specified in Section ______
of the Indenture.
"Administrative Trustee" means each of , and , solely in such
Person's capacity as Administrative Trustee of the Trust formed and continued
hereunder and not in such Person's individual capacity, or such Administrative
Trustee's successor in interest in such capacity, or any successor trustee
appointed as herein provided.
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"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Atlas" means Atlas Air, Inc., a Delaware corporation.
"Authorized Newspaper" means a daily newspaper, in the English
language, customarily published on each day that is a Business Day in The City
of New York, whether or not published on days that are legal holidays, and of
general circulation in The City of New York. The Authorized Newspaper for the
purposes of the Reset Announcement Date is currently anticipated to be The Wall
Street Journal.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or the consent by it to the filing of any such petition
or to the appointment of a
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receiver, liquidator, assignee, trustee, sequestrator (or similar
official) of such Person or of any substantial part of its property, or
the making by it of an Assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a bankrupt, or the
taking of corporate action by such Person in furtherance of any such
action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Company to which authority to act on behalf of the
Board of Directors has been delegated, and to be in full force and effect on the
date of such certification, and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b)
a day on which banking institutions in the cities of New York, Chicago and
Denver are authorized or required by law or executive order to remain closed, or
(c) a day on which the Property Trustee's Corporate Trust Office or the
Corporate Trust Office of the Indenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from
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time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"Closing Date" means the First Time of Delivery, which date is also
the date of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the Property
Trustee located in Chicago, Illinois or principal office of any successor
Property Trustee.
"Coupon Rate" has the meaning specified in Section 4.1(b).
"Debt Securities" means the aggregate principal amount of the
Depositor's Debt Securities issued pursuant to the Indenture.
"Debt Securities Issuer" means Atlas Air, Inc., a Delaware
corporation.
"Debt Securities Repayment Price" means, with respect to any Debt
Securities put to the Depositor on ___, ___, an amount per Debt Security equal
to $ , plus accrued and unpaid interest (including deferred interest, if any).
"Definitive Preferred Securities Certificates" means either or both
(as the context requires) of (a) Preferred Secu-
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rities Certificates issued as Book-Entry Preferred Securities Certificates as
provided in Section 5.11(a) and (b) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Direct Action" has the meaning specified in Section 5.14(c).
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Event of Default" means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of an Indenture Event of Default; or
(b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Trus-
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tees in this Trust Agreement (other than a covenant or warranty a default
in the performance or breach of which is dealt with in clause (b) or (c)
above and continuation of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the
defaulting Trustee or Trustees by the Holders of at least 25% in aggregate
liquidation preference of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 60 days thereof.
"Exchange Agent" means the Person acting as Property Trustee.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Failed Remarketing" has the meaning specified in Section
5.4(b) of the Purchase Contract Agreement.
"First Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and The First National Bank of Chicago, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Preferred Securities, as amended from time to
time.
"Indenture" means the Debt Securities Indenture, dated as of April
___, 1999, between the Depositor and the Indenture Trustee, as trustee, as
amended or supplemented from time to time.
"Indenture Event of Default" means an "Event of Default" as
defined in the Indenture.
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"Indenture Redemption Date" means, with respect to any Debt
Securities to be redeemed under the Indenture, the date fixed for redemption
under the Indenture.
"Indenture Trustee" means The First National Bank of Chicago, a
national banking association and any successor thereto.
"Investment Company Event" means the receipt by the Trust of an
Opinion of Counsel, rendered by a law firm having a recognized national tax and
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), to the effect that the Trust is or will
be considered an "investment company" that is required to be registered under
the 1940 Act, which Change in 1940 Act Law becomes effective on or after the
date of original issuance of the Preferred Securities under this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed
of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debt Securities to be contemporaneously redeemed in accordance with
the Indenture, the proceeds of which will be used to pay the Redemption Price of
such Trust Securities, and (b) with respect to a distribution of Debt Securities
to Holders of Trust Securities in connection with a dissolution or liquidation
of the Trust, Debt Securities having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Debt Securities are
distributed.
"Liquidation Amount" means the stated amount of $ per
Trust Security.
"Liquidation Date" means the date on which Debt Securities are to be
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Trust pursuant to Section 9.4(a).
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"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"Ministerial Action" means the taking of an action, such as filing a
form or making an election, or pursuing some other similar reasonable measure
that will have no adverse affect on the Trust, the Depositor, the Trustees or
the Holders of the Securities and will involve no material cost.
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Officers' Certificate" means a certificate signed by the Chairman
and Chief Executive officer, President or a Vice President, and by the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee.
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"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
executed and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore cancelled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred Securities;
provided that, if such Preferred Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or
in lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Depositor, one or more of
the Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency
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Participant is not the Owner, then as reflected in the records of a Person
maintaining an account with such Clearing Agency (directly or indirectly, in
accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debt Securities will be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Sections 4.1 and
4.2.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Pledge Agreement" means the Pledge Agreement dated as of , 1999
among the Depositor, , as collateral agent (the "Collateral Agent") and
custodial agent (the "Custodial Agent") and securities intermediary (the
"Securities Intermediary") and The First National Bank of Chicago as purchase
contract agent (the "Purchase Contract Agent").
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
E.
"Primary Treasury Dealer" means a primary U.S. government
securities dealer in The City of New York.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in
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such capacity, or any successor property trustee appointed as herein provided.
"Purchase Contract Agreement" means the Purchase Contract Agreement
dated as of , 1999 between The First National Bank of Chicago, as Purchase
Contract Agent, and the Depositor.
"Purchase Contract Settlement Date" means , .
"Put Option" has the meaning specified in Section 4.8.
"Put Option Exercise Date" has the meaning in Section 4.8.
"Put Option Repayment Price" has the meaning in Section 4.8.
"Quotation Agent" means (i) and its respective
successors, provided, however, that if the foregoing shall cease to be a Primary
Treasury Dealer, the Depositor shall substitute therefor another Primary
Treasury Dealer or (ii) any other Primary Treasury Dealer selected by the
Depositor.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Indenture Redemption Date and the stated maturity
of the Debt Securities shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debt Securities, allocated on a pro rata basis (based on Liquidation Amounts)
among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Remarketing Agent" means , or such other
persons who shall be the remarketing agent under the Remarketing Agreement.
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"Remarketing Agreement" means the Remarketing Agreement among the
Debt Securities Issuer, the Trust, The First National Bank of Chicago, as
Purchase Contract Agent, and the Remarketing Agent.
"Remarketing Date" shall mean the third Business Day
immediately preceding the Purchase Contract Settlement Date.
"Reset Agent" means ,a nationally recognized investment
banking firm chosen by the Depositor to determine the Reset Rate.
"Reset Announcement Date" means the tenth Business Day
immediately preceding the Purchase Contract Settlement Date.
"Reset Rate" means the distribution rate per annum (to be determined
by the Reset Agent), equal to the sum of (X) the Reset Spread and (Y) the rate
of interest on the Two-Year Benchmark Treasury in effect on the third Business
Day immediately preceding the Purchase Contract Settlement Date that the
Preferred Securities should bear in order for the Preferred Securities to have
an approximate market value of ___% of their aggregate stated liquidation amount
on the third Business Day immediately preceding the Purchase Contract Settlement
Date; provided, that the Depositor may limit such Reset Spread to be no higher
than ___ basis points (___%) and the Depositor shall limit the Reset Rate, if
applicable, to the maximum rate permitted by applicable law.
"Reset Spread" means a spread amount to be determined by the Reset
Agent on the tenth Business Day immediately preceding the Purchase Contract
Settlement Date.
"Second Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be a beneficial owner within the meaning of the Delaware Business
Trust Act; provided, however, that in determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter provided for
in this Trust Agreement, then
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for the purpose of any such determination, so long as Definitive Preferred
Securities Certificates have not been issued, the term Securityholders or
Holders as used herein shall refer to the Owners.
"Successor Securities" shall have the meaning specified in
Section 9.5.
"Supplemental Remarketing Agreement" means the agreement to be dated
as of the third Business Day immediately preceding the Purchase Contract
Settlement Date among Atlas, the Trust (if applicable), The First National Bank
of Chicago, and the Remarketing Agent.
"Termination Event" has the meaning set forth in Section 1.1
of the Purchase Contract Agreement.
"Time of Delivery" means, collectively, the First Time of Delivery
and the Second Time of Delivery.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Treasury Securities" has the meaning set forth in Section 1.1
of the Purchase Contract Agreement.
"Trust" means the Delaware business trust created and continued
hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement,
as the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
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"Trust Property" means (a) the Debt Securities, (b) any cash on
deposit in, or owing to, the Payment Account and (c) all proceeds and rights in
respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to the trusts of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Two-Year Benchmark Treasury" means direct obligations of the United
States (which may be obligations traded on a when-issued basis only) having a
maturity comparable to the remaining term to maturity of the Trust Securities,
as agreed upon by the Depositor and the Reset Agent. The rate for the Two-Year
Benchmark Treasury will be the bid side rate displayed at 10:00 A.M., New York
City time, on the third Business Day immediately preceding the Purchase Contract
Settlement Date in the Telerate system (or if the Telerate system is (a) no
longer available on the third Business Day immediately preceding the Purchase
Contract Settlement Date or (b) in the opinion of the Reset Agent (after
consultation with the Depositor) no longer an appropriate system from which to
obtain such rate, such other nationally recognized quotation system as, in the
opinion of the Reset Agent (after consultation with the Depositor) is
appropriate). If such rate is not so displayed, the rate for the Two-Year
Benchmark Treasury shall be, as calculated by the Reset Agent, the yield to
maturity for the Two-Year Benchmark Treasury, expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis, and computed by taking the arithmetic mean of the secondary market bid
rates, as of 10:30 A.M., New York City time, on the third Business Day
immediately preceding the Purchase Contract Settlement Date of three leading
United States government securities dealers selected by the Reset Agent (after
consultation with the Depositor) which may include the Reset Agent or an
Affiliate thereof.
"Underwriting Agreement" means the Pricing Agreement, dated as of
________, 1999, among the Trust, the Depositor and
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the underwriters named therein incorporating the Underwriting Agreement dated
__________, 1999.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1. Name.
The Trust continued hereby shall be known as "Atlas Air Capital
III," as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
other Trustees, in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is c/o
FCC National Bank, 300 King Street, Wilmington, Delaware 19801, Attention:
Corporate Trust Administration, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Securityholders
and the Depositor. The principal executive office of the Trust is c/o Atlas Air,
Inc., 538 Commons Drive, Golden, Colorado 80401.
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.4. Issuance of the Preferred Securities.
On _________, 1999 the Depositor, on behalf of the Trust and
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously
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with the execution and delivery of this Trust Agreement, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Sections 5.2
and 5.3 and deliver to the Underwriters named in the Underwriting Agreement
Preferred Securities Certificates, registered in the name of the nominee of the
initial Clearing Agency, in an aggregate amount of Preferred Securities having
an aggregate Liquidation Amount of $__________, against receipt of such
aggregate purchase price of such Preferred Securities of $_________, which
amount the Administrative Trustee shall promptly deliver to the Property
Trustee. If there is a Second Time of Delivery, an Administrative Trustee, on
behalf of the Trust, shall execute in accordance with Sections 5.2 and 5.3 and
deliver to the Underwriters named in the Underwriting Agreement Preferred
Securities Certificates, registered in the name of the nominee of the initial
Clearing Agency, in an aggregate amount of up to Preferred Securities having an
aggregate Liquidation Amount of up to $________, against receipt of such
aggregate purchase price of such Preferred Securities of $__________, which
amount such Administrative Trustees shall promptly deliver to the Property
Trustee, on the date specified pursuant to the Underwriting Agreement.
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of
Debt Securities.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Sections 5.2 and 5.3 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of Common Securities having an aggregate Liquidation Amount of
$__________ against payment by the Depositor of such amount. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe to
and purchase from the Depositor Debt Securities, registered in the name of the
Trust and having an aggregate principal amount equal to $__________, and, in
satisfaction of the purchase price for such Debt Securities, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$____________. If there is a Second Time of Delivery, an Administrative Trustee,
on behalf of the Trust, shall execute in accordance with Sections 5.2 and 5.3
and deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of up to Common Securities having
an aggregate Liquidation Amount of up to $_________ against payment by the
Depositor of such amount. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Debt Securities, registered in the name of
<PAGE> 24
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the Trust and having an aggregate principal amount of up to $__________, and, in
satisfaction of the purchase price for such Debt Securities, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the amount
received from one of the Administrative Trustees pursuant to the last sentence
of Section 2.4.
Section 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Debt Securities, and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Trust with respect to the
following matters:
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(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function
of the Trust;
(C) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents
pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debt
Securities to the Securityholders in accordance with this Trust
Agreement;
(F) the appointment of a Paying Agent, authenticating agent
and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance
with this Trust Agreement;
(H) to the extent provided in this Trust Agreement the winding
up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees, or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to
execute on behalf of the Trust (either acting alone or together with
any or all of the Administrative Trus-
<PAGE> 26
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tees) any documents that the Administrative Trustees have the power
to execute pursuant to this Trust Agreement;
(J) the entering into of a Debt Security purchase agreement
and Common Securities purchase agreement with the Depositor;
(K) the giving to the Depositor and the Property Trustee
prompt written notice of the occurrence of an Investment Company
Event; provided that the Administrative Trustees shall consult with
the Depositor before taking any Ministerial Action in relation to an
Investment Company Event; and
(L) the taking of any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement for
the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to
the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debt Securities;
(C) the collection of interest, principal and any other
payments made in respect of the Debt Securities in the Payment
Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Debt Securities;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debt Securities to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
<PAGE> 27
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(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Trust Agreement and protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder);
(J) the engagement in such Ministerial Action as shall be
necessary, appropriate, convenient or incidental to effect repayment
of the Preferred Securities and the Common Securities to the extent
the Debt Securities mature or are redeemed or the Put Option is
exercised; and
(K) except as otherwise provided in this Section 2.7(a)(ii),
the Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth in
Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interest therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for United States Federal
income tax purposes, (iv) incur any indebtedness for borrowed money or issue any
other debt or (v) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property. The Administrative Trustees
shall defend all claims and demands of all Persons at any time claiming any Lien
on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
<PAGE> 28
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(c) In connection with the issue and sale of the Preferred
Securities, and, if necessary, the remarketing of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Preferred Securities, including any
amendments thereto;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice
to the Trustees of actions they must take on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of any
such States;
(iii) the preparation for filing by the Trust and execution on behalf
of the Trust of an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form
8-A relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of the Remarketing Agreement, the
Supplemental Remarketing Agreement and theUnderwriting Agreement providing
for the sale of the Preferred
Securities;
(vi) the execution and entering into of the Underwriting Agreement,
the Remarketing Agreement, the Debt Securities purchase agreement and
Common Securities purchase
<PAGE> 29
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agreement and, if applicable, the Supplemental Remarketing
Agreement; and
(vii) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
of 1940, as amended, or taxed as a corporation for United States Federal income
tax purposes and so that the Debt Securities will be treated as indebtedness of
the Depositor for United States Federal income tax purposes. In this connection,
the Depositor and the Administrative Trustees are authorized to take any action,
not inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and the Administrative Trustees determines
in their discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the holders of the Preferred Securities.
Section 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in
the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust and the
Securityholders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclu-
<PAGE> 30
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sive control and sole right of withdrawal with respect to the Payment Account
for the purpose of making deposits in and withdrawals from the Payment Account
in accordance with this Trust Agreement. All monies and other property deposited
or held from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the Securityholders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debt Securities. Amounts held in
the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION; REPAYMENT
Section 4.1. Distributions.
(a) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for the
payment of Distributions. Distributions shall accrue from ____________,
_________, and, except in the event that the Depositor exercises its right to
defer the payment of interest on the Debt Securities pursuant to the Indenture,
shall be payable quarterly in arrears on __________, ______, _________ and
___________ of each year, commencing on ______________, 1999. If any date on
which a Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date (each date on which distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property, and, as a practical matter, the Distributions on the Trust
Securities shall be payable
<PAGE> 31
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at a rate of ___% per annum (the "Coupon Rate") of the Liquidation Amount of the
Trust Securities through and including , and at the Reset Rate thereafter, such
rates being the rates of interest payable on the Debt Securities to be held by
the property Trustee. Distributions in arrears for more than one quarter will
accumulate and compound quarterly at the rate per annum of % through and
including , and at the Reset Rate thereafter (to the extent permitted by
applicable law). Distributions that are deferred will continue to accumulate at
a rate per annum of % through and including , and at the Reset Rate thereafter,
compounded quarterly through the deferral period to the extent permitted by
applicable law. The amount of Distributions payable for any full period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months. The amount of
Distributions payable for any period shall include the Additional Amounts, if
any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to such Distribution Date; provided, however,
that in the event that the Preferred Securities do not remain in book-entry-only
form, the relevant record date shall be the date 15 days prior to the relevant
Distribution Date.
(e) The Coupon Rate on the Trust Securities (as well as the interest
rate on the Debt Securities) will be reset on the third Business Day immediately
preceding the Purchase Contract Settlement Date to the Reset Rate (which Reset
Rate will be in effect on and after the Purchase Contract Settlement Date). On
the Reset Announcement Date, the Reset Spread and the Two-Year Benchmark
Treasury to be used to determine the Reset Rate will be announced by the
Depositor. On the Business Day immediately following the Reset Announcement
Date, the Holders of Trust Securities will be notified of such Reset Spread and
Two-Year Benchmark Treasury by the Depositor. Such notice shall be sufficiently
given to Holders of Securities if published in an Authorized Newspaper.
<PAGE> 32
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(f) Not later than seven calendar days nor more than 15 calendar
days prior to the Reset Announcement Date, the Depositor will request DTC or its
nominee (or any successor Clearing Agency or its nominee) to notify the Owners
of Preferred Securities and Clearing Agency Participants holding Preferred
Securities of such Reset Announcement Date.
Section 4.2. Redemption.
(a) On each Indenture Redemption Date and on the stated maturity of
the Debt Securities, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debt Securities. Redemptions of the Trust Securities shall be made
and the Redemption Price shall be payable on each Redemption Date only to the
extent that the Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Preferred Securities, then, by 12:00
<PAGE> 33
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noon, New York City time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee will, so long as the Preferred Securities are in
book-entry-only form, irrevocably deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption Price and
will give such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the holders thereof. If the Preferred Securities are no
longer in book-entry-only form, the Property Trustee, subject to Section 4.2(c),
will irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof
upon surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Securityholders holding Trust Securities so
called for redemption will cease, except the right of such Securityholders to
receive the Redemption Price and any Distribution payable on or prior to the
Redemption Date, but without interest, and such Securities will cease to be
outstanding. In the event that any date on which any Redemption Price is payable
is not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made on such date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue, at
the then applicable rate, from the Redemption Date originally established by the
Trust or such Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the record holders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date, which shall be one Business
Day prior
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to the relevant Redemption Date; provided, however, that in the event that the
Preferred Securities do not remain in book-entry-only form, the relevant record
date shall be the date fifteen days prior to the relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $ or an integral multiple of $ in excess thereof) of
the Liquidation Amount of Preferred Securities of a denomination larger than
$ . The Property Trustee shall promptly notify the Security Registrar in
writing of the Preferred Securities selected for redemption and, in the case of
any Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities that has been or is to be redeemed.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 4.2(f), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from an Indenture Event of
Default shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or Redemption Price of, any
Common Security, and no other payment on account of the redemption, liquidation
or other acquisition of Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Preferred Securities for all
Distribution periods ter-
<PAGE> 35
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minating on or prior thereto, or in the case of payment of the Redemption Price
the full amount of such Redemption Price on all Outstanding Preferred
Securities, shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the payment in full
in cash of all Distributions (including Additional Amounts, if applicable) on,
or the Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Indenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not the Holder of the Common Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made by check mailed
to the address of the Person entitled thereto as such address shall appear on
the Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable distribution dates. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Common Securityholder.
Section 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense, and file all United States Federal, state and local
tax and information returns and reports required to be filed by or in respect of
the Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the appropriate Internal Revenue
Service Form required to be filed in respect of the Trust in each taxable year
of the Trust and (b)
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prepare and furnish (or cause to be prepared and furnished) to each
Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debt Securities of Additional Sums, the
Property Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
Section 4.7. Repayment at Option of Holders.
(a) If a Failed Remarketing (as described in Section 5.4(b) of the
Purchase Contract Agreement and incorporated herein by reference) has occurred,
each holder of Trust Securities who holds such Trust Securities on the day
immediately following the Purchase Contract Settlement Date, shall have the
right (the "Put Option") on the Business Day immediately following _____,
_____ to require the Trust to distribute their pro rata share of the Debt
Securities to the Exchange Agent and to require the Exchange Agent to put such
Debt Securities to the Debt Securities Issuer on behalf of such holders on
_____, _____, upon at least three Business Days' prior notice (the "Put Option
Exercise Date"), at a repayment price of $___, ___ per Trust Security plus an
amount equal to the accrued and unpaid Distributions (including deferred
distributions if any) thereon to the date of payment (the "Put Option Repayment
Price").
(b) The Exchange Agent shall obtain funds to pay the Put Option
Repayment Price of Trust Securities being repaid un-
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der the Put Option through presentation by it to the Debt Securities Issuer of
Debt Securities in an aggregate principal amount equal to the aggregate stated
liquidation amount of such Trust Securities for repayment on the Put Option
Exercise Date at the Put Option Repayment Price.
(c) In order for the Trust Securities to be repaid on the Put Option
Exercise Date, the Trust must receive on or prior to 4:00 p.m. on the third
Business Day immediately preceding the Put Option Exercise Date, at the
Corporate Trust Office or the New York Office of the Property Trustee (who will
in turn notify the Exchange Agent), the Trust Securities to be repaid with the
form entitled "Option to Elect Repayment" on the reverse thereof or otherwise
accompanying such Trust Security duly completed. Any such notice received by the
Trust shall be irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of the Trust Securities for repayment
shall be determined by the Trust, whose determination shall be final and
binding.
(d) Payment of the Put Option Repayment Price to Holders of Trust
Securities shall be made at the Corporate Trust Office of the Exchange Agent,
provided that the Debt Securities Issuer has paid the Exchange Agent a
sufficient amount of cash in connection with the related repayment of the Debt
Securities no later than 1:00 p.m., New York City time, on the Put Option
Exercise Date by check or wire transfer in immediately available funds at such
place and to such account as may be designated by such Holders. If the Exchange
Agent holds immediately available funds sufficient to pay the Put Option
Repayment Price of such Trust Securities, then, immediately prior to the close
of business on the Put Option Exercise Date, such Trust Securities will cease to
be outstanding and Distributions thereon will cease to accrue, whether or not
Trust Securities are delivered to the Property Trustee, and all other rights of
the Holder in respect of such Trust Securities, including the Holder's right to
require the Trust to repay such Trust Securities, shall terminate and lapse
(other than the right to receive the Put Option Repayment Price but without
interest on such Put Option Repayment Price). Neither the Administrative
Trustees nor the Trust shall be required to register or cause to be registered
the transfer of any Trust Securities for which repayment has been elected. If
payment of the Put Option Repayment Price in respect of Trust Securities is (i)
improperly withheld or refused and not paid either by the Exchange Agent or by
the Depositor as guarantor pursuant to the Guarantee, or (ii) not paid by the
Exchange Agent as the result of an Event of Default with respect to the Debt
Securities presented for
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repayment as described in Section 4.8(b), Distributions on such Trust Securities
will continue to accrue from and including the original Put Option Exercise Date
to the actual date of payment, in which case the actual payment date will be
considered the Put Option Exercise Date for purposes of calculating the Put
Option Repayment Price.
(e) The Debt Securities Issuer will request, not later than seven
nor more than 15 calendar days prior to _____, _____ (the date on which some or
all of the Preferred Securities could be remarketed in the manner described in
Section 5.4(b) of the Purchase Contract Agreement and incorporated herein by
reference) that the Clearing Agency notify the Owners of Preferred Securities of
such remarketing and of the procedures that must be followed if an Owner of
Preferred Securities wishes to exercise such holder's rights with respect to the
Put Option.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.
Upon the formation of the Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Trust.
Section 5.2. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $ Liquidation Amount and integral multiples of $ in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $ Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by manual
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
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Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11
and 5.13.
Section 5.3. Execution and Delivery of Trust Securities Certificates.
At each Time of Delivery, the Administrative Trustees shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
Section 5.4. Registration of Transfer and Exchange of Preferred Securities
Certificates.
The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8. a register or registers for the
purpose of registering Trust Securities Certificates and transfers and exchanges
of Preferred Securities Certificates (the "Securities Register") in which, the
registrar designated by the Depositor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees.
The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have
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been called for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange shall be cancelled and subsequently disposed of by an
Administrative Trustee in accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute con-
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clusive evidence of an undivided beneficial interest in the assets of the Trust,
as if originally issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
Section 5.6. Persons Deemed Securityholders.
The Administrative Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving distributions and for all other purposes whatsoever,
and neither the Trustees nor the Securities Registrar shall be bound by any
notice to the contrary.
Section 5.7. Access to List of Securityholders, Names and Addresses.
Securityholders and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 5.8. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be served.
The Administrative Trustees initially designate Atlas Air, Inc., 538 Commons
Drive, Golden, Colorado 80401, as its principal corporate trust office for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
Section 5.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to Securityholders from
the Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that
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the Paying Agent shall have failed to perform its obligations under this Trust
Agreement in any material respect. The Paying Agent shall initially be the Bank,
and any co-paying agent chosen by the Bank, and acceptable to the Administrative
Trustees and the Depositor. Any Person acting as Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Administrative
Trustees, the Property Trustee and the Depositor. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall
apply to the Bank also in its role as Paying Agent, for so long as the Bank
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
Section 5.10. Ownership of Common Securities by Depositor.
At each Time of Delivery, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the fullest extent
permitted by law, other than a transfer in connection with a consolidation or
merger of the Depositor into another corporation, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section ____ of the Indenture, any attempted transfer
of the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN AS SET FORTH IN THE
TRUST AGREEMENT (AS DEFINED BELOW)."
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Section 5.11. Book-Entry Preferred Securities Certificates; Common Securities
Certificate.
(a) The Preferred Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency by, or on
behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
Definitive Preferred Securities Certificate representing such owner's interest
in such Preferred Securities, except as provided in Section 5.13. Unless and
until Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust Agreement
relating to the Book-Entry Preferred Securities Certificates (including
the payment of the Liquidation Amount of and Distributions on the
Book-Entry Preferred Securities and the giving of instructions or
directions to Owners of Book-Entry Preferred Securities) as the sole
Holder of Book-Entry Preferred Securities and shall have no obligations to
the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11 conflict
with any other provisions of this Trust Agreement, the provisions of this
Section 5.11 shall control; and
(iv) the rights of the owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Certificate Depository Agreement, unless and until Definitive
Preferred Securities Certificates are issued pursuant to Section 5.13, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit pay-
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ments on the Preferred Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13. Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Securities Certificates, and the
Depositor is unable to locate a qualified successor, (b) the Depositor at its
option advises the Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence of an
Indenture Event of Default, Owners of Preferred Securities Certificates
representing beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Administrative Trustees in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Owners of Preferred Securities Certificates, then the
Administrative Trustee shall notify the Clearing Agency and the Clearing Agency
shall notify all Owners of Preferred Securities Certificates and the other
Trustees of the occurrence of any such event and of the availability of the
Definitive Preferred Securities Certificates to Owners of such class or classes,
as applicable, requesting the same. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or Certificates
representing the Book Entry Preferred Securities Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative Trustees,
or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. Neither
the Securities Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively
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rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
Section 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with Section 2.9,
and the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon an Indenture Event of Default, the Indenture Trustee fails or the holders
of not less than 25% in principal amount of the outstanding Debt Securities fail
to declare the principal of all of the Debt Securities to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in writing to the
Depositor and the Indenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debt Securities shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
the Debt Securities has been made and before a judgment or decree for payment of
the money due has been obtained by the Indenture Trustee as in the Indenture
provided, the Holders of a majority in Liquidation Amount of the Pre-
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ferred Securities, by written notice to the Property Trustee, the Depositor and
the Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Indenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of the
Debt Securities,
(B) the principal of (and premium, if any, on) any Debt
Securities which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the Debt
Securities, and
(C) all sums paid or advanced by the Indenture Trustee under
the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and the Property
Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debt Securities,
other than the non-payment of the principal of the Debt Securities which
has become due solely by such acceleration, have been cured or waived as
provided in Section _____ of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Indenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Debt Security. No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of the
Preferred Securities all or part of which is represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of
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business on the day the Property Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided that, unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.14(c).
(c) For so long as any Preferred Securities remain Outstanding, to
the fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Indenture, upon an Indenture Event of Default specified in
Section ______ or ______ of the Indenture, any Holder of Preferred Securities
shall have the right to institute a proceeding directly against the Depositor,
pursuant to Section ___ of the Indenture, for enforcement of payment to such
Holder of the principal amount of or interest on Debt Securities having a
principal amount equal to the Liquidation Amount of the Preferred Securities of
such Holder (a "Direct Action"). In connection with any such Direct Action, the
Holders of the Common Securities will be subrogated to the rights of any Holder
of the Preferred Securities to the extent of any payment made by the Depositor
to such Holder of Preferred Securities as a result of such Direct Action. Except
as set forth in Section 5.14(b) and (c), the Holders of Preferred Securities
shall have no right to exercise directly any right or remedy available to the
holders of, or in respect of, the Debt Securities.
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ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and
10.2 and in the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) So long as any Debt Securities are held by the Property Trustee,
the Property Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Debt Securities, (ii) waive any past default which is waivable under
Section _____ of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debt Securities shall be due and
payable or (iv) consent to an amendment, modification or termination of the
Indenture or the Debt Securities, where such consent shall be required, without,
in each case, obtaining the prior approval of the Holders of at least a majority
in Liquidation Amount of all Outstanding Preferred Securities, provided,
however, that where a consent under the Indenture would require the consent of
the Holders of more than a majority of the aggregate principal amount of Debt
Securities affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of at least the same proportion in
Liquidation Amount of Preferred Securities. The Trustees shall not revoke any
action previously authorized or approved by a vote of the Holders of Preferred
Securities, except by a subsequent vote of the Holders of Preferred Securities.
The Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Indenture Trustee with respect to the Debt
Securities. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be classified
as
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an association taxable as a corporation for United States Federal income tax
purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Trust Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Trust Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least 66 2/3% in Liquidation
Amount of the Outstanding Trust Securities; provided, however, that if an
amendment affects only the powers, preferences or special rights of Preferred
Securities or Common Securities, then such 66 2/3% approval is required only
from the affected class. Notwithstanding any other provision of this Trust
Agreement, no amendment to this Trust Agreement may be made if, as a result of
such amendment, the Trust would cause the Trust to fail or cause to be
classified as a grantor trust for United States Federal income tax purposes.
(d) In the event the consent of the Property Trustee as holder of
the Debt Securities is required under the Indenture with respect to any
amendment or modification of the Indenture, the Property Trustee shall request
the direction of the Holders of the Trust Securities with respect to such
amendment or modification and shall vote with respect to such amendment or
modification as directed by the Holders of a majority in Liquidation Amount of
the Trust Securities voting together as a single class; provided, however that
where a consent under the Indenture would require the consent of more than a
majority of the aggregate principal amount of Debt Securities, the Property
Trustee may only give such consent at the direction of the Holders of at least
the same proportion in an aggregate Liquidation Amount of the Trust Securities;
provided further, that the Property Trustee shall not take any action in
accordance with the directions of the Holders of Trust Securities under this
Section 6.1(d) unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that the Trust will not be classified as
other than a grantor trust for United States federal income tax purposes as a
result of such action and that each Holder of Trust Securities will be treated
as owning an undivided beneficial ownership interest in the corresponding Debt
Securities.
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Section 6.2. Notice of Meetings.
The Administrative Trustees will direct the Property Trustee to
cause a notice of all meetings of the Preferred Securityholders to be given
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. Each such notice will include a statement setting forth (i) the date,
time and place of such meeting, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote, and
(iii) instructions for the delivery of proxies. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
Section 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% of the Preferred Securities (based upon their Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at anytime in their
discretion, call a meeting of Preferred Securityholders to vote on any matters
as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the outstanding
Preferred Securities (based upon their Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based upon their Liquidation
Amount) held by the Preferred Securityholders of record present, either in
person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
Section 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $ of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote. Notwithstanding the preceding
sentence, any Pre-
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ferred Securities that are owned by the Depositor, the Trustees or any Affiliate
of the Depositor or any Trustee, will not be entitled to vote and will, for
purposes of voting, be treated as if such Preferred Securities were not
outstanding; provided, however, that the foregoing limitation on voting shall
not apply if all of the Outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any Affiliate of the Depositor or
any Trustee.
Section 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to
vote thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the Administrative
Trustees may direct, for verification prior to the time at which such vote shall
be taken. Pursuant to a resolution of the Property Trustee, proxies may be
solicited in the name of the Property Trustee or one or more officers of the
Property Trustee. Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several persons, any one of them may vote
at any meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
Section 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting and without notice if Securityholders holding more than
a majority of all Outstanding Trust Securities (based upon their Liquidation
Amount) entitled to vote in respect of such action (or such larger proportion
thereof as shall be required by any express provision of this Trust Agreement)
shall consent to the action in writing.
Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled
to notice of and to vote at any meeting or by written consent, or to participate
in any distribution on the
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Trust Securities in respect of which a record date is not otherwise provided for
in this Trust Agreement, or for the purpose of any other action, the
Administrative Trustees may from time to time fix a date, not more than 90 days
prior to the date of any meeting of Securityholders or the payment of a
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders or Owners may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders or Owners in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders or Owners signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.1) conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any
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Trust Security shall bind every future Securityholder of the same Trust Security
and the Securityholder of every Trust Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the Trust in
reliance thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Securityholder entitled hereunder
to take any action hereunder with regard to any particular Trust Security may do
so with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such liquidation
amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Bank, the Property Trustee
and the Delaware Trustee.
The Bank, Property Trustee and the Delaware Trustee, each severally
on behalf of and as to itself, hereby represents and warrants for the benefit of
the Depositor and the Securityholders that:
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly organized,
validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement and
satisfies for the Trust Section 3807 of the Delaware Business Trust Act;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes
the valid and legally binding agreement of each of the Property Trustee
and the Delaware Trustee enforceable against each of them in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(f) the execution, deliver and performance of this Trust Agreement
has been duly authorized by all necessary corporate or other action on the
part of the Property
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Trustee and the Delaware Trustee and does not require any approval of
stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or
By-laws of the Property Trustee or the Delaware Trustee, (ii) 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 indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Delaware Trustee is a
party or by which it is bound, or (iii) violate any law, governmental rule
or regulation of the United States or the State of Delaware, as the case
may be, governing the banking, trust or general powers of the Property
Trustee or the Delaware Trustee (as appropriate in context) or any order,
judgment or decree applicable to the Property Trustee or the Delaware
Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee (as appropriate in context) contemplated herein or
therein 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
governmental authority or agency under any existing Federal law governing
the banking, trust or general powers of the Property Trustee or the
Delaware Trustee, as the case may be, under the laws of the United States
or the State of Delaware;
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened
against or affecting the Property Trustee or the Delaware Trustee in any
court or before an governmental authority, agency or arbitration board or
tribunal which, individually or in the aggregate, would materially and
adversely affect the Trust or would question the right, power and
authority of the Property Trustee or the Delaware Trustee, as the case may
be, to enter into or perform its obligations as one of the Trustees under
this Trust Agreement.
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Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Time of
Delivery on behalf of the Trust have been duly authorized and will have
been, duly and validly executed, issued and delivered by the Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement and the Securityholders will be, as
of each such date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Trust (or the Trustees on behalf of the Trust) under the laws of
the State of Delaware or any political subdivision thereof in connection
with the execution, delivery and performance by the Property Trustee or
the Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release the Property
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful miscon-
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duct. To the extent that, at law or in equity, an Administrative Trustee has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to the Securityholders, such Administrative Trustee shall not be liable
to the Trust or to any Securityholder for such Trustee's good faith reliance on
the provisions of this Trust Agreement. The provisions of this Trust Agreement,
to the extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms thereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to an
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in Liquidation
Amount of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power con-
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ferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debt Securities and the
Payment Account shall be to deal with such Property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 3.1 and except to
the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor of their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
Section 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such Event of Default to the Securityholders, the Administrative Trustees and
the Depositor, unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Debt
Securities pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, notice of such
exercise to the Securityholders and the Property Trustee, unless such exercise
shall have been revoked.
Section 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
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(a) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution, opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (iii) the Property Trustee is unsure
of the application of any provision of this Trust Agreement, then, except
as to any matter as to which the Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken and the Property Trustee
shall take such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Depositor; provided, however, that if the Property
Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but shall
be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and in
the best interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith, negligence
or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee
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(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
re-recording, refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel (which counsel may
be counsel to the Depositor or any of its Affiliates, and may include any
of its employees) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon
and in accordance with such advice, such counsel may be counsel to the
Depositor or any of its Affiliates, and may include any of its employees;
the Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court of
competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Securityholders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, provided that the Property Trustee shall be
responsible
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for its own negligence or recklessness with respect to selection of any
agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be protected
in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debt Securities.
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Section 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or
agent of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates, (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to
be within the scope of authority conferred on such Indemnified Person by
this Trust Agreement, except that no Indemnified Person shall be entitled
to be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with
respect to such acts or omissions; and
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(d) to the fullest extent permitted by applicable law, to advance
expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time
to time, prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Depositor of (i) a written
affirmation by or on behalf of the Indemnified Person of its or his good
faith belief that it or he has met the standard of conduct set forth in
this Section 8.6 and (ii) an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in the
preceding subsection.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee may engage in or possess an interest
in other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depository for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Depositor or its Affiliates.
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property
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Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Property Trustee
with respect to the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or (ii)
a legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
Section 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
Section 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
anytime or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any Jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Adminis-
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trative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee jointly with the
Property Trustee, of al1 or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case an Indenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified
hereunder, shall be exercised, solely by such Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or
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separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent that
under any law of any jurisdiction in which any particular act is to be
performed, the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or
separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case an Indenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Depositor. Upon the written request
of the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal.
A successor to any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any
other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of
a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee")
and no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the successor Trustee required by Section
8.11
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shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If an Indenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Indenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees, and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when an Indenture Event of
Default shall have occurred and be continuing, the Preferred Securityholders, by
Act of the Securityholders of a majority in Liquidation Amount of the Preferred
Securities then outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and such successor
Trustee shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when an Indenture Event of Default shall have
occurred and be continuing, the Common Securityholder by Act of the Common
Securityholder delivered to the Administrative Trustee shall promptly appoint a
successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Securityholder or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any Securityholder who has
been a Securityholder of Trust Securities for at least six months may, on behalf
of himself and all
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others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or Delaware Trustee, as the case may be, set forth
in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without an further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Depositor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and if the Property Trustee is the
resigning Trustee shall duly assign, transfer and deliver to the successor
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or de-
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sirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Trust and (b) shall add to
or change any of the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the Trust by more than one
Relevant Trustee, it being understood that nothing herein or in such amendment
shall constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Trust or any successor Relevant Trustee
such retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee or the Delaware
Trustee maybe merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant Trustee, shall
be the successor of such Relevant Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
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Section 8.13. Preferential Collection of Claims Against Depositor or Trust.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities (or, if
the Trust Securities are Discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Trust
Securities) and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Property Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the
event the Property Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Property Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel, and any other amounts due
the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
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Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 8.14. Reports by Property Trustee.
(a) Not later than May 15 of each year commencing with May 15, , the
Property Trustee shall transmit to all Securityholders in accordance with
Section 10.8, and to the Depositor, a brief report dated as of such December 31
with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of
its obligations under this Trust Agreement during the twelve-month period
(or, in the case of the initial report, the period since the Closing Date)
ending with such December 31 or, if the Property Trustee has not complied
in any material respect with such obligations, a description of such
noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects
the Trust Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq National Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities are
listed or traded, with the Commission and with the Depositor.
Section 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such
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documents, reports and information as required by Section 314 of the Trust
Indenture Act (if any) and the compliance certificate required by Section 314(a)
of the Trust Indenture Act in the form, in the manner an at the times required
by Section 314 of the Trust Indenture Act.
Section 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314 (c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be five, provided that the
Holder of all of the Common Securities by written instrument may increase
or decrease the number of Administrative Trustees. The Property Trustee
and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
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Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement, as set
forth herein.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on
December 31, 2054 (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 9.4.
Section 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Termination Event" upon which the Trust shall be deemed dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or
the dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor
at any time (which direction is optional and wholly within the discretion
of the Depositor) to dissolve the Trust and distribute Debt Securities to
Securityholders in exchange for the Preferred Securities;
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all the Debt Securities;
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(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction; and
(e) the occurrence and continuation of an Investment Company Event;
provided, however, that if there is an opportunity to eliminate the Investment
Company Event by taking some Ministerial Action within 90 days of the occurrence
of the Investment Company Event, the Administrative Trustees shall pursue such
Ministerial Action and such Investment Company Event shall not be deemed to be
an Early Termination Event hereunder.
Section 9.3. Termination.
The respective obligations and responsibilities of the Trustees and
the Trust created and continued hereby shall terminate upon the latest to occur
of the following: (a) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to Section 4.2, of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b), (d)
or (e) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Debt Securities with an interest rate equal to % if on or prior to , and
the Reset Rate thereafter and bearing accrued and unpaid interest in an amount
equal to the accrued and unpaid Distributions on such Trust Securities, subject
to Section 9.4(d). Notice of liquidation shall be given by the Property Trustee
by first-class mail, postage prepaid mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
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(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debt Securities; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debt Securities, or
if Section 9.4(d) applies receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debt Securities to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debt Securities in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
outstanding, (ii) certificates representing a Like Amount of Debt Securities
will be issued to holders of Trust Securities Certificates, upon surrender of
such certificates to the Administrative Trustees or their agent for exchange,
(iii) the Depositor shall use its reasonable efforts to have the Debt Securities
listed on the New York Stock Exchange or on such other exchange, interdealer
quotation system or self-regulatory organization as the Preferred Securities are
then listed, (iv) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debt Securities, accruing
interest at the rate provided for in the Debt Securities from the last
Distribution Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no patents of interest or principal will be
made to Holders of Trust Securities Certificates with respect to such Debt
Securities) and (v) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Debt Securities upon
surrender of Trust Securities Certificates.
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(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debt Securities in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated by the Property Trustee in
such manner as the Property Trustee determines. In such event Securityholders
will be entitled to receive out of the assets of the Trust available for
distribution to Securityholders, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"). If the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if an Indenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Trust.
The Trust may not merge with or into, consolidate, amalgamate,
convert into or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any person, except pursuant to this
Section 9.5 or Section 9.4. At the request of the Depositor, with the consent of
the Administrative Trustees and without the consent of the Holders of the
Preferred Securities, the Property Trustee or the Delaware Trustee, the Trust
may merge with or into, consolidate, amalgamate, convert into or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred
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Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Debt
Securities, (iii) the Successor Securities are listed or traded, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation, conversion, replacement, conveyance,
transfer or lease does not adversely affect the rights preferences and
privileges of the holders of the Preferred Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, conversion, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor Securities) in any
material respect, (b) following such merger, consolidation, amalgamation,
conversion, replacement, conveyance, transfer or lease, neither the Trust nor
such successor entity will be required to register as an investment company
under the 1940 Act and (c) following such merger, consolidation, amalgamation,
conversion, replacement, conveyance, transfer or lease, the Trust or the
successor entity will continue to be treated as a grantor trust for U.S. federal
income tax purposes, and (viii) the Depositor owns all of the common securities
of such successor entity and guarantees the obligations of such successor entity
under the Successor Securities, at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, the Trust shall not, except with the
consent of holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, convert into, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate, amalgamate,
convert into, merge with or into, or replace it if such consolidation,
amalgamation, conversion, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be classified as other
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than a grantor trust for United States Federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS; REMARKETING
Section 10.1. Limitation of Rights of Securityholders.
The death or incapacity of any person having an interest, beneficial
or otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Administrative Trustees and the Depositor, without the
consent of any Securityholders, (i) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with the other
provisions of this Trust Agreement, or (ii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will be classified for United States Federal income tax
purposes as a grantor trust at all times that any Trust Securities are
outstanding or to ensure that the Trust will not be required to register as an
investment company under the 1940 Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect the
interests of any Securityholder, and any amendments of this Trust Agreement
pursuant to Section 10.2 shall become effective when notice thereof is given to
the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of
this Trust Agreement may be amended by the Trustees and the Depositor with (i)
the consent of Trust Securityholders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then Outstanding
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and (ii) receipt by the Trustees of an Opinion of Counsel to the effect that
such amendment or the exercise of any power granted to the Trustees in
accordance with such amendment will not affect the Trust's status as a grantor
trust for United States Federal income tax purposes or the Trust's exemption
from status of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers,
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
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Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.4. Governing Law.
This Trust Agreement and the rights and obligations of each of the
Securityholders, the Trust and the Trustees with respect to this Trust Agreement
and the Trust Securities shall be construed in accordance with and governed by
the laws of the State of Delaware.
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a
day that is not a Business Day, then such payment need not be made on such date
but may be made on the next succeeding day is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article ________ of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall
not affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or
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permitted to be given or served to or upon an Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (a) in the case of a Preferred Securityholder, to such
Preferred Securityholder as such Securityholder's name and address may appear on
the Securities Register; and (b) in the case of the Common Securityholder or the
Depositor, to Atlas Air, Inc., 538 Commons Drive, Golden, Colorado 80401,
Attention: Chief Financial Officer, facsimile no. (303) 526-5051. Any notice to
Preferred Securityholders shall also be given to such owners as have, within two
years preceding the giving of such notice, filed their names and addresses with
the Property Trustee for that purpose. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to The First
National Bank of Chicago, One First National Plaza, Suite 0126,Chicago, Illinois
60670-0126 Attention: Corporate Trust Services Division; (b) with respect to the
Delaware Trustee, to First Chicago Delaware Inc., c/o FCC National Bank, 300
King Street, Wilmington, Delaware 19801; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of Atlas Air Capital III."
Such notice, demand or other communication to or upon the Trust or e Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust or the Property Trustee.
Section 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the
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event the Depositor takes action in violation of this Section 10.9, the Property
Trustee agrees, for the benefit of Securityholders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control . If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Agreement
as so modified or excluded , the latter provision shall be deemed to apply to
this Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
Section 10.11. Remarketing.
(a) The Debt Securities Issuer will request, not later than 7 nor
more than 15 calendar days prior to the Remarketing Date that the Clearing
Agency notify the Holders of Preferred Securities of the Remarketing and of the
procedures that must be followed if a Holder of Preferred Securities wishes to
exercise such Holder's rights with respect to the Put Option if there is a
Failed Remarketing.
<PAGE> 83
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(b) later than 5:00 P.M., New York City time, on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, each Holder of
the Preferred Securities may elect to have Preferred Securities held by such
Holder remarketed. Holders of Preferred Securities shall give notice of their
election to have such Preferred Securities remarketed to the Custodial Agent
pursuant to the Pledge Agreement. Any such notice shall be irrevocable after
5:00 P.M., New York City time on the fifth Business Day immediately preceding
the Purchase Contract Settlement Date and may not be conditioned upon the level
at which the Reset Rate is established. Promptly after 5:30 P.M., New York City
time, on such fifth Business Day, the Property Trustee, based on the notices
received by it prior to such time, shall notify the Trust, the Depositor and the
Remarketing Agent of the number of Preferred Securities to be tendered for
remarketing.
(c) The right of each Holder to have Preferred Securities tendered
for purchase shall be limited to the extent that (i) the Remarketing Agent
conducts a remarketing pursuant to the terms of the Remarketing Agreement, (ii)
Preferred Securities tendered have not been called for redemption, (iii) the
Remarketing Agent is able to find a purchaser or purchasers for tendered
Preferred Securities, at a price of not less than 100% of the stated liquidation
amount thereof plus accrued and unpaid distributions thereon, and (iv) such
purchaser or purchasers deliver the purchase price therefor to the Remarketing
Agent as and when required.
(d) On the Remarketing Date, the Remarketing Agent shall use
reasonable efforts to remarket at a price equal to approximately __% of the
aggregate liquidation amount thereof, Preferred Securities tendered or deemed
tendered for purchase.
(e) If none of the Holders elect to have Preferred Securities held
by them remarketed, the Reset Rate shall be the rate determined by the
Remarketing Agent, subject to the terms of the Remarketing Agreement, as the
rate that would have been established had a remarketing been held on the
Remarketing Date.
(f) If the Remarketing Agent has determined that it will be able to
remarket all Preferred Securities tendered or deemed tendered prior to 4:00
P.M., New York City time, on the Remarketing Date, the Remarketing Agent shall
determine the Reset Rate, which shall be the rate per annum (rounded to the
nearest one-thousandth (0.001) of one percent per annum) which
<PAGE> 84
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the Remarketing Agent determines, subject to the terms of the Remarketing
Agreement, to be the lowest rate per annum that will enable it to remarket all
Preferred Securities tendered or deemed tendered for remarketing.
(g) If, by 4:00 P.M., New York City time, on the Remarketing Date,
the Remarketing Agent is unable to remarket all Preferred Securities tendered or
deemed tendered for purchase or if the remarketing shall not have occurred
because a condition precedent to the remarketing shall not have been fulfilled,
a Failed Remarketing shall be deemed to have occurred and the Remarketing Agent
shall so advise by telephone the Collateral Agent, Debt Securities Issuer,
Property Trustee, Delaware Trustee and Clearing Agency.
(h) By approximately 4:30 P.M., New York City time, on the
Remarketing Date, provided that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (i) the Collateral Agent, Debt
Securities Issuer, Property Trustee, Delaware Trustee and Clearing Agency of the
Reset Rate determined in the Remarketing and the number of Preferred Securities
sold in the remarketing, (ii) each purchaser (or the Clearing Agency Participant
thereof) of the Reset Rate and the number of Preferred Securities such purchaser
is to purchase and (iii) each purchaser to give instructions to its Clearing
Agency Participant to pay the purchase price on the Purchase Contract Settlement
Date in same day funds against delivery of the Preferred Securities purchased
through the facilities of the Clearing Agency.
(i) In accordance with the Clearing Agency's normal procedures, on
the Purchase Contract Settlement Date, the transactions described above with
respect to each Preferred Security tendered for purchase and sold in the
remarketing shall be executed through the Clearing Agency, and the accounts of
the respective Clearing Agency Participants shall be debited and credited and
such Preferred Securities delivered by book entry as necessary to effect
purchases and sales of such Preferred Securities. The Clearing Agency shall make
payment in accordance with its normal procedures.
(j) If any Holder selling Preferred Securities in the remarketing
fails to deliver such Preferred Securities, the Clearing Agency Participant of
such selling Holder and of any other Person that was to have purchased Preferred
Securities in the remarketing may deliver to any such other Person a number of
Preferred Securities that is less than the number of Preferred Securities that
otherwise was to be purchased by such
<PAGE> 85
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person. In such event, the number of Preferred Securities to be so delivered
shall be determined by such Clearing Agency Participant, and delivery of such
lesser number of Preferred Securities shall constitute good delivery.
(k) The Remarketing Agent is not obligated to purchase any Preferred
Securities in a remarketing or otherwise. Neither the Trust, any Trustee, the
Depositor nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of Preferred Securities for remarketing.
(l) The tender and settlement procedures set forth in this Section
10.11, including provisions for payment by purchasers of Preferred Securities in
the remarketing, shall be subject to modification, notwithstanding any provision
to the contrary set forth herein to the extent required by the Clearing Agency
or if the book-entry system is no longer available for the Preferred Securities
at the time of the remarketing, to facilitate the tendering and remarketing of
Preferred Securities in certificated form. In addition, the Remarketing Agent
may, notwithstanding any provision to the contrary set forth in Article 6 or
Section 10.2, modify the settlement procedures set forth herein in order to
facilitate the settlement process.
(m) Anything herein to the contrary notwithstanding, the Reset Rate
shall in no event exceed the maximum rate permitted by applicable law and, as
provided in the Remarketing Agreement, neither the Remarketing Agent nor the
Reset Agent (as defined in the Remarketing Agreement) shall have any obligation
to determine whether there is any limitation under applicable law on the Reset
Rate or, if there is any such limitation, the maximum permissible Reset Rate on
the Preferred Securities and they shall rely solely upon written notice from the
Depositor and the Trust (which the Depositor and the Trust agree to provide
prior to the tenth Business Day before the Purchase Contract Settlement Date) as
to whether or not there is any such limitation and, if so, the maximum
permissible Reset Rate.
Section 10.12. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
<PAGE> 86
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BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT AND AGREEMENT TO THE OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
ATLAS AIR, INC., as Depositor
By:_____________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as
Property Trustee
By:_____________________________________
Name:
Title:
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:_____________________________________
Name:
Title:
________________________________________
[ ],
as Administrative Trustee
________________________________________
[ ],
as Administrative Trustee
________________________________________
[ ],
as Administrative Trustee
<PAGE> 87
A-2
EXHIBIT A
CERTIFICATE OF TRUST
OF
ATLAS AIR CAPITAL III
THIS Certificate of Trust of Atlas Air Capital III (the "Trust"),
dated April 23, 1999, is being duly executed and filed by The First National
Bank of Chicago, a national banking association, First Chicago Delaware Inc., a
Delaware corporation, and Stephen Nevin, as trustees, to form a business trust
under the Delaware Business Trust Act (12 Del. C. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is Atlas
Air Capital III.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is First
Chicago Delaware, Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
By: /s/ Sandra L. Caruba
------------------------------------
Name: Sandra L. Caruba
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Sandra L. Caruba
-------------------------------------
Name: Sandra L. Caruba
Title: Vice President
/s/ Stephen Nevin
------------------------------------
Stephen Nevin, as Trustee
A-1
<PAGE> 88
EXHIBIT B
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: General Counsel's Office
Re: Atlas Air Capital III % [Cumulative Quarterly
Income] Preferred Securities, [Series A]
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating
to the issuance and deposit with The Depository Trust Company ("DTC") of the
Atlas Air Capital III % [Cumulative Quarterly Income] Preferred Securities,
[Series A] (the "Preferred Securities"), of Atlas Air Capital III, a Delaware
business trust (the "Issuer"), formed pursuant to a Trust Agreement between
Atlas Air, Inc. ("Atlas"), The First National Bank of Chicago, as Property
Trustee, First Chicago Delaware, Inc., as Delaware Trustee, and the
Administrative Trustees named therein. The payment of distributions on the
Preferred Securities, and payments due upon liquidation of Issuer or redemption
of the Preferred Securities, to the extent the Issuer has funds available for
the payment thereof are guaranteed by Atlas to the extent set forth in a
Guarantee Agreement dated ______, 1999 by Atlas with respect to the Preferred
Securities. Atlas and the Issuer propose to sell the Preferred Securities to
certain Underwriters (the "Underwriters") pursuant to an Underwriting Agreement
dated __________, 1999 by and among the Underwriters, the Issuer and Atlas and
the Underwriters wish to take delivery of the Preferred Securities through DTC.
The First National Bank of Chicago is acting as transfer agent and registrar
with respect to the Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC agree
among each other as follows:
1. Prior to the closing of the sale of the Preferred Securities to
the Underwriters, which is expected to occur on or about _________, 1999, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an
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<PAGE> 89
aggregate of Preferred Securities and bearing the following legend:
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.
2. The Amended and Restated Trust Agreement of the Issuer provides
for the voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
a 11 or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable such expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a
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<PAGE> 90
method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes) shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or
by mail or any other means to:
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<PAGE> 91
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the
CUSIP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "Atlas Air Capital III ___% [Cumulative Quarterly Income] Preferred
Securities, [Series A]."
8. Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in next day funds on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be made
payable to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DTC may by prior written notice direct the Issuer and the
Transfer Agent and Registrar to use any other telecopy number or address of DTC
as the number or address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depositary with
respect to the Preferred Securities at any time by giving at least 90 days'
prior written notice to the Issuer and the Transfer Agent and Registrar (at
which time DTC will confirm with the Issuer or the Transfer Agent and Registrar
the aggregate number of Preferred Securities deposited with it) and discharging
its responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may deter-
B-4
<PAGE> 92
mine to make alternative arrangements for book-entry settlement for the
Preferred Securities, make available one or more separate global certificates
evidencing Preferred Securities to any Participant having Preferred Securities
credited to its DTC account, or issue definitive Preferred Securities to the
beneficial holders thereof, and in any such case, DTC agrees to cooperate fully
with the Issuer and the Transfer Agent and Registrar, and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar. 12. In
the event that the Issuer determines that beneficial owners of Preferred
Securities shall be able to obtain definitive Preferred Securities, the Issuer
or the Transfer Agent and Registrar shall notify DTC of the availability of
certificates. In such event, the Issuer or the Transfer Agent and Registrar
shall issue, transfer and exchange certificates in appropriate amounts, as
required by DTC and others, and DTC agrees to cooperate fully with the Issuer
and the Transfer Agent and Registrar and to return the Global Certificate, duly
endorsed for transfer as directed by the Issuer or the Transfer Agent and
Registrar, together with any other documents of transfer reasonably requested by
the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of Atlas Air Capital III.
Very truly yours,
ATLAS AIR CAPITAL III
(As Issuer)
(Name of Trustee)
By:_____________________________________
Administrative Trustee
By:_____________________________________
Name:
Title:
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<PAGE> 93
________________________________________
(As Transfer Agent and Registrar)
By:_____________________________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:________________________________
Authorized Officer
B-6
<PAGE> 94
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN AS SET FORTH IN THE TRUST
AGREEMENT (AS DEFINED BELOW)
Certificate Number Number Of Common Securities
C-1
Certificate Evidencing Common Securities
of
ATLAS AIR CAPITAL III
___% Common Securities
(Liquidation Amount $ Per Common Security)
Atlas Air Capital III, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Atlas Air,
Inc. (the "Holder") is the registered owner of (___) common securities of the
Trust representing beneficial interests of the Trust and designated the___ %
Common Securities (liquidation amount $ per Common Security) (the "Common
Securities"). To the extent set forth in Section 5.10 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of _______, 1999, as the same may be amended from time to time (the "Trust
Agreement") including the designation of the terms of the Common Securities as
set forth therein. The Trust will furnish a copy of the Trust Agreement to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
C-1
<PAGE> 95
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this _____ day of _______, _____.
ATLAS AIR CAPITAL III
By:_____________________________________
Name:
Administrative Trustee
FORM OF REVERSE OF SECURITY
Distributions payable on each Common Security will be fixed at a
rate per annum of __% through and including , and at the Reset Rate
thereafter (the "Coupon Rate") of the stated liquidation amount of $ per
Common Security, such rate being the rate of interest payable on the Debt
Securities to be held by the Property Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly at the rate of
__% through and including , and at the Reset Rate thereafter (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
such cash distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debt Securities held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and for any period shorter than
a full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
in such 90-day period.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on _____________, _____________ and
______________ of each year, commencing on , , to Holders of record one
Business Day prior to such payment date, which payment dates shall correspond to
the interest payment dates on the Debt Securities. The Debt Securities Issuer
has the right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debt Securities for a period
not extending beyond the date of maturity of the Debt Securities (each an
"Extension Period") and, as a consequence of such deferral, Distributions will
also be deferred. Despite
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<PAGE> 96
such deferral, quarterly Distributions will continue to accrue with interest
thereon at the rate of __% through and including , and at the Reset Rate
thereafter, compounded quarterly during any such Extension Period (to the extent
permitted by applicable law). Payments of accrued Distributions will be payable
to Holders as they appear on the books and records of the Trust on the record
date next preceding the quarterly Distribution payment date on which the
relevant Extension Period ends. Upon the termination of any Extension Period and
the payment of all amounts then due, the Debt Securities Issuer may commence a
new Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed beyond the maturity date
of the Debt Securities, and no Extension Period may end other than on a
quarterly Distribution payment date.
The Common Securities shall be redeemable as provided in the
Declaration.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Trust
to repay $_____ stated liquidation amount of the within Common Security,
pursuant to its terms, on the "Put Option Exercise Date," together with
Distributions thereon accrued but unpaid to the date of repayment, to the
undersigned at:
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Declaration, a new
Common Security or Common Securities representing the remaining stated
liquidation amount, if any, of this Common Security.
For this Option to Elect Repayment to be effective, the within Common Security
with this Option to Elect Repayment duly completed must be received by the Trust
at the Corporate Trust Office of the Property Trustee at The First National Bank
of Chicago, One First National Plaza, Suite 0126, Chicago IL 60670-0126,
Attention: Corporate Trust Administration, no later than 5:00 p.m. on the third
Business Day immediately preceding , .
Date: Signature:
------------------------------
Signature Guarantee:
-------------------------
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<PAGE> 97
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Common Security in every particular
without alternation or enlargement or any change whatsoever.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: Signature:
---------------------------
Signature Guarantee:
-------------------------
(Sign exactly as your name appears on the other side
of this Common Certificate)
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<PAGE> 98
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement dated as of ______________, 1999, between Atlas Air, Inc.,
a Colorado corporation ("Atlas"), and Atlas Air Capital III, a Delaware business
trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debt Securities from Atlas and to issue and
sell ___% [Cumulative Quarterly Income] Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of _________, 1999 as the same may be amended from time to time (the "Trust
Agreement");
WHEREAS, Atlas will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debt Securities;
NOW, THEREFORE, in consideration of the purchase by each holder of
the Preferred Securities, which purchase Atlas hereby agrees shall benefit Atlas
and which purchase Atlas acknowledges will be made in reliance upon the
execution and delivery of this Agreement, Atlas and Trust hereby agree as
follows:
ARTICLE I
Section 1.1. Guarantee by Atlas.
Subject to the terms and conditions hereof, Atlas hereby irrevocably
and unconditionally guarantees to each person or entity to whom the Trust is now
or hereafter becomes indebted or liable (the "Beneficiaries") the full payment,
when and as due, of any and all obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust, other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
D-1
<PAGE> 99
Section 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
anytime any holder of Preferred Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Securities, under any Obligation,
under the Guarantee Agreement dated the date hereof by Atlas and The First
National Bank of Chicago as guarantee trustee or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.3. Waiver of Notice.
Atlas hereby waives notice of acceptance of this Agreement and of
any Obligation to which it applies or may apply, and Atlas hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.4. No Impairment.
The obligations, covenants, agreements and duties of Atlas under
this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the obligations or for the performance o any other Obligation
under, arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement composition or
readjustment of debt of, or other similar proceedings affecting the Trust
or any of the assets of the Trust.
D-1
<PAGE> 100
There shall be no obligation of the Beneficiaries to give notice to,
or obtain the consent of, Atlas with respect to the happening of any of the
foregoing.
Section 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Atlas and
Atlas waives any right or remedy to require that any action be brought against
the Trust or any other person or entity before proceeding against Atlas.
Section 1.6. Subrogation.
Atlas shall be subrogated to all (if any) rights of the Trust in
respect of any amounts paid to the Beneficiaries by Atlas under this Agreement;
provided, however, that Atlas shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Agreement, if, at the
time of any such payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
Section 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of Atlas and
shall inure to the benefit of the Beneficiaries.
Section 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred Securities
of any series are outstanding, this Agreement sha11 not be modified or amended
in any manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
Section 2.3. Notices.
Any notice, request or other communication required or permitted to
be given hereunder shall be given in writing by delivering the same against
receipt therefor by facsimile transmission (confirmed by mail), telex or by
registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answer-back, if sent by telex):
D-2
<PAGE> 101
Atlas Air Capital III
c/o FCC National Bank
300 King Street
Wilmington, Delaware 19801
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Department
Atlas Air, Inc.
530 Commons Drive
Golden, Colorado 80401
Facsimile No.: (303) 526-5051
Attention: Chief Financial Officer
Section 2.4.
This agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York.
This Agreement is executed as of the day and year first above
written.
ATLAS AIR, INC.
By:_____________________________________
Name:
Title:
ATLAS AIR CAPITAL III
By:_____________________________________
Name:
Title:
D-4
<PAGE> 102
EXHIBIT E
If the Preferred Security is to be a Global Certificate Insert--This
Preferred Security is a Global Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
Atlas Air Capital III or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Certificate Number Number Of Preferred Securities
P-_____________ Cusip No.__________
Certificate Evidencing Preferred Securities
of
ATLAS AIR CAPITAL III
____% [Cumulative Quarterly Income] Preferred Securities, Series
(Liquidation Amount $ Per Preferred Security)
Atlas Air Capital III, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that (the
"Holder") is the registered owner of (____) preferred securities of the Trust
representing an undivided beneficial interest in the assets of the Trust and
designated the Atlas Air Capital III _____% [Cumulative Quarterly Income]
Preferred Securities, Series (liquidation amount $ per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of
D-3
<PAGE> 103
the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.4 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _______, 1999, as the same may be amended from time to time
(the "Trust Agreement"). The Holder is entitled to the benefits of the Guarantee
Agreement entered into by Atlas Air, Inc., a Delaware corporation, and The First
National Bank of Chicago, as guarantee trustee, dated as of ________, 1999, as
the same may be amended from time to time (the "Guarantee"), to the extent
provided therein. The Trust will furnish a copy of the Trust Agreement and the
Guarantee to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this _____ day of ______________, ____.
ATLAS AIR CAPITAL III
By:_____________________________________
Name:
Administrative Trustee
E-2
<PAGE> 104
FORM OF REVERSE OF SECURITY
Distributions payable on each Preferred Security will be fixed at a
rate per annum of __% through and including __, and at the Reset Rate
thereafter (the "Coupon Rate") of the stated liquidation amount of $__ per
Preferred Security, such rate being the rate of interest payable on the Debt
Securities to be held by the Property Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly at the rate of
__% through and including __, and at the Reset Rate thereafter (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
such cash distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debt Securities held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and for any period shorter than
a full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
in such 90-day period.
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on _____________, _____________ and
______________ of each year, commencing on ______,______, to Holders of record
one Business Day prior to such payment date, which payment dates shall
correspond to the interest payment dates on the Debt Securities. If the
Preferred Securities shall not continue to remain in book-entry form or are not
in book-entry form at issuance, the relevant record dates for the Preferred
Securities shall conform to the rules of any securities exchange on which the
Preferred Securities are listed and, if none, shall be one Business Day before
the relevant payment dates, which payment dates shall correspond to the interest
payment dates on the Debt Securities. The Debt Securities Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debt Securities for a period not
extending beyond the date of maturity of the Debt Securities (each an "Extension
Period") and, as a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon at the rate of __% through and including _______, and
at the Reset Rate thereafter, compounded quarterly during any such Extension
Period (to the extent permitted by applicable law). Payments of
E-3
<PAGE> 105
accrued Distributions will be payable to Holders as they appear on the books and
records of the Trust on the record date next preceding the quarterly
Distribution payment date on which the relevant Extension Period ends. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Debt Securities Issuer may commence a new Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed beyond the maturity date of the Debt Securities, and no Extension
Period may end other than on a quarterly Distribution payment date.
The Preferred Securities shall be redeemable as provided in the
Declaration.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Trust
to repay $_____ stated liquidation amount of the within Preferred Security,
pursuant to its terms, on the "Put Option Exercise Date," together with
Distributions thereon accrued but unpaid to the date of repayment, to the
undersigned at:
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Declaration, a new
Preferred Security or Preferred Securities representing the remaining stated
liquidation amount, if any, of this Preferred Security.
For this Option to Elect Repayment to be effective, the within Preferred
Security with this Option to Elect Repayment duly completed must be received by
the Trust at the Corporate Trust Office of the Property Trustee at The First
National Bank of Chicago, One First National Plaza, Suite 0126, Chicago IL
60670-0126, Attention: Corporate Trust Administration, no later than 5:00 p.m.
on the third Business Day immediately preceding ______,________.
Date: Signature:
------------------------------
Signature Guarantee:
-------------------------
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Preferred Security in every
particular without alternation or enlargement or any change whatsoever.
E-4
<PAGE> 1
LETTERHEAD OF CAHILL GORDON & REINDEL EXHIBIT 5.1
May 6, 1999
Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
Re: Registration of Preferred Stock, Common Stock
and Stock Purchase Contracts
Ladies and Gentlemen:
We have acted as counsel for Atlas Air, Inc., a Delaware
corporation ("Atlas"), in connection with the filing by Atlas of its
Registration Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), which registration
statement relates to up to $250,000,000 in aggregate principal amount of shares
of Common Stock of Atlas, $0.01 par value per share (the "Common Stock"), shares
of Preferred Stock of Atlas, $1.00 par value per share (the "Preferred Stock")
and certain contracts to purchase shares of Common Stock (the "Stock Purchase
Contracts", and collectively with the Common Stock and the Preferred Stock, the
"Securities").
In so acting, we have examined and relied upon the accuracy of
original, certified, conformed or photographic copies of such records,
agreements, certificates and other documents as we have deemed necessary or
appropriate to enable us to render the opinions set forth below. In all such
examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies and, as to certificates of
public officials and officers of Atlas, we have assumed the same to have been
properly given and to be accurate.
<PAGE> 2
-2-
Based upon the foregoing, assuming all necessary corporate
action shall have been taken to authorize the issuance and sale of such
Securities and appropriate certificates representing the Securities are duly
executed and delivered by Atlas, countersigned by the applicable transfer agent
or registrar, registered and sold in accordance with the related purchase
agreement or underwriting agreement between Atlas and the purchasers or
underwriters, as the case may be, named therein, we are of the opinion that the
Securities will be validly issued, fully paid and nonassessable.
The opinion expressed herein is limited in all respects to the
laws of the State of New York, the corporate laws of the State of Delaware and
the federal laws of the United States.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Validity of
the Securities" in the prospectus relating to the Securities that constitutes a
part of the Registration Statement. Our consent to such reference does not
constitute a consent under Section 7 of the Securities Act as in consenting to
such reference we have not certified any part of the Registration Statement and
do not otherwise come within the categories of persons whose consent is required
under Section 7 or under the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ CAHILL GORDON & REINDEL
<PAGE> 1
LETTERHEAD OF CAHILL GORDON & REINDEL EXHIBIT 5.2
May 6, 1999
Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
Re: Registration of Debt Securities
Ladies and Gentlemen:
We have acted as counsel for Atlas Air, Inc., a Delaware
corporation ("Atlas"), in connection with the filing by Atlas of its
Registration Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), which registration
statement relates to up to $250,000,000 in aggregate principal amount of certain
debt securities of Atlas (the "Debt Securities"). The Debt Securities will be
issued by Atlas in one or more series pursuant to the provisions of an Indenture
to be entered into between Atlas and The First National Bank of Chicago, as
Trustee (the "Trustee"), a form of which has been filed as an exhibit to the
Registration Statement (the "Indenture"), as amended by a separate securities
resolution for each series of Debt Securities (each, a "Securities Resolution").
In so acting, we have examined and relied upon the accuracy of
original, certified, conformed or photographic copies of such records,
agreements, certificates and other documents as we have deemed necessary or
appropriate to enable us to render the opinions set forth below. In all such
examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies and, as to certificates of
public officials and
<PAGE> 2
-2-
officers of Atlas, we have assumed the same to have been properly given and to
be accurate.
Based upon the foregoing, assuming the due authorization,
execution and delivery of the Indenture and each applicable Securities
Resolution by each of the parties thereto, we are of the opinion that the Debt
Securities, when duly authorized, executed and delivered on behalf of Atlas,
authenticated by the Trustee in accordance with the terms of the Indenture and
sold in accordance with the related purchase agreement or underwriting agreement
between Atlas and the purchasers or underwriters, as the case may be, named
therein will be validly issued and will constitute valid and binding obligations
of Atlas entitled to the benefits of the Indenture and each applicable
Securities Resolution in accordance with their terms and the terms of the
Indenture and such Securities Resolution.
The opinion set forth above is subject to the effect of (i)
any bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights and remedies of creditors generally, (ii) general
principles of equity (whether applied by a court of law or equity) and (iii) the
requirement that a claim with respect to any Debt Securities denominated other
than in United States dollars (or a foreign currency or composite currency
judgment in respect of such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to applicable law.
The opinion expressed herein is limited in all respects to the
laws of the State of New York, the corporate laws of the State of Delaware and
the federal laws of the United States.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Validity of
the Securities" in the prospectus relating to the Debt Securities that
constitutes a part of the Registration Statement. Our consent to such reference
does not constitute a consent under Section 7 of the Securities Act as in
consenting to such reference we have not certified any part of the Registration
Statement and do not otherwise come within the categories of persons whose
consent is required under Section 7 or under the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ CAHILL GORDON & REINDEL
<PAGE> 1
LETTERHEAD OF CAHILL GORDON & REINDEL EXHIBIT 5.3
May 6, 1999
Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
Re: Registration of Pass Through Certificates
Ladies and Gentlemen:
We have acted as counsel for Atlas Air, Inc., a Delaware
corporation ("Atlas"), in connection with the filing by Atlas of its
Registration Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act") which registration
statement relates to up to $250,000,000 in aggregate principal amount of Pass
Through Certificates of Atlas (the "Pass Through Certificates"). The Pass
Through Certificates will be issued pursuant to the provisions of the Pass
Through Trust Agreement to be entered into between Atlas and Wilmington Trust
Company, as Pass Through Trustee (the "Pass Through Trustee"), a form of which
has been filed as an exhibit to the Registration Statement (the "Pass Through
Agreement"), as supplemented by a separate Series Supplement for each series of
Pass Through Certificates (each, a "Series Supplement").
In so acting, we have examined and relied upon the accuracy of
original, certified, conformed or photographic copies of such records,
agreements, certificates and other documents as we have deemed necessary or
appropriate to enable us to render the opinions set forth below. In all such
examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies and, as to certificates of
public officials and
<PAGE> 2
-2-
officers of Atlas, we have assumed the same to have been properly given and to
be accurate.
Based upon the foregoing, assuming (i) the due authorization,
execution and delivery of the Pass Through Agreement and each applicable Series
Supplement by each of the parties thereto, (ii) the due authorization,
execution, issue, delivery and authentication by the Pass Through Trustee of the
Pass Through Certificates to be issued under the Pass Through Agreement and each
applicable Series Supplement, we are of the opinion that (A) the Pass Through
Agreement constitutes, and each applicable Series Supplement, when duly executed
and delivered, will constitute, a valid and binding agreement of each of the
parties thereto, and (B) the Pass Through Certificates, when duly executed,
delivered and authenticated by the Pass Through Trustee in accordance with the
terms of the Pass Through Agreement and each applicable Series Supplement and
sold in accordance with the related purchase agreement or underwriting agreement
between Atlas and the purchasers or underwriters, as the case may be, named
therein, will be validly issued and will constitute valid and binding
obligations of the Pass Through Trustee entitled to the benefits of the Pass
Through Agreement and each applicable Series Supplement in accordance with their
terms and the terms of the Pass Through Agreement and such Series Supplement.
The opinions set forth above are subject to the effect of (i)
any bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (ii) general
principles of equity (whether applied by a court of law or equity).
The opinions expressed herein are limited in all respects to
the laws of the State of New York, the corporate laws of the State of Delaware
and the federal laws of the United States.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us under the caption "Validity
of the Certificates" and "Certain United States Federal Income Tax Consequences"
in the prospectus relating to the Pass Through Certificates that constitutes a
part of the Registration Statement. Our consent to such references does not
constitute a consent under Section 7 of the Securities Act as in consenting to
such references we have not certified any part of the Registration Statement and
do not otherwise come within the categories of persons whose consent is required
under Section 7 or under the rules and regulations of the Securities and
Exchange Commission thereunder.
<PAGE> 3
-3-
Very truly yours,
/s/ CAHILL GORDON & REINDEL
<PAGE> 1
[Letterhead of Richards, Layton & Finger, P.A.]
Exhibit 5.4
May 7, 1999
Atlas Air Capital I
c/o Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
Re: Atlas Air Capital I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Atlas Air, Inc., a
Delaware corporation (the "Company"), and Atlas Air Capital I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated April 23, 1999 (the
"Certificate"), as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on April 23, 1999;
(b) The Trust Agreement of the Trust, dated as of April 22, 1999, among
the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C, and E)(the "Trust Agreement"), to be entered into
among the Company, as depositor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the
Preferred Securities
<PAGE> 2
Atlas Air Capital I
May 7, 1999
Page 2
of the Trust representing undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), as proposed to be filed by the Company, the Trust and others with
the Securities and Exchange Commission on or about May 7, 1999; and
(e) A Certificate of Good Standing for the Trust, dated May 7, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the
<PAGE> 3
Atlas Air Capital I
May 7, 1999
Page 3
Preferred Security acquired by it, in accordance with the Trust Agreement and
the Registration Statement, (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration Statement, and (viii) that First Chicago Delaware Inc.
satisfies for the Trust Section 3807 of the Delaware Business Trust Act. We have
not participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Validity of the
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
<PAGE> 4
Atlas Air Capital I
May 7, 1999
Page 4
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/MKS
<PAGE> 1
[Letterhead of Richards, Layton & Finger, P.A.]
Exhibit 5.5
May 7, 1999
Atlas Air Capital II
c/o Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
Re: Atlas Air Capital II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Atlas Air, Inc., a
Delaware corporation (the "Company"), and Atlas Air Capital II, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated April 23, 1999 (the
"Certificate"), as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on April 23, 1999;
(b) The Trust Agreement of the Trust, dated as of April 22, 1999, among
the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C, and E) (the "Trust Agreement"), to be entered into
among the Company, as depositor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the
Preferred Securities
<PAGE> 2
Atlas Air Capital II
May 7, 1999
Page 2
of the Trust representing undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), as proposed to be filed by the Company, the Trust and others with
the Securities and Exchange Commission on or about May 7 1999; and
(e) A Certificate of Good Standing for the Trust, dated May 7, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the
<PAGE> 3
Atlas Air Capital II
May 7, 1999
Page 3
Preferred Security acquired by it, in accordance with the Trust Agreement and
the Registration Statement, (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration Statement, and (viii) that First Chicago Delaware Inc.
satisfies for the Trust Section 3807 of the Delaware Business Trust Act. We have
not participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Validity of the
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
<PAGE> 4
Atlas Air Capital II
May 7, 1999
Page 4
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/MKS
<PAGE> 1
[Letterhead of Richards, Layton & Finger, P.A.]
Exhibit 5.6
May 7, 1999
Atlas Air Capital III
c/o Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
Re: Atlas Air Capital III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Atlas Air, Inc., a
Delaware corporation (the "Company"), and Atlas Air Capital III, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated April 23, 1999 (the
"Certificate"), as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on April 23, 1999;
(b) The Trust Agreement of the Trust, dated as of April 22, 1999, among
the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C, and E)(the "Trust Agreement"), to be entered into
among the Company, as depositor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the
Preferred Securities
<PAGE> 2
Atlas Air Capital III
May 7, 1999
Page 2
of the Trust representing undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), as proposed to be filed by the Company, the Trust and others with
the Securities and Exchange Commission on or about May 7, 1999; and
(e) A Certificate of Good Standing for the Trust, dated May 7, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the
<PAGE> 3
Atlas Air Capital III
May 7, 1999
Page 3
Preferred Security acquired by it, in accordance with the Trust Agreement
and the Registration Statement, (vii) that the Preferred Securities are issued
and sold to the Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement, and (viii) that First Chicago Delaware
Inc. satisfies for the Trust Section 3807 of the Delaware Business Trust Act. We
have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Validity of the
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
<PAGE> 4
Atlas Air Capital III
May 7, 1999
Page 4
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/MKS
