<PAGE> 1
Post-Effective Amendment No. 1 (No. 333-71833)
Registration No. 333-
As filed with the Securities and Exchange Commission on April 26, 1999
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
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. |_|
<TABLE>
<CAPTION>
============================================================================================
Proposed maximum Amount of
Title of each class Amount to aggregate offering registration
of securities to be registered be registered(1) price(1) fee(2)
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Securities of Atlas Air Inc.:
Pass Through Certificates
Debt Securities.........
Preferred Stock.........
Common Stock (3)........
Stock Purchase Contracts (4)
Preferred Securities of Atlas
Air Capital I (5).......
Preferred Securities of Atlas
Air Capital II (5)......
Preferred Securities of Atlas
Air Capital III (5).....
Guarantees by Atlas Air, Inc.
of Preferred Securities of
Atlas Air Capital I, II and
III (5) (6).............
Total...................... $250,000,000 100% $39,911.35
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</TABLE>
(1) Includes $106,434,000 of securities being carried over from
Registration Statement No. 333-71833. Estimated solely for purposes
of determining the registration fee pursuant to Rule 457(o) under
the Securities Act. If any Debt Securities or Pass Through
Certificates are issued at a discount, such greater amount as shall
result in an aggregate initial offering price of $250,000,000. If
any Debt Securities, Pass Through Certificates, Preferred Stock,
Common Stock, Stock Purchase Contracts, Guarantees or Stock Purchase
Units are issued in a currency or composite currency other than U.S.
dollars, such different amount as shall result in an aggregate
initial offering price of U.S. $250,000,000.
(2) Pursuant to Rule 457(o), the registration fee has been calculated on
the basis of the maximum aggregate offering price of the securities
listed. Does not include the registration fee previously paid with
respect to $106,434,000 of securities of Atlas Air, Inc. covered by
Registration Statement No. 333-71833 being carried over to this
Registration Statement.
(3) Including such indeterminate number of shares of Common Stock as may
be issued (i) from time to time at indeterminate prices, (ii) upon
conversion or exchange of any Debt Securities registered hereunder,
(iii) upon exercise of any Stock Purchase Contract registered
hereunder, if and to the extent exercisable for Common Stock. Also
includes an indeterminate number of shares of Common Stock which may
be sold by certain Selling Stockholders.
(4) Including Stock Purchase Contracts which may be offered as part of
Units of Stock Purchase Contracts and other Securities registered
hereunder.
(5) Includes Preferred Securities which may be offered as part of Units
of Preferred Securities and other Securities registered hereunder.
<PAGE> 3
(6) Atlas Air, Inc. is also registering under this Registration
Statement all other obligations that it may have with respect to the
Preferred Securities issued by Atlas Air Capital I, II and III. No
separate consideration will be received for any Guarantee or any
other such obligations.
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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The information in this Prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This Prospectus is not an offer
to sell securities and it is not soliciting an offer to buy securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 26, 1999
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.
, 1999
<PAGE> 7
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
i
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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, and
2. 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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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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<PAGE> 24
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 of 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
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 and
"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 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 (which constitutes a "Trust Enforcement Event" under the Declaration)
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 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
Any Trustee may be removed with or without cause at any time by the holder of
the Common 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. 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.
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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<PAGE> 28
(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;
(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; and
(ix) such successor entity must expressly assume all of the obligations
of the Trust.
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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<PAGE> 29
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 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 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.
However, if an amendment affects only the powers, preferences or special rights
of Preferred Securities or the Common Securities, then such approval is required
only from the holders of the affected class. 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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The information in this Prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This Prospectus is not an offer
to sell securities and it is not soliciting an offer to buy securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 26, 1999
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.
, 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.
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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<PAGE> 60
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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<PAGE> 61
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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<PAGE> 62
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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<PAGE> 64
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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<PAGE> 65
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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<PAGE> 66
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
@@@4.10 -- Form of Amended and Restated Trust
Agreement for Atlas Air Capital II
@@@4.11 -- Form of Amended and Restated Trust
Agreement for Atlas Air Capital III
@@@4.12 -- Form of Preferred Security Certificate
for Atlas Air Capital I, Atlas Air
Capital II and Atlas Air Capital III
@@@4.13 -- 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 filed by amendment.
* 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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on the day of April, 1999.
ATLAS AIR, INC.
By: /s/ Stephen C. Nevin
----------------------------------
Name: Stephen C. Nevin
Title: Vice President and Chief
Financial Officer
Powers of Attorney
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated. Each person whose signature appears below hereby constitutes
Richard H. Shuyler and Stephen C. Nevin, and each of them singly, such person's
true and lawful attorneys, each with full power of substitution to sign for such
person and in such person's name and capacity indicated below, any and all
amendments to this Registration Statement, including post-effective amendments
thereto, and to file the same with the Securities and Exchange Commission,
hereby ratifying and confirming such person's signature as it may be signed by
said attorneys to any and all amendments.
Signature Title Date
--------- ----- ----
/s/ Michael A. Chowdry Chairman of the Board, Chief April 20, 1999
- ------------------------- Executive Officer, President
Michael A. Chowdry and Director
/s/ Richard H. Shuyler Executive Vice April 20, 1999
- ------------------------- President -- Strategic
Richard H. Shuyler Planning, Treasurer and
Director
/s/ Stephen C. Nevin Vice President and Chief April 20, 1999
- ------------------------- Financial Officer
Stephen C. Nevin
/s/ Berl Bernhard Director April 20, 1999
- -------------------------
Berl Bernhard
/s/ Lawrence W. Clarkson Director April 20, 1999
- -------------------------
Lawrence W. Clarkson
Director April , 1999
- -------------------------
David K.P. Li
/s/ David T. McLaughlin Director April 20, 1999
- -------------------------
David T. McLaughlin
/s/ Brian Rowe Director April 20, 1999
- -------------------------
Brian Rowe
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
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Golden, State of Colorado, on the 26th day of
April, 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
@@@4.10 -- Form of Amended and Restated Trust
Agreement for Atlas Air Capital II
@@@4.11 -- Form of Amended and Restated Trust
Agreement for Atlas Air Capital III
@@@4.12 -- Form of Preferred Security Certificate
for Atlas Air Capital I, Atlas Air
Capital II and Atlas Air Capital III
@@@4.13 -- 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 filed by amendment.
* 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
================================================================================
ATLAS AIR, INC.
----------
DEBT SECURITIES
----------
INDENTURE
Dated as of April __, 1999
The First National Bank of Chicago, Trustee
================================================================================
<PAGE> 2
PARTIAL CROSS-REFERENCE TABLE
Indenture Section TIA Section
2.05............................... 317(b)
2.06............................... 312(a), 313(c)
2.11............................... 316(a) (last sentence)
4.04............................... 314(a)(4)
4.05............................... 314(a)(1)
6.03............................... 317(a)(1)
6.04............................... 316(a)(1)(B)
6.05............................... 316(a)(1)(A)
6.07............................... 317(a)(1)
7.01............................... 315(a), 315(d)
7.04............................... 315(b)
7.05............................... 3 13(a), 313(d)
7.07............................... 3 10(a), 310(b)
7.09............................... 310(a)(2)
8.02............................... 310(a), 310(b)
10.04.............................. 316(c)
11.01.............................. 318(a)
11.02.............................. 313(c)
11.03.............................. 314(c)(1), 314(c)(2)
11.04.............................. 314(e)
<PAGE> 3
TABLE OF CONTENTS
Page
----
ARTICLE 1 -- DEFINITIONS
SECTION 1.01. Definitions ............................................... 1
SECTION 1.02. Other Definitions ......................................... 3
SECTION 1.03. Rules of Construction ..................................... 4
ARTICLE 2 -- THE SECURITIES
SECTION 2.01. Issuable in Series ........................................ 4
SECTION 2.02. Execution and Authentication .............................. 6
SECTION 2.03. Registrar and Transfer, Paying and Conversion
Agents and Other Agents ................................... 7
SECTION 2.04. Bearer Securities ......................................... 7
SECTION 2.05. Paying Agent to Hold Money in Trust ....................... 8
SECTION 2.06. Securityholder Lists ...................................... 8
SECTION 2.07. Transfer and Exchange ..................................... 8
SECTION 2.08. Replacement Securities .................................... 9
SECTION 2.09. Outstanding Securities .................................... 9
SECTION 2.10. Discounted Debt Securities ................................ 9
SECTION 2.11. Treasury Securities ....................................... 10
SECTION 2.12. Global Securities ......................................... 10
SECTION 2.13. Temporary Securities ...................................... 10
SECTION 2.14. Cancellation .............................................. 10
SECTION 2.15. Defaulted Interest ........................................ 11
ARTICLE 3 -- REDEMPTION
SECTION 3.01. Notices to Trustee ....................................... 11
SECTION 3.02. Selection of Securities to Be Redeemed ................... 11
SECTION 3.03. Notice of Redemption ..................................... 11
SECTION 3.04. Effect of Notice of Redemption ........................... 12
SECTION 3.05. Payment of Redemption Price .............................. 12
SECTION 3.06. Securities Redeemed in Part .............................. 13
ARTICLE 4 -- COVENANTS
SECTION 4.01. Payment of Securities .................................... 13
SECTION 4.02. Overdue Interest ......................................... 13
SECTION 4.03. No Lien Created, etc ..................................... 13
SECTION 4.04. Compliance Certificate ................................... 13
SECTION 4.05. SEC Reports .............................................. 14
SECTION 4.06. Costs and Expenses of Applied Power Trusts ............... 14
-i-
<PAGE> 4
Page
----
ARTICLE 5 -- SUCCESSORS
SECTION 5.01. When Company May Merge, etc ................................. 14
ARTICLE 6 -- DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default ........................................ 15
SECTION 6.02. Acceleration ............................................. 16
SECTION 6.03. Other Remedies ........................................... 17
SECTION 6.04. Waiver of Past Defaults .................................. 17
SECTION 6.05. Control by Majority ...................................... 17
SECTION 6.06. Limitation on Suits ...................................... 17
SECTION 6.07. Collection Suit by Trustee ............................... 18
SECTION 6.08. Priorities ............................................... 18
ARTICLE 7 -- TRUSTEE
SECTION 7.01. Rights of Trustee ........................................ 18
SECTION 7.02. Individual Rights of Trustee ............................. 19
SECTION 7.03. Trustee's Disclaimer ..................................... 19
SECTION 7.04. Notice of Defaults ....................................... 19
SECTION 7.05. Reports by Trustee to Holders ............................ 20
SECTION 7.06. Compensation and Indemnity ............................... 20
SECTION 7.07. Replacement of Trustee ................................... 20
SECTION 7.08. Successor Trustee by Merger, etc ......................... 21
SECTION 7.09. Trustee's Capital and Surplus ............................ 21
ARTICLE 8 -- DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance ............................................... 22
SECTION 8.02. Conditions to Defeasance ................................. 22
SECTION 8.03. Application of Trust Money ............................... 23
SECTION 8.04. Repayment to Company ..................................... 23
ARTICLE 9 -- CONVERSION
SECTION 9.01. Conversion Privilege ..................................... 23
SECTION 9.02. Conversion Procedure ..................................... 24
SECTION 9.03. Taxes on Conversion ...................................... 25
SECTION 9.04. Company Determination Final .............................. 25
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer .............. 25
SECTION 9.06. Company to Provide Conversion Securities ................. 25
SECTION 9.07. Cash Settlement Option ................................... 25
SECTION 9.08. Adjustment in Conversion Rate for
Change in Capital Stock ............................. 26
SECTION 9.09. Adjustment in Conversion Rate for Common
Stock Issued Below Market Price ..................... 27
-ii-
<PAGE> 5
Page
----
SECTION 9.10. Adjustment for Other Distributions ....................... 28
SECTION 9.11. Voluntary Adjustment ..................................... 29
SECTION 9.12. When Adjustment May Be Deferred .......................... 29
SECTION 9.13. When No Adjustment Required .............................. 29
SECTION 9.14. Notice of Adjustment ..................................... 30
SECTION 9.15. Notice of Certain Transactions ........................... 30
SECTION 9.16. Reorganization of the Company ............................ 30
ARTICLE 10 -- AMENDMENTS
SECTION 10.01. Without Consent of Holders .............................. 31
SECTION 10.02. With Consent of Holders ................................. 31
SECTION 10.03. Compliance with Trust Indenture Act ..................... 32
SECTION 10.04. Effect of Consents ...................................... 32
SECTION 10.05. Notation on or Exchange of Securities ................... 33
SECTION 10.06. Trustee Protected ....................................... 33
ARTICLE 11 -- MISCELLANEOUS
SECTION 11.01. Trust Indenture Act ..................................... 33
SECTION 11.02. Notices ................................................. 33
SECTION 11.03. Certificate and Opinion as to Conditions Precedent ...... 34
SECTION 11.04. Statements Required in Certificate or Opinion ........... 34
SECTION 11.05. Rules by Company and Agents ............................. 35
SECTION 11.06. Legal Holidays .......................................... 35
SECTION 11.07. No Recourse Against Others .............................. 35
SECTION 11.08. Duplicate Originals ..................................... 35
SECTION 11.09. Governing Law ........................................... 35
SIGNATURES ................................................................ S-1
EXHIBIT A: A Form of Registered Security .................................. A-1
EXHIBIT B: A Form of Bearer Security ...................................... B-1
Notes to Exhibits A and B
EXHIBIT C: Assignment Form ................................................ C-1
EXHIBIT D: Conversion Notice .............................................. D-1
-iii-
<PAGE> 6
INDENTURE dated as of April ___, 1999 between ATLAS AIR, INC., a
corporation organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), and THE FIRST NATIONAL BANK OF CHICAGO
("Trustee").
Each party agrees as follows for the benefit of the Holders of the
Company's debt securities issued under this Indenture:
ARTICLE 1 -- DEFINITIONS
SECTION 1.01. Definitions.
"Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
"Agent" means any Registrar, Transfer Agent, Paying Agent,
Conversion Agent or other Agent appointed by the Company.
"Atlas Trust" means a statutory business trust created under
Delaware law pursuant to a trust agreement executed by the Company, as depositor
of such Atlas Trust, and the trustees of such Atlas Trust named therein and
pursuant to a certificate of trust filed with the Delaware Secretary of State,
which Atlas Trust exists for the purposes of (i) issuing and selling its trust
securities, (ii) using the proceeds from the sale of such trust securities to
acquire a series of Securities issued by the Company under this Indenture and
(iii) engaging in only those other activities necessary, convenient or
incidental thereto.
"Authorized Newspaper" means a newspaper that is:
(1) printed in the English language or in an official language of
the country of publication;
(2) customarily published on each business day in the place of
publication; and
(3) of general circulation in the relevant place or in the financial
community of such place.
Whenever successive publications in an Authorized Newspaper are
required, they may be made on the same or different business days and in the
same or different Authorized Newspapers.
"Bearer Security" means a Security payable to bearer.
"Board" means the Board of Directors of the Company or any
authorized committee of the Board.
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of any person and all
warrants or options to acquire such capital stock.
"Common Stock" means the Common Stock, par value $.01 per share, of
the Company.
<PAGE> 7
-2-
"Company" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Conversion Rate" means such number or amount of shares of Common
Stock or other equity or debt securities for which $1,000 aggregate principal
amount of Securities of any series is convertible, initially as stated in the
Securities Resolution authorizing the series and as adjusted pursuant to the
terms of this Indenture and the Securities Resolution.
"coupon" means an interest coupon for a Bearer Security.
"Default" means any event which is, or after notice or passage of
time would be, an Event of Default (as defined below)
"Discounted Debt Security" means a Security where the amount of
principal due upon acceleration is less than the stated principal amount.
"Holder" or "Securityholder" means the person in whose name a
Registered Security is registered and the bearer of a Bearer Security or coupon.
"Indenture" means this Indenture and any Securities Resolution as
amended from time to time.
"Lien" means any mortgage, pledge, security interest or other lien.
"Officer" means the Chairman, any Vice-Chairman, the President, any
Executive or Senior Vice President, any Vice-President, the Treasurer or any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee, and delivered to the Trustee. The counsel may be
an employee of or counsel to the Company or the Trustee.
"principal" of a debt security means the principal of the security
plus the premium, if and when applicable, on the security.
"Registered Security" means a Security registered as to principal
and interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities issued under this Indenture.
"Securities Resolution" means a resolution adopted by the Board or
by a committee of Officers or an Officer pursuant to Board delegation
authorizing a series or a supplemental indenture authorizing a series executed
by an authorized Officer.
<PAGE> 8
-3-
"series" means a series of Securities or the Securities of the
series.
"Subsidiary" means a corporation a majority of whose Voting Stock is
owned by the Company or a Subsidiary.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ss.
77aaa-77bbbb), as amended.
"Trading Day" means each day on which the securities exchange or
quotation system which is used to determine the Market Price is open for trading
or quotation.
"Trustee" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the President or
any other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Trust Securities" means securities issued by an Atlas Trust.
"United States" means the United States of America, its territories
and possessions and other areas subject to its jurisdiction.
"Voting Stock" means capital stock having voting power under
ordinary circumstances to elect directors.
"Yield to Maturity" means the yield to maturity on a Security at the
time of its issuance or at the most recent determination of interest on the
Security.
SECTION 1.02. Other Definitions.
Term Defined in Section
"actual knowledge" 7.01
"Bankruptcy Law" 6.01
"Conditional Redemption" 3.04
"Conversion Agent" 2.03
"Conversion Date" 9.02
"Conversion Notice" 9.02
"Conversion Right" 9.01
"Custodian" 6.01
"Event of Default" 6.01
"Legal Holiday" 11.06
"Market Price" 9.07
"Paying Agent" 2.03
"Price Per Share" 9.09
"Registrar" 2.03
"Transfer Agent" 2.03
"Treasury Regulations" 2.04
"U.S. Government Obligations" 8.02
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SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted
accounting principles in the United States;
(3) generally accepted accounting principles are those applicable
from time to time;
(4) all terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC
rule under the TIA have the meanings assigned to them by such
definitions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in the plural
include the singular.
ARTICLE 2 -- THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities that may be issued
under this Indenture is unlimited. The Securities may be issued from time to
time in one or more series. Each series shall be created by a Securities
Resolution that establishes the terms of the series, which may include the
following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate or rates, if any, or method of calculating
the interest rate or rates;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Registered
Securities;
(6) the dates when principal and interest are payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are payable;
(9) the Registrar, Transfer Agent and Paying Agent;
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(10) the terms of any mandatory or optional redemption by the
Company including any sinking fund;
(11) the terms of any redemption at the option of Holders;
(12) the denominations in which Securities are issuable;
(13) whether Securities will be issuable as Registered Securities,
Bearer Securities or uncertificated Securities;
(14) whether and upon what terms Registered Securities, Bearer
Securities and uncertificated Securities may be exchanged;
(15) whether any Securities will be represented by a Security in
global form;
(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) the currencies (including any composite currency) in which
principal or interest may be paid;
(19) if payments of principal or interest may be made in a currency
other than that in which Securities are denominated, the
manner for determining such payments;
(20) if amounts of principal or interest may be determined by
reference to an index, formula or other method, the manner for
determining such amounts;
(21) provisions for electronic issuance of Securities or for
Securities in uncertificated form;
(22) the portion of principal payable upon acceleration of a
Discounted Debt Security;
(23) whether any Events of Default or covenants in addition to or
in lieu of those set forth in this Indenture apply;
(24) whether and upon what terms Securities may be defeased;
(25) the forms of the Securities or any coupon, which may be in the
form of Exhibit A or B;
(26) any terms that may be required by or advisable under U.S. or
other applicable laws or regulations;
(27) whether and upon what terms the Securities will be convertible
into or exchangeable for Common Stock of the Company or other
equity or debt securities, which may include the terms
provided in Article 9;
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(28) the ranking of the Securities, including the relative degree,
if any, to which the Securities of such series shall be
subordinated to one or more other series of Securities in
right of payment, whether outstanding or not;
(29) any provisions relating to extending or shortening the date on
which the principal and premium, if any, of the Securities of
such series is payable;
(30) any provisions relating to the deferral of payment of any
interest;
(31) if such Securities are to be issued to an Atlas Trust, the
forms of the related trust agreement and guarantee agreement
relating thereto;
(32) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be necessary
to permit or facilitate the issuance of such Securities to an
Atlas Trust; and
(33) any other terms not inconsistent with this Indenture.
All Securities of one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
The creation and issuance of a series and the authentication and
delivery thereof are not subject to any conditions precedent.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities by manual or facsimile
signature. The Company's seal shall be reproduced on the Securities. An Officer
shall sign any coupons by facsimile signature.
If an Officer whose signature is on a Security or its coupons no
longer holds that office at the time the Security is authenticated or delivered,
the Security and coupons shall nevertheless be valid.
A Security and its coupons shall not be valid until the Security is
authenticated by the manual or facsimile signature of the Registrar. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated the date of its original
issuance or as provided in the Securities Resolution.
Securities may have notations, legends or endorsements required by
law, stock exchange rule, agreement or usage.
In the event Securities are issued in electronic or other
uncertificated form, such Securities may be validly issued without the
signatures or seal contemplated by this Section 2.02.
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SECTION 2.03. Registrar and Transfer, Paying and Conversion Agents and Other
Agents.
The Company shall maintain an office or agency where Securities may
be authenticated ("Registrar"), where Securities may be presented for
registration of transfer or for exchange ("Transfer Agent"), where Securities
may be presented for payment ("Paying Agent") and where Securities may be
presented for conversion ("Conversion Agent"). Whenever the Company must issue
or deliver Securities pursuant to this Indenture, the Registrar shall
authenticate the Securities at the Company's request. The Transfer Agent shall
keep a register of the Securities and of their transfer and exchange.
The Trustee shall be, and is hereby appointed as, Registrar. The
Company may appoint more than one Transfer Agent, Paying Agent or Conversion
Agent or other Agent for a series. The Company shall notify the Trustee of the
name and address of any Agent not a party to this Indenture. If the Company does
not appoint or maintain a Transfer Agent, Paying Agent or Conversion Agent for a
series, the Trustee shall act as such.
SECTION 2.04. Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or exchanges of
and payments on Bearer Securities. Therefore, except as provided below:
(1) Bearer Securities will be offered, sold or delivered only
outside the United States and will be delivered in connection
with their original issuance only upon presentation of a
certificate in a form prescribed by the Company to comply with
U.S. laws and regulations.
(2) Bearer Securities will not be issued in exchange for
Registered Securities.
(3) All payments of principal and interest (including original
issue discount) on Bearer Securities will be made outside the
United States by a Paying Agent located outside the United
States unless the Company determines that:
(A) such payments may not be made by such Paying Agent
because the payments are illegal or prevented by
exchange controls as described in Treasury Regulation
ss. 1.163-5(c)(2)(v); and
(B) making the payments in the United States would not have
an adverse tax effect on the Company.
If there is a change in the relevant provisions of U.S. laws or
Treasury Regulations or the judicial or administrative interpretation thereof, a
restriction set forth in paragraph (1), (2) or (3) above will not apply to a
series if the Company determines that the relevant provisions no longer apply to
the series or that failure to comply with the relevant provisions would not have
an adverse tax effect on the Company or on Securityholders or cause the series
to be treated as "registration-required" obligations under U.S. law.
The Company shall notify the Trustee of any determinations by the
Company under this Section.
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"Treasury Regulations" means regulations of the U.S. Treasury
Department under the Internal Revenue Code of 1986, as amended.
SECTION 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a series other than
the Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the persons entitled thereto all money held by the Paying Agent for
the payment of principal of or interest on the series, and will notify the
Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying
Agent to pay all money so held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent shall have no further liability for the
money.
If the Company or an Affiliate acts as Paying Agent for a series, it
shall segregate and hold as a separate trust fund all money held by it as Paying
Agent for the series.
The Company may elect not to exchange or register the transfer of
any Security for a period of 15 days before a selection of Securities to be
redeemed.
SECTION 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Transfer Agent, the Company shall
furnish to the Trustee semiannually and at such other times as the Trustee may
request a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Registered Securities and
Holders of Bearer Securities whose names are on the list referred to below.
The Transfer Agent shall keep a list of the names and addresses of
Holders of Bearer Securities who file a request to be included on such list. A
request will remain in effect for two years but successive requests may be made.
Whenever the Company or the Trustee is required to mail a notice to
all Holders of Registered Securities of a series, it also shall mail the notice
to Holders of Bearer Securities of the series whose names are on the list.
Whenever the Company is required to publish a notice to all Holders
of Bearer Securities of a series, it also shall mail the notice to such of them
whose names are on the list.
SECTION 2.07. Transfer and Exchange.
Where Registered Securities of a series are presented to the
Transfer Agent with a request to register a transfer or to exchange them for an
equal principal amount of Registered Securities of other denominations of the
same series, the Transfer Agent shall register the transfer or make the exchange
if its requirements for such transactions are met. Where Bearer Securities of a
series are presented to the Transfer Agent with a request to exchange them for
an equal principal amount of Bearer Securities of other denominations of the
same series, the Transfer Agent shall make the exchange if its requirements for
such transactions are met.
<PAGE> 14
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The Transfer Agent may require a Holder to pay a sum sufficient to
cover any taxes imposed on a transfer or exchange.
If a series provides for Registered and Bearer Securities and for
their exchange, Bearer Securities may be exchanged for Registered Securities and
Registered Securities may be exchanged for Bearer Securities as provided in the
Securities or the Securities Resolution if the requirements of the Transfer
Agent for such transactions are met and, in the case of the exchange of
Registered Securities for Bearer Securities, if Section 2.04 permits the
exchange.
SECTION 2.08. Replacement Securities.
If the Holder of a Security or coupon claims that it has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the Company or
the Trustee that the Security or coupon has been acquired by a bona fide
purchaser, the Company shall issue a replacement Security or coupon if the
Company and the Trustee receive:
(1) evidence satisfactory to them of the loss, destruction or
taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses and any
taxes for replacing the Security or coupon.
A replacement Security shall have coupons attached corresponding to those, if
any, on the replaced Security.
Every replacement Security or coupon is an additional obligation of
the Company.
SECTION 2.09. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Registrar except for those cancelled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to
be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or
an Affiliate holds the Security.
SECTION 2.10. Discounted Debt Securities.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, the principal
amount of a Discounted Debt Security shall be the amount of principal that would
be due as of the date of such determination if payment of the Security were
accelerated on that date.
<PAGE> 15
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SECTION 2.11. Treasury Securities.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded.
SECTION 2.12. Global Securities.
If the Securities Resolution so provides, the Company may issue some
or all of the Securities of a series in temporary or permanent global form. A
global Security may be in registered form, in bearer form with or without
coupons or in uncertificated form. A global Security shall represent that amount
of Securities of a series as specified in the global Security or as endorsed
thereon from time to time. At the Company's request, the Registrar shall endorse
a global Security to reflect the amount of any increase or decrease in the
Securities represented thereby.
The Company may issue a global Security only to a depository
designated by the Company. A depository may transfer a global Security only as a
whole to its nominee or to a successor depository.
The Securities Resolution may establish, among other things, the
manner of paying principal and interest on a global Security and whether and
upon what terms a beneficial owner of an interest in a global Security may
exchange such interest for definitive Securities.
The Company, an Affiliate, the Trustee and any Agent shall not be
responsible for any acts or omissions of a depository, for any depository
records of beneficial ownership interests or for any transactions between the
depository and beneficial owners.
SECTION 2.13. Temporary Securities.
Until definitive Securities of a series are ready for delivery, the
Company may use temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Temporary Securities
may be in global form. Temporary Bearer Securities may have one or more coupons
or no coupons. Without unreasonable delay, the Company shall deliver definitive
Securities in exchange for temporary Securities.
SECTION 2.14. Cancellation.
The Company at any time may deliver Securities to the Registrar for
cancellation. The Transfer Agent and the Paying Agent shall forward to the
Registrar any Securities and coupons surrendered to them for payment, exchange
or registration of transfer. The Registrar shall cancel all Securities or
coupons surrendered for payment, registration of transfer, exchange or
cancellation. The Registrar also will cancel all Bearer Securities and unmatured
coupons unless the Company requests the Registrar to hold the same for
redelivery. Any Bearer Securities so held shall be considered delivered for
cancellation under Section 2.09. The Registrar shall destroy cancelled
Securities and coupons unless the Company otherwise directs.
Unless the Securities Resolution otherwise provides, the Company may
not issue new Securities to replace Securities that the Company has paid or that
the Company has delivered to the Registrar for cancellation.
<PAGE> 16
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SECTION 2.15. Defaulted Interest.
If the Company defaults in a payment of interest on Registered
Securities, it need not pay the defaulted interest to Holders on the regular
record date. The Company may fix a special record date for determining Holders
entitled to receive defaulted interest, or the Company may pay defaulted
interest in any other lawful manner.
ARTICLE 3 -- REDEMPTION
SECTION 3.01. Notices to Trustee.
Securities of a series that are redeemable before maturity shall be
redeemable in accordance with their terms and, unless the Securities Resolution
otherwise provides, in accordance with this Article.
In the case of a redemption by the Company, the Company shall notify
the Trustee of the redemption date and the principal amount of Securities to be
redeemed. The Company shall notify the Trustee at least 45 days before the
redemption date unless a shorter notice is satisfactory to the Trustee.
If the Company is required to redeem Securities, it may reduce the
principal amount of Securities required to be redeemed to the extent that it is
permitted a credit against such redemption requirement by the terms of the
Securities Resolution and notifies the Trustee of the amount of such credit and
the basis for it. If the reduction is based on a credit for acquired or redeemed
Securities that the Company has not previously delivered to the Registrar for
cancellation, the Company shall deliver the Securities at the same time as the
notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate. The Trustee shall make the selection from
Securities of the series outstanding not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities having
denominations larger than the minimum denomination for the series. Securities
and portions thereof selected for redemption shall be in amounts equal to the
minimum denomination for the series or an integral multiple thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail to each Holder of
Registered Securities whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company shall publish a
notice of redemption in an Authorized Newspaper as provided in the Securities.
A notice shall identify the Securities of the series to be redeemed
and shall state:
(1) the redemption date;
<PAGE> 17
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(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together with all
coupons, if any, maturing after the redemption date, must be
surrendered to the Paying Agent to collect the redemption
price;
(5) that interest on Securities called for redemption ceases to
accrue on and after the redemption date;
(6) whether the redemption by the Company is mandatory or
optional; and
(7) whether the redemption is conditional as provided in Section
3.04, and if so, the terms of the conditions, and that, if the
conditions are not satisfied or are not waived by the Company,
the Securities will not be redeemed and such a failure to
redeem will not constitute an Event of Default.
A redemption notice given by publication need not identify
Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption.
Except as provided below, once notice of redemption is given,
Securities called for redemption become due and payable on the redemption date
at the redemption price stated in the notice.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as described
in such notice ("Conditional Redemption"), and such notice of Conditional
Redemption shall be of no effect unless all such conditions to the redemption
have occurred on or before such date or have been waived by the Company in its
sole discretion.
SECTION 3.05. Payment of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date.
When the Holder of a Security surrenders it for redemption in
accordance with the redemption notice, the Company shall pay to the Holder on
the redemption date the redemption price and accrued interest to such date,
except that:
(1) the Company will pay any such interest (except defaulted
interest) to Holders on the record date of Registered
Securities if the redemption date occurs on an interest
payment date; and
<PAGE> 18
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(2) the Company will pay any such interest to Holders of coupons
that mature on or before the redemption date upon surrender of
such coupons to the Paying Agent.
Coupons maturing after the redemption date on a called Security are
void absent a payment default on that date. Nevertheless, if a Holder surrenders
for redemption a Bearer Security missing any such coupons, the Company may
deduct the face amount of such coupons from the redemption price. If thereafter
the Holder surrenders to the Paying Agent the missing coupons, the Company will
return the amount so deducted. The Company may waive surrender of the missing
coupons if it receives an indemnity bond satisfactory to the Company.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company
shall deliver to the Holder a new Security of the same series equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE 4 -- COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on a series in
accordance with the terms of the Securities for the series, any related coupons,
and this Indenture. Principal and interest on a series shall be considered paid
on the date due if the Paying Agent for the series holds on that date money
sufficient to pay all principal and interest then due on the series.
SECTION 4.02. Overdue Interest.
Unless the Securities Resolution otherwise provides, the Company
shall pay interest on overdue principal of a Security of a series at the rate
(or Yield to Maturity in the case of a Discounted Debt Security) borne by the
series; the Company shall pay interest on overdue installments of interest at
the same rate or Yield to Maturity to the extent lawful.
SECTION 4.03. No Lien Created, etc.
This Indenture and the Securities do not create a Lien, charge or
encumbrance on any property of the Company or any Subsidiary.
SECTION 4.04. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, a brief certificate signed by the
principal executive officer, principal financial officer or principal accounting
officer of the Company, as to the signer's knowledge of the Company's compliance
with all conditions and covenants under this Indenture (determined without
regard to any period of grace or requirement of notice provided herein).
<PAGE> 19
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Any other obligor on the Securities shall also deliver to the
Trustee such a certificate as to its compliance with this Indenture within 120
days after the end of each of its fiscal years.
The certificates need not comply with Section 11.04.
SECTION 4.05. SEC Reports.
The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the SEC, copies of the annual reports
and of the information, documents, and other reports (or such portions of the
foregoing as the SEC may prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Any other obligor on the Securities shall do likewise as to the
above items which it is required to file with the SEC pursuant to those
sections.
SECTION 4.06. Costs and Expenses of Atlas Trusts.
The Company shall pay all debts and obligations (other than with
respect to the Trust Securities) and all costs and expenses of any Atlas Trust
(including, but not limited to, all costs and expenses relating to the
organization of the applicable Atlas Trust, the fees and expenses of any trustee
or trustees for the Atlas Trust and all costs and expenses relating to the
operation of the applicable Atlas Trust (other than with respect to the Trust
Securities)) and to pay any and all taxes, duties, assessments or other
governmental charges of whatever nature (other than United States withholding
taxes) imposed by the United States or any other taxing authority, so that the
net amounts received and retained by the applicable Atlas Trust after paying
such fees, expenses, debts and obligations will be equal to the amounts the
applicable Atlas Trust would have received and retained had no such fees,
expenses, debts and obligations been incurred by or imposed on the applicable
Atlas Trust. The foregoing obligations of the Company are for the benefit of,
and shall be enforceable by, any person to whom such fees, expenses, debts and
obligations are owed (each, a "Creditor"), whether or not such Creditor has
received notice thereof. Any such Creditor may enforce such obligations of the
Company directly against the Company, and the Company irrevocably waives any
right or remedy to require that any such Creditor take any action against the
applicable Atlas Trust or any other person before proceeding against the
Company. The Company shall execute such additional agreements as may be
necessary to give full effect to the foregoing.
ARTICLE 5 -- SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
Unless the Securities Resolution establishing a series otherwise
provides, 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 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;
<PAGE> 20
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(2) the person assumes by supplemental indenture all the
obligations of the Company under this Indenture, the
Securities and any coupons;
(3) all required approvals of any regulatory body having
jurisdiction over the transaction shall have been obtained;
(4) immediately after the transaction no Default exists; and
(5) the Company provides an Officers' Certificate and an Opinion
of Counsel to the effect that all the provisions in this
Section 5.01 have been complied with.
The successor shall be substituted for the Company, and thereafter
all obligations of the Company under this Indenture, the Securities and any
coupons shall terminate.
ARTICLE 6 -- DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
Unless the Securities Resolution otherwise provides, an "Event of
Default" on a series of Securities occurs if:
(1) the Company defaults in any payment of interest on any
Securities of the 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 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 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;
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(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 the
series.
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.
A Default under clause (4) 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. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default."
If Holders notify the Company of a Default, they shall notify the Trustee at the
same time.
The failure to redeem any Security subject to a Conditional
Redemption is not an Event of Default if any event on which such redemption is
so conditioned does not occur and is not waived before the scheduled redemption
date.
SECTION 6.02. Acceleration.
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 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
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.
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.
<PAGE> 22
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SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing on a series, the
Trustee may pursue any available remedy to collect principal or interest then
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.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or coupons or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Unless the Securities Resolution otherwise provides, the Holders of
a majority in principal amount of a 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) by notice to
the Trustee may waive an existing Default on the series and its consequences.
Notwithstanding the preceding sentence, the consent of each Securityholder
affected, is required to waive:
(1) a Default in the payment of the principal of or interest on
the series, or
(2) a Default in respect of a provision that under Section 10.02
cannot be amended without the consent of each Securityholder
affected.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of a series may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or of exercising any trust or power conferred on the Trustee,
with respect to such series. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or if the Trustee in good
faith shall determine that the action or direction might involve the Trustee in
personal liability.
SECTION 6.06. Limitation on Suits.
A Securityholder of a series may pursue a remedy with respect to the
series only if:
(1) the Holder gives to the Trustee notice of a continuing Event
of Default on the series;
(2) the Holders of at least 25% in principal amount of the series
make a request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
<PAGE> 23
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(5) during such 60-day period the Holders of a majority in principal
amount of the series do not give the Trustee a direction inconsistent with such
request.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over another
Securityholder.
In the case of a 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 Sections 6.01(1)
and (2) hereof 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 Securities having a principal amount equal to the
aggregate liquidation amount of such preferred securities held by such holder.
SECTION 6.07. Collection Suit by Trustee.
If an Event of Default in payment of interest, principal or sinking
fund specified in Section 6.01(1), (2) or (3) occurs and is continuing on a
series, the Trustee may recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of principal and interest
remaining unpaid on the series.
SECTION 6.08. Priorities.
If the Trustee collects any money for a series pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.06;
Second: to Securityholders of the series for amounts due and unpaid
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable for principal and interest,
respectively; and
Third: to the Company.
The Trustee may fix a payment date for any payment to
Securityholders.
ARTICLE 7 -- TRUSTEE
SECTION 7.01. Rights of Trustee.
(1) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter
stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on the Certificate or
Opinion.
<PAGE> 24
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(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent
appointed with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(5) The Trustee may refuse to perform any duty or exercise any
right or power which it reasonably believes may expose it to
any loss, liability or expense unless it receives indemnity
satisfactory to it against such loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.
(7) The Trustee shall have no duty with respect to a Default
unless a Trust Officer has actual knowledge of the Default. As
used herein, the term "actual knowledge" means the actual fact
or statement of knowing, without any duty to make any
investigation with regard thereto.
(8) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized
and within its powers.
(9) Any Agent shall have the same rights and be protected to the
same extent as if it were Trustee.
(10) The Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties
hereunder.
SECTION 7.02. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities or coupons and may otherwise deal with the
Company or an Affiliate with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
SECTION 7.03. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities or any coupons; it shall not be accountable
for the Company's use of the proceeds from the Securities; it shall not be
responsible for any statement in the Securities or any coupons; it shall not be
responsible for any overissue; it shall not be responsible for determining
whether the form and terms of any Securities or coupons were established in
conformity with this Indenture; it shall not be responsible for determining
whether any Securities were issued in accordance with this Indenture; and it
shall not be responsible for the acts or omissions of any other Trustees
appointed hereunder.
SECTION 7.04. Notice of Defaults.
If a Default occurs and is continuing on a series and if the Trustee
has actual knowledge of such Default, the Trustee shall mail a notice of the
Default within 90 days after it occurs to Holders of Regis-
<PAGE> 25
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tered Securities of the series. Except in the case of a Default in payment on a
series, the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interest of Holders of the series. The Trustee shall withhold notice of a
Default described in Section 6.01(4) until at least 60 days after it occurs.
SECTION 7.05. Reports by Trustee to Holders.
Any report required by TIA ss. 313(a) to be mailed to
Securityholders shall be mailed by the Trustee on or before May 15th of each
year.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which any Securities are
listed. The Company shall notify the Trustee when any Securities are listed on a
stock exchange.
SECTION 7.06. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss or
liability incurred by it. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or willful
misconduct.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities and any coupons on all money
or property held or collected by the Trustee, except that held in trust to pay
principal or interest on particular securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(5) or (6) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive any termination or
discharge of this Indenture (including without limitation any termination under
any Bankruptcy Law) and the resignation or removal of the Trustee.
SECTION 7.07. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
<PAGE> 26
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The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee with the Company's
consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIA ss. 3l0(a)or ss. 310(b)
or with Section 7.09;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a Custodian or other public officer takes charge of the
Trustee or its property;
(4) the Trustee becomes incapable of acting; or
(5) an event of the kind described in Section 6.01(5) or (6)
occurs with respect to the Trustee.
The Company also 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.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with TIA ss. 310(a) or ss. 310(b) or
with Section 7.09, any Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Registered Securities. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.06.
SECTION 7.08. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.09. Trustee's Capital and Surplus.
The Trustee at all times shall have a combined capital and surplus
of at least $50,000.000 as set forth in its most recent published report of
financial condition.
<PAGE> 27
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ARTICLE 8 -- DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance.
Securities of a series may be defeased in accordance with their
terms and, unless the Securities Resolution otherwise provides, in accordance
with this Article.
The Company at any time may terminate as to a series all of its
obligations under this Indenture, the Securities of the series and any related
coupons ("legal defeasance option"). The Company at any time may terminate as to
a series its obligations, if any, under any restrictive covenants which may be
applicable to a particular series ("covenant defeasance option"). However, in
the case of the legal defeasance option, the Company's obligations in Sections
2.03, 2.04, 2.05, 2.06. 2.07, 2.08, 7.06, 7.07 and 8.04 shall survive until the
Securities of the series are no longer outstanding; thereafter the Company's
obligations in Section 7.06 shall survive.
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 as to which the
covenant defeasance option applicable to such series has been so exercised.
The Trustee upon request shall acknowledge in writing the discharge
of those obligations or restrictions that the Company terminates by defeasance.
SECTION 8.02. Conditions to Defeasance.
The Company may exercise as to a series its legal defeasance option
or its covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the Trustee or
another trustee money or U.S. Government Obligations;
(2) the Company delivers to the Trustee 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 sufficient to pay principal and interest when due
on all the Securities of the series to maturity or redemption,
as the case may be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the deposit does not cause the Trustee to have a conflicting
interest under TIA ss. 310(a) or ss. 310(b) as to another
series;
<PAGE> 28
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(6) the Company delivers to the Trustee an Opinion of Counsel to
the effect that Holders of the series will not recognize
income, gain or loss for Federal income tax purposes as a
result of the defeasance;
(7) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(5) or (6) occurs
that is continuing at the end of the period; and
(8) the Company provides an Officers' Certificate and an Opinion
of Counsel to the effect that all conditions precedent
pursuant to this Section 8.02 have been satisfied.
Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
"U.S. Government Obligations" means direct obligations of (i) the
United States or (ii) 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 pledged for
payment and which are not callable at the issuer's option, or certificates
representing an ownership interest in such obligations.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.02. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on
Securities of the defeased series.
SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the
Company upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest that
remains unclaimed for two years. After payment to the Company, Securityholders
entitled to the money must look to the Company for payment as unsecured general
creditors unless an abandoned property law designates another person.
ARTICLE 9 -- CONVERSION
SECTION 9.01. Conversion Privilege.
If the Securities Resolution establishing the terms of a series of
securities so provides, Securities of any series may be convertible at the
option of the holders into or for Common Stock or other equity or debt
securities (a "Conversion Right"). The Securities Resolution may establish,
among other things, the Conversion Rate, provisions for adjustments to the
Conversion Rate and limitations upon exercise of the Conversion Right.
<PAGE> 29
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Unless the Securities Resolution otherwise provides, a Holder may
convert a portion of a Security if the portion is $1,000 or in integral
multiples thereof. Provisions of this Indenture that apply to the conversion of
the aggregate principal amount of a Security also apply to conversion of a
portion of it.
The Securities Resolution providing for Securities with a Conversion
Right may establish any terms in addition to, or other than (including terms
inconsistent with), those set forth in this Article 9 with respect to the
conversion of the Securities established thereby (other than those of Section
9.16).
SECTION 9.02. Conversion Procedure.
To convert a Security a Holder must satisfy all requirements in the
Securities or the Securities Resolution and (i) complete and manually sign the
conversion notice (the "Conversion Notice") provided for in the Securities
Resolution or the Security (or complete and manually sign a facsimile thereof)
and deliver such notice to the Conversion Agent or any other office or agency
maintained for such purpose, (ii) surrender the Security to the Conversion Agent
or at such other office or agency by physical delivery, (iii) if required,
furnish appropriate endorsements and transfer documents, and (iv) if required,
pay all transfer or similar taxes. The date on which such notice shall have been
received by and the Security shall have been so surrendered to the Conversion
Agent is the "Conversion Date." Such Conversion Notice shall be irrevocable and
may not be withdrawn by a Holder for any reason.
The Company will complete settlement of any conversion of Securities
not later than the fifth business day following the Conversion Date in respect
of the cash portion elected to be delivered in lieu of the securities into which
the Security is convertible and not later than the seventh business day
following the Conversion Date in respect of the portion to be settled in such
securities.
If any Security is converted between the record date for the payment
of interest and the next succeeding interest payment date, such Security must be
accompanied by funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such Security shall
have been called for redemption during such period, in which case no such
payment shall be required). A Security converted on an interest payment date
need not be accompanied by any payment, and the interest on the principal amount
of the Security being converted will be paid on such interest payment date to
the registered holder of such Security on the immediately preceding record date.
Subject to the aforesaid right of the registered holder to receive interest, no
payment or adjustment will be made on conversion for interest accrued on the
converted Security or for interest, dividends or other distributions payable on
any security issued on conversion.
If a Holder converts more than one Security at the same time, the
securities into which the Security is convertible issuable or cash payable upon
the conversion shall be based on the total principal amount of the Securities
converted.
Upon surrender of a Security that is converted in part the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the unconverted portion of the Security surrendered; except that if a global
Security is so surrendered the Trustee shall authenticate and, if applicable,
deliver to the depository a new global Security in a denomination equal to and
in exchange for the unconverted portion of the principal of the global Security
so surrendered.
If the last day on which a Security may be converted is a Legal
Holiday in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding day that is not a
Legal Holiday.
<PAGE> 30
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SECTION 9.03. Taxes on Conversion.
If a Holder of a Security exercises a Conversion Right, the Company
shall pay any documentary, stamp or similar issue or transfer tax due on the
issue of the securities into which the Security is convertible upon the
conversion. However, the Holder shall pay any such tax which is due because
securities or other property are issued in a name other than the Holder's name.
Nothing herein shall preclude any income tax or other withholding required by
law or regulations.
SECTION 9.04. Company Determination Final.
Any determination that the Board of Directors makes pursuant to this
Article 9 or consistent with terms provided for in any Securities Resolution is
conclusive, absent manifest error.
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer.
The Trustee (and each Conversion Agent other than the Company) has
no duty to determine when or if an adjustment under this Article 9 or any
Securities Resolution should be made, how it should be made or calculated or
what it should be. The Trustee (and each Conversion Agent other than the
Company) makes no representation as to the validity or value of any securities
issued upon conversion of Securities. The Trustee (and each Conversion Agent
other than the Company) shall not be responsible for the Company's failure to
comply with this Article 9 or any provision of a Securities Resolution relating
to a Conversion Right.
SECTION 9.06. Company to Provide Conversion Securities.
The Company shall reserve out of its authorized but unissued Common
Stock or its Common Stock held in treasury sufficient shares to permit the
conversion of all of the Securities convertible into Common Stock. The Company
shall arrange and make available for issuance upon conversion the full amount of
any other securities into which the Securities are convertible to permit such
conversion of the Securities.
All shares of Common Stock or other equity securities of any person
which may be issued upon conversion of the Securities shall be validly
issued, fully paid and non-assessable.
The Company will comply with all securities laws regulating the
offer and delivery of securities upon conversion of Securities.
SECTION 9.07. Cash Settlement Option.
If the Securities Resolution so provides, the Company may elect to
satisfy, in whole or in part, a Conversion Right of Securities convertible into
Common Stock or other securities of any person by the delivery of cash. The
amount of cash to be delivered shall be equal to the Market Price on the last
Trading Day preceding the applicable Conversion Date of a share of Common Stock
or other securities of any person into which the Securities are convertible
multiplied by the number of shares of Common Stock or the number of shares or
principal amount of other securities into which the Securities are convertible,
respectively, in respect of which the Company elects to deliver cash. If the
Company elects to satisfy, in whole or in part, a Conversion Right by the
delivery of shares of Common Stock or other securities, no fractional shares or
portion of other securities will be delivered. Instead, the Company will pay
cash based on the Market Price for such fractional share of Common Stock or
portion of other securities.
<PAGE> 31
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The "Market Price" of the Common Stock into which Securities or
other equity securities into which the Securities are convertible may be
converted pursuant to a Securities Resolution or this Article 9 on any Trading
Day means the weighted average per share sale price for all sales of the Common
Stock or other equity securities on such Trading Day (or, if the information
necessary to calculate such weighted average per share sale price is not
reported, the average of the high and low sale prices, or if no sales are
reported, the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and average ask prices), as reported in the
composite transactions for the New York Stock Exchange, or if the Common Stock
or other equity securities into which the Securities are convertible are not
listed or admitted to trading on such exchange, as reported in the composite
transactions for the principal national or regional United States securities
exchange on which the Common Stock or other equity securities into which the
Securities are convertible are listed or admitted to trading or, if the Common
Stock or other equity securities into which the Securities are convertible are
not listed or admitted to trading on a United States national or regional
securities exchange, as reported by NASDAQ or by the National Quotation Bureau
Incorporated, or if not so reported, as determined in the manner set forth in
the appropriate Securities Resolution. In the absence of such quotations, the
Company shall be entitled to determine the Market Price on the basis of such
quotations as it considers appropriate.
The "Market Price" of any debt security into which Securities are
convertible shall be determined as set forth in the applicable Securities
Resolution.
SECTION 9.08. Adjustment in Conversion Rate for Change in Capital Stock.
If the Securities are convertible into Common Stock and the Company:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Common Stock into a smaller
number of shares;
(4) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any shares of
its Capital Stock,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company (or, at the Company's option, an equivalent amount in cash) which he
would have owned immediately following such action if he had converted the
Security immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If the security into which the Securities are convertible is other
than Common Stock of the Company, the conversion rate shall be subject to
adjustment as set forth in the applicable Securities Resolution.
If after an adjustment a Holder of a Security may, upon conversion,
receive shares of two or more classes of Capital Stock of the Company or other
securities, the Board of Directors of the Company shall
<PAGE> 32
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determine the allocation of the adjusted Conversion Rate between or among the
classes of Capital Stock or other securities. After such allocation, the
conversion privilege and the Conversion Rate of each class of Capital Stock or
other securities shall thereafter be subject to adjustment on terms comparable
to those applicable to Common Stock in this Article or in such Securities
Resolution.
SECTION 9.09. Adjustment in Conversion Rate for Common Stock Issued Below Market
Price.
If the Securities are convertible into Common Stock, and the Company
issues to all holders of Common Stock rights, options or warrants to subscribe
for or purchase shares of Common Stock, or any securities convertible into or
exchangeable for shares of Common Stock, or rights, options or warrants to
subscribe for or purchase such convertible or exchangeable securities at a Price
Per Share (as defined and determined according to the formula given below) lower
than the current Market Price on the date of such issuance, the Conversion Rate
shall be adjusted in accordance with the following formula:
AC = CC * ((O + N)/(O * (R/M)))
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding immediately prior to
such issuance (which number shall include shares owned or held by or for
the account of the Company).
N = the "Number of Shares," which (i) in the case of rights, options or
warrants to subscribe for or purchase shares of Common Stock or of
securities convertible into or exchangeable for shares of Common Stock, is
the maximum number of shares of Common Stock initially issuable upon
exercise, conversion or exchange thereof; and (ii) in the case of rights,
options or warrants to subscribe for or purchase convertible or
exchangeable securities, is the maximum number of shares of Common Stock
initially issuable upon the conversion or exchange of the convertible or
exchangeable securities issuable upon the exercise of such rights, options
or warrants.
R = the proceeds received or receivable by the Company, which (i) in the
case of rights, options or warrants to subscribe for or purchase shares of
Common Stock or of securities convertible into or exchangeable for shares
of Common Stock, is the aggregate amount received or receivable by the
Company in consideration for the sale and issuance of such rights,
options, warrants or convertible or exchangeable securities, plus the
minimum aggregate amount of additional consideration, other than the
convertible or exchangeable securities, payable to the Company upon
exercise, conversion or exchange thereof; and (ii) in the case of rights,
options or warrants to subscribe for or purchase convertible or
exchangeable securities, is the aggregate amount received or receivable by
the Company in consideration for the sale and issuance of such rights,
options or warrants, plus the minimum aggregate consideration payable to
the Company upon the exercise thereof, plus the minimum aggregate amount
of additional consideration, other than the convertible or exchangeable
securities, payable upon the conversion or exchange of the convertible or
exchangeable securities; provided, that in each case the proceeds received
or receivable by the Company shall be deemed to be the amount of gross
cash proceeds without deducting therefrom any compensation paid or
discount allowed in the sale, underwriting or purchase thereof by un-
<PAGE> 33
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derwriters or dealers or others performing similar services or any
expenses incurred in connection therewith.
M = the current Market Price per share of Common Stock on the date of issue
of the rights, options or warrants to subscribe for or purchase shares of
Common Stock or the securities convertible into or exchangeable for shares
of Common Stock or the rights, options or warrants to subscribe for or
purchase convertible or exchangeable securities.
"Price Per Share" shall be defined and determined according to the
following formula:
P = R/N
where:
P = Price Per Share
and R and N have the meanings assigned above.
If the Company shall issue rights, options, warrants or convertible
or exchangeable securities with respect to its Common Stock for a consideration
consisting, in whole or in part, of property other than cash the amount of such
consideration shall be determined in good faith by the Board of Directors whose
determination shall be conclusive and evidenced by a resolution of the Board of
Directors filed with the Trustee.
The adjustment shall be made successively whenever any such
additional rights, options, warrants or convertible or exchangeable securities
with respect to its Common Stock are issued, and shall become effective
immediately after the date of issue of such shares, rights, options, warrants or
convertible or exchangeable securities.
To the extent that such rights, options or warrants to acquire
Common Stock expire unexercised or to the extent any convertible or exchangeable
securities with respect to its Common Stock are redeemed by the Company or
otherwise cease to be convertible or exchangeable into shares of Common Stock,
the Conversion Rate shall be readjusted to the Conversion Rate which would then
be in effect had the adjustment made upon the date of issuance of such rights,
options, warrants or convertible or exchangeable securities been made upon the
basis of the issuance of rights. options or warrants to subscribe for or
purchase only the number of shares of Common Stock as to which such rights,
options or warrants were actually exercised and the number of shares of Common
Stock that were actually issued upon the conversion or exchange of the
convertible or exchangeable securities.
If the Securities are convertible into securities other than the
Common Stock, any adjustment in the Conversion Rate required for the issuance or
sale of the securities into which the Securities are convertible shall be made
as set forth in the Securities Resolution.
SECTION 9.10. Adjustment for Other Distributions.
If the Securities are initially convertible into Common Stock and
the Company distributes to all holders of its Common Stock any of its assets or
debt securities or any rights or warrants to purchase assets or debt securities
of the Company, the Conversion Rate shall be adjusted in accordance with the
following formula:
<PAGE> 34
-29-
AC = CC * ((O * M)/((O * M) - F))
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record date
mentioned below (which number shall include shares owned or held by or for
the account of the Company).
M = the current Market Price per share of Common Stock on the record date
mentioned below.
F = the fair market value on the record date of the assets, securities,
rights or warrants distributed. The Board of Directors of the Company
shall determine the fair market value.
The adjustment shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
If the securities into which the Securities are convertible are
other than Common Stock, any adjustments for such other distribution shall be
made as set forth in the Securities Resolution.
This Section does not apply to cash dividends or distributions or to
reclassifications or distributions referred to in Section 9.08. Also, this
Section does not apply to shares issued below Market Price referred to in
Section 9.09.
SECTION 9.11. Voluntary Adjustment.
The Company at any time may increase the Conversion Rate,
temporarily or otherwise, by any amount but in no event shall such Conversion
Rate result in the issuance of Capital Stock at a price less than the par value
of such Capital Stock at the time such increase is made.
SECTION 9.12. When Adjustment May Be Deferred.
No adjustment in the Conversion Rate need be made unless the
adjustment would require a change of at least 1% in the Conversion Rate. Any
adjustments that are not made due to the immediately preceding sentence shall be
carried forward and taken into account in any subsequent adjustment; provided,
that any adjustment carried forward shall be deferred not in excess of three
years, whereupon any adjustment to the Conversion Rate will be effected.
All calculations under this Article 9 shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
SECTION 9.13. When No Adjustment Required.
Except as set forth in Section 9.09, no adjustment in the Conversion
Rate shall be made because the Company issues, in exchange for cash, property or
services, shares of Common Stock, or any securi-
<PAGE> 35
-30-
ties convertible into shares of Common Stock, or securities carrying the right
to purchase shares of Common Stock or such convertible securities.
No adjustment in the Conversion Rate need be made for rights to
purchase or the sale of Common Stock pursuant to a Company plan providing for
reinvestment of dividends or interest.
No adjustment in the Conversion Rate need be made for a change in
the par value of the Common Stock or other securities having a par value.
No adjustment need be made for a transaction referred to in Section
9.08, 9.09 or 9.10 if Securityholders are to participate in the transaction on a
basis and with notice that the Board of Directors determines to be fair and
appropriate in light of the basis and notice on which holders of Common Stock or
other securities into which the Securities are convertible participate in the
transaction.
SECTION 9.14. Notice of Adjustment.
Whenever the Conversion Rate is adjusted, the Company shall promptly
mail to Holders of Securities affected a notice of the adjustment. The Company
shall file with the Trustee an Officers' Certificate or a certificate from the
Company's independent public accountants stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence that the adjustment is correct, absent manifest error.
SECTION 9.15. Notice of Certain Transactions.
If:
(1) the Company proposes to take any action that would require an
adjustment in the Conversion Rate.
(2) the Company proposes to take any action that would require a
supplemental indenture pursuant to Section 9.16, or
(3) there is a proposed liquidation or dissolution of the Company
or of the issuer of any other security into which the
Securities are convertible,
the Company shall mail to registered Holders of Securities of any affected
series a notice stating the proposed record date for a dividend or distribution
or the proposed effective date of a subdivision, combination, reclassification,
consolidation, merger, transfer, lease, liquidation or dissolution. The Company
shall mail the notice at least 15 days before such date. Failure to mail the
notice or any defect in it shall not affect the validity of the transaction.
SECTION 9.16. Reorganization of the Company.
If the Company is a party to a transaction subject to Section 5.01.
the successor corporation (if other than the Company) shall enter into a
supplemental indenture which shall provide that the Holder of a Security may
convert it into the kind and amount of securities, cash or other assets which he
would have owned immediately after the consolidation, merger or transfer if he
had converted the Security immediately before the effective date of the
transaction. The supplemental indenture shall provide for adjustments which
shall be as
<PAGE> 36
-31-
nearly equivalent as may be practical to the adjustments provided for in this
Article. The successor company shall mail to Holders of Securities of any
affected series a notice briefly describing the supplemental indenture.
If this Section applies, Sections 9.08, 9.09 and 9.10 do not apply.
ARTICLE 10 -- AMENDMENTS
SECTION 10.01. Without Consent of Holders.
The Company and the Trustee may amend this Indenture, the Securities
or any coupons without the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5 or Section 9.16;
(3) to provide that specific provisions of this Indenture shall
not apply to a series not previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or more series; or
(6) to make any change that does not materially adversely affect
the rights of any Securityholder.
SECTION 10.02. With Consent of Holders.
Unless the Securities Resolution otherwise provides, the Company and
the Trustee may amend this Indenture, the Securities and any coupons with the
written consent of the Holders of a majority in principal amount of the
Securities of all series affected by the amendment voting as one class; 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 remains outstanding, no such
amendment shall be made that adversely affects the holders of such preferred
securities in any material respect, and no termination of this 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 Securities of such
series and all accrued and unpaid interest thereon have been paid in full; and
provided further that, in the case 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 third paragraph of Section 6.06 of this
Indenture 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 Securities of such series and all accrued and unpaid interest thereon
have been paid in full. However, without the consent of each Securityholder
affected, an amendment under this Section may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment;
(2) reduce the interest on or change the time for payment of
interest on any Security;
<PAGE> 37
-32-
(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted Debt Security or
reduce the amount of principal of any Discounted Debt Security
that would be due upon an acceleration thereof;
(5) change the currency in which principal or interest on a
Security is payable;
(6) make any change that materially adversely affects the right to
convert or exchange any Security; or
(7) make any change in Section 6.04 or 10.02, except to increase
the amount of Securities whose Holders must consent to an
amendment or waiver or to provide that other provisions of
this Indenture cannot be amended or waived without the consent
of each Securityholder affected thereby.
An amendment of a provision included solely for the benefit of one
or more series does not affect Securityholders of any other series.
Securityholders need not consent to the exact text of a proposed
amendment or waiver; it is sufficient if they consent to the substance thereof.
SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment pursuant to Section 10.01 or 10.02 shall be set
forth in a supplemental indenture (except any amendment pursuant to Section
10.01(4), which may be set forth in a Securities Resolution) that complies with
the TIA.
If a provision of the TIA requires or permits a provision of this
Indenture and the TIA provision is amended, then the Indenture provision shall
be automatically amended to like effect.
SECTION 10.04. Effect of Consents.
An amendment or waiver becomes effective in accordance with its
terms and thereafter binds every Securityholder entitled to consent to it.
A consent to an amendment or waiver by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security that
evidences the same debt as the consenting Holder's Security. Any Holder or
subsequent Holder may revoke the consent as to his Security if the Trustee
receives notice of the revocation before the amendment or waiver becomes
effective.
The Company may fix a record date for the determination of Holders
of Registered Securities entitled to give a consent. The record date shall not
be less than 10 nor more than 60 days prior to the first written solicitation of
Securityholders.
<PAGE> 38
- 33 -
SECTION 10.05. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate notation about
an amendment or waiver on any Security thereafter authenticated. The Company may
issue in exchange for affected Securities new Securities that reflect the
amendment or waiver.
SECTION 10.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that adversely
affects its rights. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment or supplement or waiver
authorized pursuant to this Article is authorized or permitted by this
Indenture, and that such amendment or supplement or waiver constitutes the
legal, valid and binding obligation of the Company.
ARTICLE 11 -- MISCELLANEOUS
SECTION 11.01. Trust Indenture Act.
The provisions of TIA ss.ss. 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not expressly set forth herein.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 11.02. Notices.
Any notice by one party to another is duly given if in writing and
delivered in person, sent by facsimile transmission confirmed by mail or mailed
by first-class mail to the other's address shown below:
Company:
Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
Fax: (303) 526-5051
Attention: Chief Financial Officer
<PAGE> 39
-34-
Trustee:
The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670-0126
Fax: (312)407-1708
Attention: Corporate Trust Division
A party by notice to the other parties may designate additional or
different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed to his address
shown on the register kept by the Transfer Agent or on the list referred to in
Section 2.06. Failure to mail a notice to a Securityholder or any defect in a
notice mailed to a Securityholder shall not affect the sufficiency of the notice
mailed to other Securityholders or the sufficiency of any published notice.
If a notice is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice to Securityholders, it shall mail a
copy to the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a notice
required to be mailed or to publish a notice required to be published, the
Company may give such substitute notice as the Trustee approves. Failure to
publish a notice as required or any defect in it shall not affect the
sufficiency of any mailed notice.
All notices shall be in the English language, except that any
published notice may be in an official language of the country of publication.
A "notice" includes any communication required by this Indenture.
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall if so requested furnish
to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied
with.
SECTION 11.04. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
<PAGE> 40
-35-
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 11.05. Rules by Company and Agents.
The Company may make reasonable rules for action by or a meeting of
Securityholders. An Agent may make reasonable rules and set reasonable
requirements for its functions.
SECTION 11.06. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open. If a payment date is a Legal Holiday
at a place of payment, unless the Securities Resolution establishing a series
otherwise provides with respect to Securities of the series, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 11.07. No Recourse Against Others.
All liability described in the Securities of any director, officer,
employee or stockholder, as such, of the Company is waived and released.
SECTION 11.08. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 11.09. Governing Law.
The laws of the State of New York shall govern this Indenture, the
Securities and any coupons, unless federal law governs.
<PAGE> 41
S-1
SIGNATURES
Dated: April _ 1999 ATLAS AIR, INC.
By______________________________________
Name:
Title:
Dated: April _ 1999 THE FIRST NATIONAL BANK OF CHICAGO
By______________________________________
Name:
Title:
<PAGE> 42
EXHIBIT A
A Form of Registered Security
No. [$]
ATLAS AIR, INC.
[Title of Security]
ATLAS AIR, INC.
promises to pay to
or registered assigns
the principal sum of Dollars on ,
Interest Payment Dates:
Record Dates:
Dated:
THE FIRST NATIONAL BANK OF CHICAGO
Transfer Agent and Paying Agent
ATLAS AIR, INC.
By:_____________________________________
[Title of Authorized Officer]
By:_____________________________________
[Assistant] Secretary
(SEAL)
Authenticated:
THE FIRST NATIONAL BANK OF CHICAGO
Registrar
By:________________________________
Authorized Signature
A-1
<PAGE> 43
ATLAS AIR, INC.
[Title of Security]
[Explanatory Notes follow Exhibit B]
1. Interest.(1)
Atlas Air, Inc. ("Company"), a corporation organized and existing
under the laws of the State of Delaware, promises to pay interest on
the principal amount of this Security at the rate per annum shown
above. The Company will pay interest on and of each year
commencing , . Interest on the Securities will accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from , . Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.(2)
The Company will pay interest on the Securities to the persons who
are registered holders of Securities at the close of business on the
record date for the next interest payment date, except as otherwise
provided in the Indenture. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay
principal and interest in money of the United States that at the
time of payment is legal tender for payment of public and private
debts. The Company may pay principal and interest by check payable
in such money. It may mail an interest check to a holder's
registered address.
3. Securities Agents.
Initially, The First National Bank of Chicago, Attention: Corporate
Trust Division, will act as Paying Agent, Transfer Agent and
Registrar. The Company may change any Paying Agent or Transfer Agent
without notice or provide for more than one such agent. The Company
or any Affiliate may act in any such capacity. Subject to certain
conditions, the Company may change the Trustee.
4. Indenture.
The Company issued the securities of this series ("Securities")
under an Indenture dated as of , 1999 ("Indenture")
between the Company and The First National Bank of Chicago
("Trustee"). The terms of the Securities include those stated in the
Indenture and in the Securities Resolution creating the Securities
and those made part of the Indenture by the Trust Indenture Act of
1939 (15 U.S. Code ss.ss. 77aaa-77bbbb). Securityholders are
referred to the Indenture, the Securities Resolution and the Act for
a statement of such terms.
5. Optional Redemption.(3)
On or after , the Company may redeem all the
Securities at any time or some of them from time to time at the
following redemption prices (expressed in percentages of principal
amount), plus accrued interest to the redemption date.
If redeemed during the 12-month period beginning,
A-2
<PAGE> 44
Year Percentage Year Percentage
and thereafter at 100%.
6. Mandatory Redemption.(4)
The Company will redeem $ principal amount of Securities on
and on each thereafter through at a redemption
price of 100% of principal amount, plus accrued interest to the
redemption date.(5) The Company may reduce the principal amount of
Securities to be redeemed pursuant to this paragraph by subtracting
100% of the principal amount (excluding premium) of any Securities
(i) that the Company has acquired or that the Company has redeemed
other than pursuant to this paragraph and (ii) that the Company has
delivered to the Registrar for cancellation. The Company may so
subtract the same Security only once.
7. Additional Optional Redemption.(6)
In addition to redemptions pursuant to the above paragraph(s), the
Company may redeem not more than $ principal amount of Securities on
and on each thereafter through at a redemption price
of 100% of principal amount, plus accrued interest to the redemption
date.
8. Notice of Redemption.(7)
Notice of redemption will be mailed at least 30 but not more than 60
days before the redemption date to each holder of Securities to be
redeemed at his registered address.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice
of Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.
9. Conversion.(8)
A Holder of a Security may convert it into Common Stock of the
Company or cash, or a combination thereof, at the Company's option,
at any time before the close of business on ____________ or, if the
Security is called for redemption, the Holder may convert it at any
time before the close of business on the redemption date. The
initial Conversion Rate is ____________ (or an equivalent amount in
cash) per $1,000 principal amount of the Securities, subject to
adjustment as provided in Article 9 of the Indenture.(9) The Company
will deliver a check in lieu of any fractional share. On conversion
no payment or adjustment for interest accrued on the Securities will
be made nor for dividends on the Common Stock issued on conversion.
If any Security is converted between the record date for the payment
of interest and the next succeeding interest payment date, such
Security must be accompanied by funds equal to the interest payable
on such succeeding interest payment date on the principal amount so
convened (unless such Security shall have been called for
redemption, in which case no such payment shall be required). A
Security converted on an interest payment date
A-3
<PAGE> 45
need not be accompanied by any payment, and the interest on the
principal amount of the Security being converted will be paid on
such interest payment date to the registered holder of such Security
on the immediately preceding record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements
and transfer documents if required by the Registrar or Conversion
Agent and (4) pay any transfer or similar tax if required. A Holder
may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000.
10. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in
denominations of $1,000(10) and whole multiples of $1,000. The
transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Transfer Agent may
require a holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees
required by law or the Indenture. The Transfer Agent need not
exchange or register the transfer of any Security or portion of a
Security selected for redemption. Also, it need not exchange or
register the transfer of any Securities for a period of 15 days
before a selection of Securities to be redeemed.
11. Persons Deemed Owners.
The registered holder of a Security may be treated as its owner for
all purposes.
12. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities may
be amended with the consent of the holders of a majority in
principal amount of the securities of all series affected by the
amendment.(11) Subject to certain exceptions, a default on a series
may be waived with the consent of the holders of a majority in
principal amount of the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any
ambiguity, omission, defect or inconsistency; to provide for
assumption of Company obligations to Securityholders; or to make any
change that does not materially adversely affect the rights of any
Securityholder.
13. Restrictive Covenants.(12)
The Securities are unsecured general obligations of the Company
limited to $ principal amount. The Indenture does not limit
other unsecured debt.
14. Successors.
When a successor assumes all the obligations of the Company under
the Securities and the Indenture, the Company will be released from
those obligations.
A-4
<PAGE> 46
15. Defeasance Prior to Redemption or Maturity.(13)
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the
Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on
the Securities to redemption or maturity. U.S. Government
Obligations are securities backed by the full faith and credit of
the United States of America or certificates representing an
ownership interest in such Obligations.
16. Defaults and Remedies.
An Event of Default(14) includes: default for 30 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default in payment or satisfaction of any sinking fund
obligation; default by the Company for a specified period after
notice to it in the performance of any of its other agreements
applicable to the Securities; certain events of bankruptcy or
insolvency; and any other Event of Default provided for in the
series. If an Event of Default occurs and is continuing, the Trustee
or the holders of at least 25% in principal amount of the Securities
may declare the principal(15) of all the Securities to be due and
payable immediately.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, holders of a majority in
principal amount of the Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default
in payment of principal or interest) if it determines that
withholding notice is in their interests. The Company must furnish
an annual compliance certificate to the Trustee.
17. Trustee Dealings with Company.
The First National Bank of Chicago, the Trustee under the Indenture,
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.
18. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
19. Authentication.
This Security shall not be valid until authenticated by a manual
signature of the Registrar.
A-5
<PAGE> 47
20. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as: TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian),
U/G/M/A (=Uniform Gifts to Minors Act) and U/T/M/A (=Uniform
Transfers to Minors Act).
A-6
<PAGE> 48
EXHIBIT B
No. [$]
A Form of Bearer Security
ATLAS AIR, INC.
[Title of Security]
ATLAS AIR, INC.
promises to pay to
bearer
the principal sum of Dollars on ,
Interest Payment Dates:
Record Dates:
Dated:
THE FIRST NATIONAL BANK OF CHICAGO
Transfer Agent and Paying Agent
ATLAS AIR, INC.
By::___________________________________
[Title of Authorized Officer]
By::___________________________________
[Assistant] Secretary
(SEAL)
Authenticated:
THE FIRST NATIONAL BANK OF CHICAGO
Registrar
By:______________________________________
Authorized Signature
B-1
<PAGE> 49
ATLAS AIR, INC.
[Title of Security]
[Explanatory Notes follow Exhibit B]
1. Interest.(1)
ATLAS AIR, INC. ("Company"), a corporation organized and existing
under the laws of the State of Delaware, promises to pay to bearer
interest on the principal amount of this Security at the rate per
annum shown above. The Company will pay interest on and
of each year commencing , . Interest on the
Securities will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from , .
Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment.(2)
Holders must surrender Securities and any coupons to a Paying Agent
to collect principal and interest payments. The Company will pay
principal and interest in money of the United States that at the
time of payment is legal tender for payment of public and private
debts. The Company may pay principal and interest by check payable
in such money.
3. Securities Agents.
Initially, The First National Bank of Chicago, Attention: Corporate
Trust Division, will act as Transfer Agent, Paying Agent and
Registrar. The Company may change any Paying Agent or Transfer Agent
without notice or provide for more than one such agent. The Company
or any Affiliate may act in any such capacity. Subject to certain
conditions, the Company may change the Trustee.
4. Indenture.
The Company issued the securities of this series ("Securities")
under an Indenture dated as of , 1999 ("Indenture") between
the Company and The First National Bank of Chicago ("Trustee"). The
terms of the Securities include those stated in the Indenture and
the Securities Resolution and those made part of the Indenture by
the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb).
Securityholders are referred to the Indenture, the Securities
Resolution and the Act for a statement of such terms.
5. Optional Redemption.(3)
On or after , the Company may redeem all the Securities
at any time or some of them from time to time at the following
redemption prices (expressed in percentages of principal amount),
plus accrued interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
B-2
<PAGE> 50
and thereafter 100%.
6. Mandatory Redemption.(4)
The Company will redeem $ principal amount of Securities on
and on each thereafter through at a
redemption price of 100% of principal amount, plus accrued interest
to the redemption date.(5) The Company may reduce the principal
amount of Securities to be redeemed pursuant to this paragraph by
subtracting 100% of the principal amount (excluding premium) of any
Securities (i) that the Company has acquired or that the Company has
redeemed other than pursuant to this paragraph and (ii) that the
Company has delivered to the Registrar for cancellation. The Company
may so subtract the same Security only once.
7. Additional Optional Redemption.(6)
In addition to redemptions pursuant to the above paragraph(s), the
Company may redeem not more than $ principal amount of
Securities on and on each thereafter through
at a redemption price of 100% of principal amount, plus
accrued interest to the redemption date.
8. Notice of Redemption.(7)
Notice of redemption will be published once in an Authorized
Newspaper in the City of New York and if the Securities are listed
on any stock exchange located outside the United States and such
stock exchange so requires, in any other required city outside the
United States at least 30 but not more than 60 days before the
redemption date. Notice of redemption also will be mailed to holders
who have filed their names and addresses with the Transfer Agent
within the two preceding years. A holder of Securities may miss
important notices if he fails to maintain his name and address with
the Transfer Agent.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice
of Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.
9. Conversion.(8)
A Holder of a Security may convert it into Common Stock of the
Company or cash, or a combination thereof, at the Company's option,
at any time before the close of business on ____________ or, if the
Security is called for redemption, the Holder may convert it at any
time before the close of business on the redemption date. The
initial Conversion Rate is ____________ (or an equivalent amount in
cash) per $1,000 principal amount of the Securities, subject to
adjustment as provided in Article 9 of the Indenture.(9) The Company
will deliver a check in lieu of any fractional share. On conversion
no payment or adjustment for interest accrued on the Securities will
be made nor for dividends on the Common Stock issued on conversion.
If any Security is converted between the record date for the payment
of interest and the next succeeding interest payment date, such
Security must be accompanied by
B-3
<PAGE> 51
funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such
Security shall have been called for redemption, in which case no
such payment shall be required). A Security converted on an interest
payment date need not be accompanied by any payment, and the
interest on the principal amount of the Security being converted
will be paid on such interest payment date to the registered holder
of such Security on the immediately preceding record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements
and transfer documents if required by the Registrar or Conversion
Agent and (4) pay any transfer or similar tax if required. A Holder
may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000.
10. Denominations, Transfer, Exchange.
The Securities are in bearer form with coupons in denominations of
$5,000(10) and whole multiples of $5,000. The Securities may be
transferred by delivery and exchanged as provided in the Indenture.
Upon an exchange, the Transfer Agent may require a holder, among
other things, to furnish appropriate documents and to pay any taxes
and fees required by law or the Indenture. The Transfer Agent need
not exchange any Security or portion of a Security selected for
redemption. Also, it need not exchange any Securities for a period
of 15 days before a selection of Securities to be redeemed.
11. Persons Deemed Owners.
The holder of a Security or coupon may be treated as its owner for
all purposes.
12. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities may
be amended with the consent of the holders of a majority in
principal amount of the securities of all series affected by the
amendment.(11) Subject to certain exceptions, a default on a series
may be waived with the consent of the holders of a majority in
principal amount of the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any
ambiguity, omission, defect or inconsistency; to provide for
assumption of Company obligations to Securityholders; or to make any
change that does not materially adversely affect the rights of any
Securityholder.
13. Restrictive Covenants.(12)
The Securities are unsecured general obligations of the Company
limited to $ principal amount. The Indenture does not limit
other unsecured debt.
B-4
<PAGE> 52
14. Successors.
When a successor assumes all the obligations of the Company under
the Securities, any coupons and the Indenture, the Company will be
released from those obligations.
15. Defeasance Prior to Redemption or Maturity.(13)
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities, any coupons and
the Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on
the Securities to redemption or maturity. U.S. Government
Obligations are securities backed by the full faith and credit of
the United States of America or certificates representing an
ownership interest in such Obligations.
16. Defaults and Remedies.
An Event of Default(14) includes: default for 30 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default in payment or satisfaction of any sinking fund
obligation; default by the Company for a specified period after
notice to it in the performance of any of its other agreements
applicable to the Securities; certain events of bankruptcy or
insolvency; and any other Event of Default provided for in the
series. If an Event of Default occurs and is continuing, the Trustee
or the holders of at least 25% in principal amount of the Securities
may declare the principal(15) of all the Securities to be due and
payable immediately.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, holders of a majority in
principal amount of the Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default
in payment of principal or interest) if it determines that
withholding notice is in their interests. The Company must furnish
annual compliance certificates to the Trustee.
17. Trustee Dealings with Company.
The First National Bank of Chicago, the Trustee under the Indenture,
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.
18. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
B-5
<PAGE> 53
19. Authentication.
This Security shall not be valid until authenticated by a manual
signature of the Registrar.
20. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as: TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian),
U/G/M/A (=Uniform Gifts to Minors Act) and U/T/M/A (=Uniform
Transfers to Minors Act).
B-6
<PAGE> 54
...........
[$]........
Due........
ATLAS AIR, INC.
[Title of Security]
Unless the Security attached to this coupon has been called for
redemption, Atlas Air, Inc. ("Company") will pay to bearer, upon surrender, the
amount shown hereon when due. This coupon may be surrendered for payment to any
Paying Agent listed on the back of this coupon unless the Company has replaced
such Agent. Payment may be made by check. This coupon represents months'
interest.
ATLAS AIR, INC.
By______________________________________
[REVERSE OF COUPON]
PAYING AGENTS
B-7
<PAGE> 55
NOTES TO EXHIBITS A AND B
1 If the Security is not to bear interest at a fixed rate per annum, insert
a description of the manner in which the rate of interest is to be
determined. If the Security is not to bear interest prior to maturity, so
state.
2 If the method or currency of payment is different, insert a statement
thereof.
3 If applicable. If the Security is to be subject to a nonrefunding
restriction, insert a brief summary thereof. If the redemption is to be
subject to a condition, insert a brief summary thereof.
4 Such provisions as are applicable, if any.
5 If the Security is a Discounted Debt Security, insert amount to be
redeemed or method of calculating such amount.
6 If applicable. Also insert, if applicable, provisions for repayment of
Securities at the option of the Securityholder.
7 If applicable.
8 If applicable. If convertible into securities other than Common Stock,
insert appropriate summary.
9 If additional or different adjustment provisions apply so specify.
10 If applicable. Insert additional or different denominations and terms as
appropriate.
11 If different terms apply, insert a brief summary thereof.
12 If applicable. If additional or different covenants apply, insert a brief
summary thereof.
13 If applicable. If different defeasance terms apply, insert a brief summary
thereof.
14 If additional or different Events of Default apply, insert a brief summary
thereof.
15 If the Security is a Discounted Debt Security, set forth the amount due
and payable upon an Event of Default.
Note: U.S. tax law may require certain legends on Discounted Debt and Bearer
Securities.
<PAGE> 56
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
__________________________________________________
: :
:__________________________________________________:
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint __________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Date:_______________________ Your Signature:___________________________________
___________________________________
(Sign exactly as your name(s) appear(s) on the other side of this Security)
Signature(s) guaranteed by:_____________________________________________________
(All signatures must be guaranteed by an
"eligible guarantor institution" as defined by
Rule l7Ad-15 of the Securities Exchange Act of
1934, as amended)
C-1
<PAGE> 57
EXHIBIT D
CONVERSION NOTICE
To convert this Security, check the box:
|_|
To convert only part of this Security, state the amount
(must be in integral multiples of $l,000);
$_____________________________________
If you want the securities delivered upon conversion made
out in another person's name, fill in the form below:
(Insert other person's Social Security or Tax I.D. Number)
______________________________________
______________________________________
______________________________________
______________________________________
(Print or type other person's name, address and zip code
Date: ______________ Signature(s):_____________________________________
_______________________________________
(Sign exactly as your name(s)
appear(s) on the other side of this
Security)
Signature(s) guaranteed by:____________________________________________
(All signatures must be
guaranteed by an "eligible guarantor
institution" as defined by Rule l7Ad-15 of the
Securities Exchange Act of 1934, as amended)
D-1
<PAGE> 1
EXHIBIT 4.3
TRUST AGREEMENT
This Trust Agreement, dated as of April 22, 1999 (the "Trust
Agreement"), among Atlas Air, Inc., a Delaware corporation, as "Depositor",
Stephen Nevin, The First National Bank of Chicago, a national banking
association, and First Chicago Delaware Inc. a Delaware corporation, as
"Trustees." The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as Atlas Air
Capital I (the "Trust"), in which name the Trustees, or the Depositor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trust the sum of $10, which amount shall constitute the initial
trust estate. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor and the Trustees will enter into an amended
and restated Trust Agreement, satisfactory to each such party and substantially
in the form included as Exhibit 4.3 to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the preferred securities (the "Preferred Securities")
and common securities referred to therein. Prior to the execution and delivery
of such amended and restated Trust Agreement, the Trustees shall not have any
duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain, prior to
such execution and delivery, any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or
<PAGE> 2
-2-
post-effective amendments to such 1933 Act Registration Statement (including the
prospectus and the exhibits contained therein), relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and certain other securities and (b) a Registration Statement on Form
8-A)(the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange (the "Exchange")
and execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on the Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws, as the Depositor, on behalf of the Trust, may deem necessary
or desirable and (iv) to negotiate the terms of and execute on behalf of the
Trust one or more Underwriting Agreements among the Trust, the Depositor and any
one or more underwriters relating to the offering of the Preferred Securities.
In the event that any filing referred to in clauses (i) through (iii) above is
required by the rules and regulations of the Commission, the Exchange or any
other national stock exchange or state securities or Blue Sky laws, to be
executed on behalf of the Trust by the Trustees, in their capacities as Trustees
of the Trust, the Trustees are hereby authorized and directed to join in any
such filing and to execute on behalf of the Trust any and all of the foregoing,
it being understood that The First National Bank of Chicago and First Chicago
Delaware Inc., in their capacities as Trustees of Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the Exchange or
any other national stock exchange or state securities or Blue Sky laws. In
connection with all of the foregoing, the Depositor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Richard H.
Shuyler and Stephen C. Nevin, and each of them, as his, her or its, as the case
may be, true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or in the Depositor's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement and to file the same, with all exhibits
thereto,
<PAGE> 3
-3-
and other documents in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. A Trustee may resign upon thirty days' prior notice to the
Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee,
shall not have any of the powers or duties of the Trustees set forth herein
(except as may be required under the Business Trust Act) and shall be a Trustee
of the Trust for the sole purpose of satisfying the requirements of Section
3807(a) of the Business Trust Act.
8. The Trust may be dissolved and terminated before the
issuance of the Preferred Securities at the election of the Depositor.
9. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
<PAGE> 4
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
ATLAS AIR, INC., as Depositor
By: /s/ Stephen Nevin
------------------------------------------
Name: Stephen Nevin
Title: Vice President and Chief Financial Officer
Stephen Nevin, as Trustee
/s/ Stephen Nevin
----------------------------------------------
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
<PAGE> 1
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, with the Secretary of
State of the State of Delaware to form a business trust under the Delaware
Business Trust Act (12 Del. C. ss. 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
<PAGE> 1
EXHIBIT 4.5
TRUST AGREEMENT
This Trust Agreement, dated as of April 22, 1999 (the "Trust
Agreement"), among Atlas Air, Inc., a Delaware corporation, as "Depositor",
Stephen Nevin, The First National Bank of Chicago, a national banking
association, and First Chicago Delaware Inc. a Delaware corporation, as
"Trustees." The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as Atlas Air
Capital II (the "Trust"), in which name the Trustees, or the Depositor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trust the sum of $10, which amount shall constitute the initial
trust estate. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor and the Trustees will enter into an amended
and restated Trust Agreement, satisfactory to each such party and substantially
in the form included as Exhibit 4.3 to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the preferred securities (the "Preferred Securities")
and common securities referred to therein. Prior to the execution and delivery
of such amended and restated Trust Agreement, the Trustees shall not have any
duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain, prior to
such execution and delivery, any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or
<PAGE> 2
-2-
post-effective amendments to such 1933 Act Registration Statement (including the
prospectus and the exhibits contained therein), relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and certain other securities and (b) a Registration Statement on Form
8-A)(the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange (the "Exchange")
and execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on the Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws, as the Depositor, on behalf of the Trust, may deem necessary
or desirable and (iv) to negotiate the terms of and execute on behalf of the
Trust one or more Underwriting Agreements among the Trust, the Depositor and any
one or more underwriters relating to the offering of the Preferred Securities.
In the event that any filing referred to in clauses (i) through (iii) above is
required by the rules and regulations of the Commission, the Exchange or any
other national stock exchange or state securities or Blue Sky laws, to be
executed on behalf of the Trust by the Trustees, in their capacities as Trustees
of the Trust, the Trustees are hereby authorized and directed to join in any
such filing and to execute on behalf of the Trust any and all of the foregoing,
it being understood that The First National Bank of Chicago and First Chicago
Delaware Inc., in their capacities as Trustees of Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the Exchange or
any other national stock exchange or state securities or Blue Sky laws. In
connection with all of the foregoing, the Depositor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Richard H.
Shuyler and Stephen C. Nevin, and each of them, as his, her or its, as the case
may be, true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or in the Depositor's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement and to file the same, with all exhibits
thereto,
<PAGE> 3
-3-
and other documents in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. A Trustee may resign upon thirty days' prior notice to the
Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee,
shall not have any of the powers or duties of the Trustees set forth herein
(except as may be required under the Business Trust Act) and shall be a Trustee
of the Trust for the sole purpose of satisfying the requirements of Section
3807(a) of the Business Trust Act.
8. The Trust may be dissolved and terminated before the
issuance of the Preferred Securities at the election of the Depositor.
9. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
<PAGE> 4
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
ATLAS AIR, INC., as Depositor
By: /s/ Stephen Nevin
------------------------------------------
Name: Stephen Nevin
Title: Vice President and Chief Financial Officer
Stephen Nevin, as Trustee
/s/ Stephen Nevin
----------------------------------------------
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
<PAGE> 1
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, with the Secretary of
State of the State of Delaware to form a business trust under the Delaware
Business Trust Act (12 Del. C. ss. 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
<PAGE> 1
EXHIBIT 4.7
TRUST AGREEMENT
This Trust Agreement, dated as of April 22, 1999 (the "Trust
Agreement"), among Atlas Air, Inc., a Delaware corporation, as "Depositor",
Stephen Nevin, The First National Bank of Chicago, a national banking
association, and First Chicago Delaware Inc. a Delaware corporation, as
"Trustees." The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as Atlas Air
Capital III (the "Trust"), in which name the Trustees, or the Depositor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trust the sum of $10, which amount shall constitute the initial
trust estate. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor and the Trustees will enter into an amended
and restated Trust Agreement, satisfactory to each such party and substantially
in the form included as Exhibit 4.3 to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the preferred securities (the "Preferred Securities")
and common securities referred to therein. Prior to the execution and delivery
of such amended and restated Trust Agreement, the Trustees shall not have any
duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain, prior to
such execution and delivery, any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or
<PAGE> 2
-2-
post-effective amendments to such 1933 Act Registration Statement (including the
prospectus and the exhibits contained therein), relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and certain other securities and (b) a Registration Statement on Form
8-A)(the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange (the "Exchange")
and execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on the Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws, as the Depositor, on behalf of the Trust, may deem necessary
or desirable and (iv) to negotiate the terms of and execute on behalf of the
Trust one or more Underwriting Agreements among the Trust, the Depositor and any
one or more underwriters relating to the offering of the Preferred Securities.
In the event that any filing referred to in clauses (i) through (iii) above is
required by the rules and regulations of the Commission, the Exchange or any
other national stock exchange or state securities or Blue Sky laws, to be
executed on behalf of the Trust by the Trustees, in their capacities as Trustees
of the Trust, the Trustees are hereby authorized and directed to join in any
such filing and to execute on behalf of the Trust any and all of the foregoing,
it being understood that The First National Bank of Chicago and First Chicago
Delaware Inc., in their capacities as Trustees of Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the Exchange or
any other national stock exchange or state securities or Blue Sky laws. In
connection with all of the foregoing, the Depositor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Richard H.
Shuyler and Stephen C. Nevin, and each of them, as his, her or its, as the case
may be, true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or in the Depositor's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement and to file the same, with all exhibits
thereto,
<PAGE> 3
-3-
and other documents in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. A Trustee may resign upon thirty days' prior notice to the
Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee,
shall not have any of the powers or duties of the Trustees set forth herein
(except as may be required under the Business Trust Act) and shall be a Trustee
of the Trust for the sole purpose of satisfying the requirements of Section
3807(a) of the Business Trust Act.
8. The Trust may be dissolved and terminated before the
issuance of the Preferred Securities at the election of the Depositor.
9. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
<PAGE> 4
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
ATLAS AIR, INC., as Depositor
By: /s/ Stephen Nevin
------------------------------------------
Name: Stephen Nevin
Title: Vice President and Chief Financial Officer
Stephen Nevin, as Trustee
/s/ Stephen Nevin
----------------------------------------------
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
<PAGE> 1
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, with the Secretary of
State of the State of Delaware to form a business trust under the Delaware
Business Trust Act (12 Del. C. ss. 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
<PAGE> 1
Exhibit 23.1
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated
February 22, 1999 included in Atlas Air, Inc.'s Form 10-K for the year ended
December 31, 1998 and to all references to our Firm included in this
Registration Statement.
/s/ Arthur Andersen LLP
-----------------------
Denver, Colorado,
April 26, 1999
<PAGE> 1
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------------
ATLAS AIR, INC.
(Exact name of obligor as specified in its charter)
Delaware 84-1207329
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
538 Commons Drive
Golden, Colorado 80401
(Address of principal executive offices) (Zip Code)
Debt Securities
Guarantees by Atlas Air, Inc. of Preferred Securities of Atlas Air Capital I,
II and III
(Title of Indenture Securities)
<PAGE> 2
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington D.C..
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 21st day of April, 1999.
The First National Bank of Chicago,
Trustee
By /s/ Sandra L. Caruba
---------------------------------------
Sandra L. Caruba
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 21, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Indenture by and between Atlas Air,
Inc. and The First National Bank of Chicago, as Trustee, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ Sandra L. Caruba
---------------------------------------
Sandra L. Caruba
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1) ................ 0081 5,585,982 1.a
b. Interest-bearing balances(2) ......................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) ......... 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to
resell .................................................................. 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C) ................................................................... 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses ............................ 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve ................................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c) ................................. 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D) ..................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) ................ 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) ............................ 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .......................................... 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding ............ 2155 269,516 9.
10. Intangible assets (from Schedule RC-M) .................................. 2143 291,665 10.
11. Other assets (from Schedule RC-F) ....................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11) ................................ 2170 74,200,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) .......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1) ........................................... 6631 10,141,937 13.a1
(2) Interest-bearing ................................................ 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II) ................................... 2200 19,691,237 13.b
(1) Noninterest bearing .............................................. 6631 408,126 13.b1
(2) Interest-bearing ................................................. 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: .......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury ............................. RCON 2840 120,599 15.a
b. Trading Liabilities(from Sechedule RC-D) ............................. RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less ........................... 2332 5,385,355 16.a
b. With original maturity of more than one year. ....................... A547 327,126 16.b
c. With original maturity of more than three years ...................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ................. 2920 269,516 18.
19. Subordinated notes and debentures ....................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) .................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20) .......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ........................... 3838 0 23.
24. Common stock ............................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ................ 3839 3,201,435 25.
26. a. Undivided profits and capital reserves ............................... 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ........................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ..................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ....................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ................................... 3300 74,200,906 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number auditors as of any date during
1996 ..........................RCFD 6724 ............ N/A Number
M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE> 1
Exhibit 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
----------------------
ATLAS AIR CAPITAL I
(Exact name of obligor as specified in its trust agreement)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
c/o Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
(Address of principal executive offices) (Zip Code)
Preferred Securities
(Title of Indenture Securities)
<PAGE> 2
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington D.C..
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 21st day of April, 1999.
The First National Bank of Chicago,
Trustee
By /s/ Sandra L. Caruba
---------------------------------------
Sandra L. Caruba
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 21, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of Atlas Air Capital I, the undersigned, The First National Bank of
Chicago, as Trustee, the undersigned, in accordance with Section 321(b) of the
Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ Sandra L. Caruba
---------------------------------------
Sandra L. Caruba
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1) ................ 0081 5,585,982 1.a
b. Interest-bearing balances(2) ......................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) ......... 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to
resell .................................................................. 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C) ................................................................... 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses ............................ 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve ................................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c) ................................. 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D) ..................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) ................ 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) ............................ 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .......................................... 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding ............ 2155 269,516 9.
10. Intangible assets (from Schedule RC-M) .................................. 2143 291,665 10.
11. Other assets (from Schedule RC-F) ....................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11) ................................ 2170 74,200,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) .......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1) ........................................... 6631 10,141,937 13.a1
(2) Interest-bearing ................................................ 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II) ................................... 2200 19,691,237 13.b
(1) Noninterest bearing .............................................. 6631 408,126 13.b1
(2) Interest-bearing ................................................. 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: .......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury ............................. RCON 2840 120,599 15.a
b. Trading Liabilities(from Sechedule RC-D) ............................. RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less ........................... 2332 5,385,355 16.a
b. With original maturity of more than one year. ....................... A547 327,126 16.b
c. With original maturity of more than three years ...................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ................. 2920 269,516 18.
19. Subordinated notes and debentures ....................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) .................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20) .......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ........................... 3838 0 23.
24. Common stock ............................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ................ 3839 3,201,435 25.
26. a. Undivided profits and capital reserves ............................... 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ........................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ..................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ....................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ................................... 3300 74,200,906 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number auditors as of any date during
1996 ..........................RCFD 6724 ............ N/A Number
M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE> 1
Exhibit 25.4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
----------------------
ATLAS AIR CAPITAL II
(Exact name of obligor as specified in its trust agreement)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
c/o Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
(Address of principal executive offices) (Zip Code)
Preferred Securities
(Title of Indenture Securities)
<PAGE> 2
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington D.C..
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 21st day of April, 1999.
The First National Bank of Chicago,
Trustee
By /s/ Sandra L. Caruba
---------------------------------------
Sandra L. Caruba
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 21, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of Atlas Air Capital II, the undersigned, The First National Bank of
Chicago, as Trustee, the undersigned, in accordance with Section 321(b) of the
Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ Sandra L. Caruba
---------------------------------------
Sandra L. Caruba
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1) ................ 0081 5,585,982 1.a
b. Interest-bearing balances(2) ......................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) ......... 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to
resell .................................................................. 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C) ................................................................... 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses ............................ 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve ................................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c) ................................. 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D) ..................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) ................ 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) ............................ 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .......................................... 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding ............ 2155 269,516 9.
10. Intangible assets (from Schedule RC-M) .................................. 2143 291,665 10.
11. Other assets (from Schedule RC-F) ....................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11) ................................ 2170 74,200,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) .......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1) ........................................... 6631 10,141,937 13.a1
(2) Interest-bearing ................................................ 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II) ................................... 2200 19,691,237 13.b
(1) Noninterest bearing .............................................. 6631 408,126 13.b1
(2) Interest-bearing ................................................. 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: .......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury ............................. RCON 2840 120,599 15.a
b. Trading Liabilities(from Sechedule RC-D) ............................. RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less ........................... 2332 5,385,355 16.a
b. With original maturity of more than one year. ....................... A547 327,126 16.b
c. With original maturity of more than three years ...................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ................. 2920 269,516 18.
19. Subordinated notes and debentures ....................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) .................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20) .......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ........................... 3838 0 23.
24. Common stock ............................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ................ 3839 3,201,435 25.
26. a. Undivided profits and capital reserves ............................... 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ........................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ..................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ....................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ................................... 3300 74,200,906 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number auditors as of any date during
1996 ..........................RCFD 6724 ............ N/A Number
M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE> 1
Exhibit 25.5
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
----------------------
ATLAS AIR CAPITAL III
(Exact name of obligor as specified in its trust agreement)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
c/o Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
(Address of principal executive offices) (Zip Code)
Preferred Securities
(Title of Indenture Securities)
<PAGE> 2
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington D.C..
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 21st day of April, 1999.
The First National Bank of Chicago,
Trustee
By /s/ Sandra L. Caruba
---------------------------------------
Sandra L. Caruba
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 21, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of Atlas Air Capital III, the undersigned, The First National Bank of
Chicago, as Trustee, the undersigned, in accordance with Section 321(b) of the
Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ Sandra L. Caruba
---------------------------------------
Sandra L. Caruba
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1) ................ 0081 5,585,982 1.a
b. Interest-bearing balances(2) ......................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) ......... 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to
resell .................................................................. 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C) ................................................................... 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses ............................ 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve ................................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c) ................................. 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D) ..................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) ................ 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) ............................ 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .......................................... 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding ............ 2155 269,516 9.
10. Intangible assets (from Schedule RC-M) .................................. 2143 291,665 10.
11. Other assets (from Schedule RC-F) ....................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11) ................................ 2170 74,200,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) .......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1) ........................................... 6631 10,141,937 13.a1
(2) Interest-bearing ................................................ 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II) ................................... 2200 19,691,237 13.b
(1) Noninterest bearing .............................................. 6631 408,126 13.b1
(2) Interest-bearing ................................................. 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: .......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury ............................. RCON 2840 120,599 15.a
b. Trading Liabilities(from Sechedule RC-D) ............................. RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less ........................... 2332 5,385,355 16.a
b. With original maturity of more than one year. ....................... A547 327,126 16.b
c. With original maturity of more than three years ...................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ................. 2920 269,516 18.
19. Subordinated notes and debentures ....................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) .................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20) .......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ........................... 3838 0 23.
24. Common stock ............................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ................ 3839 3,201,435 25.
26. a. Undivided profits and capital reserves ............................... 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ........................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ..................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ....................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ................................... 3300 74,200,906 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number auditors as of any date during
1996 ..........................RCFD 6724 ............ N/A Number
M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
