<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 4, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
ATLAS AIR, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 4731 84-1207329
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
538 COMMONS DRIVE
GOLDEN, COLORADO 80401
(303) 526-5050
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL 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.
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. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
TITLE OF EACH CLASS AMOUNT TO PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED BE REGISTERED(1) AGGREGATE OFFERING PRICE(1) REGISTRATION FEE(2)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Pass Through Certificates........................
Debt Securities..................................
Common Stock..................................... $650,000,000 $650,000,000 $180,700
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) 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 $650,000,000. If any Debt
Securities, Pass Through Certificates or Common Stock 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.
$650,000,000.
(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.
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, ACTION PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
EXPLANATORY NOTE
This Registration Statement contains two separate forms of prospectuses, one
prospectus to be used in connection with offerings of Debt Securities and Common
Stock, and the other prospectus to be used in connection with offerings of Pass
Through Certificates.
<PAGE> 3
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 FEBRUARY 4, 1999
PROSPECTUS
ATLAS AIR, INC.
DEBT SECURITIES
COMMON STOCK
-------------------------
This Prospectus relates to the issuance of unsecured debt securities ("Debt
Securities") and shares of common stock, $.01 par value per share (the "Common
Stock" and, collectively with the Debt Securities, the "Securities"), by Atlas
Air, Inc. ("Atlas" or the "Company") and, in the case of Common Stock, may
include sales by certain of our stockholders.
ISSUANCE OF SECURITIES:
- -- Securities may be periodically offered;
- -- 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 of Debt Securities (or, in the case of
Debt Securities issued at a discount, initial offering price) and initial
offering price of the Common Stock will not exceed U.S. $650,000,000 (or the
equivalent in foreign currencies or currency units).
FORMS THAT DEBT SECURITIES MAY TAKE:
- -- Registered form;
- -- Bearer form; or
- -- Global form.
This Prospectus is accompanied by a Prospectus Supplement which includes
additional information as to a particular series of Debt Securities or the
Common Stock. Sales of Securities may not be consummated without both this
Prospectus and a Prospectus Supplement. The Common Stock and the Debt 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> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More
Information...................... 1
Incorporation of Certain Documents
by Reference..................... 1
The Company........................ 2
Use of Proceeds.................... 2
Ratio of Earnings to Fixed
Charges.......................... 2
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Description of Debt Securities..... 3
Selling Stockholders............... 10
Plan of Distribution............... 10
Validity of the Securities......... 11
Experts............................ 12
</TABLE>
i
<PAGE> 5
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 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 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.
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, 1997, as amended;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998;
3. The Company's Current Report on Form 8-K dated February 4, 1999; and
4. 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
1
<PAGE> 6
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.
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 China Airlines Ltd., British Airways World Cargo, Scandinavian Airlines
System, The International Airline of the United Arab Emirates, Thai Airways
International Public Company Limited, Fast Air Carrier, S.A., Lineas Aereas
Suramericanas, S.A., Cargolux Airlines International, S.A., Linee Aeree Italiane
S.p.A., Iberia Airlines of Spain, El Al Israel Airlines Ltd. and Federal Express
Corporation. 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.
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,
2
<PAGE> 7
"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, 1993, 1994,
1995, 1996 and 1997 and the nine months ended September 30, 1997 and 1998.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
- -------------------------------- -------------
1993 1994 1995 1996 1997 1997 1998
- ---- ---- ---- ---- ---- ----- -----
<S> <C> <C> <C> <C> <C> <C>
(1) 1.21 1.86 2.11 1.30 1.29 1.21
</TABLE>
- -------------------------
(1) Earnings were insufficient to cover fixed charges by $9,411,000 for the year
ended December 31, 1993.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the "Indenture") between
the Company and State Street Bank and Trust Company, as Trustee (the "Trustee"),
a form of which is incorporated by reference as an exhibit to the Registration
Statement. The following summaries of certain provisions of the Indenture do not
purport to be complete and are subject to, and qualified in their entirety by
reference to, all of the provisions of the Indenture, including the definitions
therein of certain terms capitalized in this Prospectus. Wherever particular
Sections or Articles or defined terms of the Indenture are referred to herein or
in a Prospectus Supplement, such Sections or defined terms are incorporated
herein or therein by reference.
The Debt Securities may be issued from time to time in one or more series. The
particular terms of each series of Debt Securities offered by any Prospectus
Supplement or Prospectus Supplements will be described in such Prospectus
Supplement or Prospectus Supplements relating to such series.
All references to the Debt Securities under this caption refer to Debt
Securities issued in fully registered form without coupons. However, the
Indenture permits the issuance of Debt Securities in bearer form with or without
coupons attached. If any of the Debt Securities are issued in bearer form, the
Prospectus Supplement relating to such Debt Securities in bearer form will
describe the terms and provisions of, and the tax considerations relating to,
such Debt Securities in bearer form.
GENERAL
The Indenture does not limit the aggregate amount of Debt Securities which may
be issued thereunder, and Debt Securities may be issued thereunder from time to
time in separate series up to the aggregate amount from time to time authorized
by the Company for each series. The Debt Securities will be unsecured and
unsubordinated obligations of the Company and will rank equally and ratably with
other unsecured and unsubordinated indebtedness of the Company.
The applicable Prospectus Supplement or Prospectus Supplements will describe the
following terms of the series of Debt Securities ("Offered Securities") in
respect of which
3
<PAGE> 8
this Prospectus is being delivered: (1) the title of the Offered Securities; (2)
any limit on the aggregate principal amount of the Offered Securities; (3)
whether the Offered Securities are to be issuable in registered form or bearer
form, or both; (4) whether any of the Offered Securities are to be issuable in
whole or in part initially in temporary global form and whether any of the
Offered Securities are to be issuable in permanent global form and, if so, the
terms and conditions, if any, upon which interests in such Offered Securities in
global form may be exchanged, in whole or in part, for the individual Debt
Securities represented thereby; (5) the person to whom any interest on any
Offered Security of the series shall be payable if other than the person in
whose name the Debt Security is registered on the Regular Record Date; (6) the
date or dates on which the Offered Securities will mature; (7) the rate or rates
at which the Offered Securities will bear interest, if any; (8) the date or
dates from which any such interest will accrue, the Interest Payment Dates on
which any such interest on the Offered Securities will be payable and the
Regular Record Date for any Interest Payment Date; (9) each office or agency
where the principal of, or premium, if any, and interest on the Offered
Securities will be payable and each office or agency where the Offered
Securities may be presented for registration of transfer or exchange; (10) the
period or periods within which, the events upon the occurrence of which, and the
price or prices at which, the Offered Securities may, pursuant to any optional
or mandatory provisions, be redeemed or purchased, in whole or in part, by the
Company and any terms and conditions relevant thereto; (11) the obligation of
the Company, if any, to redeem or repurchase the Debt Securities at the option
of the Holders; (12) the denominations in which any Offered Securities will be
issuable, if other than denominations of $1,000 and any integral multiple
thereof; (13) the currency or currencies, including composite currencies, of
payment or principal of and any premium and interest on the Offered Securities
if other than U.S. dollars and whether the Company or the Holders may elect to
receive payments in respect of the Debt Securities in a coin or currency other
than that in which the Debt Securities are stated to be payable; (14) any index
or formula used to determine the amount of payments of principal of and any
premium and interest on the Offered Securities; (15) if other than the principal
amount thereof, the portion of the principal amount of the Offered Securities of
the series which will be payable upon declaration of the acceleration of the
Maturity thereof; (16) any addition to, or modification or deletion of, any
Event of Default or any covenant of the Company specified in the Indenture with
respect to such Debt Securities; (17) the applicability of the provisions
described under "Defeasance"; and (18) any other terms of the Offered Securities
not inconsistent with the provisions of the Indenture (Section 301).
Debt Securities may be issued at a discount from their principal amount. Federal
income tax consequences and other special considerations applicable to any such
Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a foreign
currency or currencies or a foreign currency unit or units or if the principal
of, premium, if any, and interest on any series of Debt Securities is payable in
a foreign currency or currencies or a foreign currency unit or units, the
restrictions, elections, general tax considerations, specific terms and other
information with respect to such issue of Debt Securities and such foreign
currency or currencies or foreign currency unit or units will be set forth in
the applicable Prospectus Supplement.
Unless otherwise indicated in the applicable Prospectus Supplement, the Debt
Securities will not have the benefit of any covenants that afford Holders of the
Debt Securities protection in the event of a highly leveraged or other
transaction involving the Company that may adversely affect Holders of Debt
Securities.
4
<PAGE> 9
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment of
principal, premium, if any, and interest on the Debt Securities will be payable,
and the exchange of and the transfer of Debt Securities will be registrable, at
the office or agency of the Company in Golden, Colorado maintained for such
purpose and at any other office or agency maintained for such purpose, except
that, at the option of the Company, interest may be paid by mailing a check to
the address of the Person entitled thereto as it appears on the Security
Register. (Section 301, 305 and 1002) Unless otherwise indicated in the
applicable Prospectus Supplement, the Debt Securities will be issued in
denominations of $1,000 or integral multiples thereof. (Section 302) No service
charge will be made for any registration or transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge imposed in connection therewith. (Section 305)
All monies paid by the Company to a Paying Agent for the payment of principal
or, premium, if any, or interest on any Debt Security which remain unclaimed for
two years after such principal, premium or interest has become due and payable
may be repaid to the Company and thereafter the Holder of such Debt Security may
look only to the Company for payment thereof. (Section 1003)
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or more Global
Securities that will be deposited with a Depositary or its nominee identified in
the applicable Prospectus Supplement. In such a case, one or more Global
Securities will be issued in a denomination or aggregate denominations equal to
the portion of the aggregate principal amount of Outstanding Debt Securities of
the series to be represented by such Global Security or Securities. Unless and
until it is exchanged in whole or in part for Debt Securities in registered
form, a Global Security may not be registered for transfer or exchange except as
a whole by the Depositary for such Global Security to a nominee of such
Depositary and except in the circumstances described in the applicable
Prospectus Supplement. (Section 204 and 305)
The specific terms of the depositary arrangement with respect to any portion of
a series of Debt Securities to be represented by a Global Security will be
described in the applicable Prospectus Supplement. The Company expects that the
following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such Depository or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interest in such Global Security will be limited to participants or Persons that
may hold interest through participants. Ownership of beneficial interests by
participants in such Global Security will be shown on, and the transfer of that
ownership interest will be effected only through, records
5
<PAGE> 10
maintained by the Depositary or its nominees for such Global Security. Ownership
of beneficial interests in such Global Security by Persons that hold through
participants will be shown on, and the transfer of that ownership interest
within such participant will be effected only through, records maintained by
such participant. The laws of some jurisdictions require that certain purchasers
of securities take physical delivery of such securities in certificated form.
The foregoing limitations and such laws may impair the ability to transfer
beneficial interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will considered the sole owner or Holder of the Debt Securities
otherwise represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certificated form and will not be
considered the Holders thereof for any purposes under the Indenture. (Section
204 and 305) Accordingly, each Person owning a beneficial interest in such
Global Security must rely on the procedures of the Depositary and, if such
Person is not a participant, on the procedures of the participant through which
such Person owns its interest, to exercise any rights of a Holder under the
Indenture. Payments, transfers, exchanges and other matters relating to
beneficial interests in a Global Security may be subject to various policies and
procedures adopted by the Depositary from time to time. None of the Company, the
Trustee or any agent of the Company or the Trustee will have any responsibility
or liability for any aspect of the Depositary's or any participant's records
relating to, or for payments made on account of, beneficial interests in a
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
The Indenture provides that the Depositary may grant proxies and otherwise
authorize participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a Holder is entitled to
give or take under the Indenture. (Section 104) The Company understands that
under existing industry practices, if the Company requests any action of Holders
or an owner of a beneficial interest in such Global Security desires to give any
notice or take any action a Holder is entitled to give or take under the
Indenture, the Depositary would authorize the participants to give such notice
or take such action, and participants would authorize beneficial owners owning
through such participants to give such notice or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Principal of, premium, if any, and interest on a Global Security will be payable
in the manner described in the applicable Prospectus Supplement.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus Supplement, the
following are Events of Default under the Indenture with respect to Debt
Securities of any series: (a) failure to pay principal of or premium, if any, on
any Debt Security of that series when due, continued for five Business Days; (b)
failure to pay any interest on any Debt Security of that series when due,
continued for 30 days; (c) failure to perform any other covenant of the Company
in the Indenture (other than a covenant included in the Indenture solely for the
benefit of a series of Debt Securities other than that series), continued for 60
days after written notice as provided in the Indenture; (d) a default under
6
<PAGE> 11
any evidence of indebtedness for money borrowed by the Company or a Restricted
Subsidiary (including a default with respect to Debt Securities of any other
series) or under any instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by the
Company or a Restricted Subsidiary (including the Indenture), whether such
indebtedness exists as of the date of the Indenture or is thereafter created,
which default (i) results from the failure by the Company or any Restricted
Subsidiary to pay the principal amount due upon the final stated maturity of
such indebtedness in an amount in excess of $20 million after the expiration of
any applicable grace period, or (ii) results in the acceleration of such
indebtedness in an amount in excess of $20 million, in either case, without such
indebtedness having been discharged, or such acceleration having been rescinded
or annulled, within 10 days, after written notice to the Company by the Trustee
or by the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of such series as provided in the Indenture; (e) certain events of
bankruptcy, insolvency or reorganization; and (f) any other Event of Default
provided with respect to Debt Securities of that series. (Section 501) If an
Event of Default with respect to Outstanding Debt Securities of any series shall
occur and be continuing, either the Trustee or the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that series by notice as
provided in the Indenture may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
Debt Securities of that series or such specified amount to be due an payable
immediately. However, at any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment or
decree based on such acceleration has been obtained, the Holders of a majority
in principal amount of the Outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration. (Section 502) For
information as to waiver of defaults, see "Modification and Waiver" below.
The Indenture provides that, subject to the duty of the Trustee during an Event
of Default to act with the required standard of care, the Trustee will be under
no obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable security or indemnity. (Sections 601 and 603)
Subject to certain provisions, including those requiring security or
indemnification of the Trustee, the Holders of a majority in principal amount of
the Outstanding Debt Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of that series. (Section 512)
No holder of a Debt Security of any series will have any right to initiate any
proceeding with respect to the Indenture, or for the appointment of a receiver
or a trustee, or for any other remedy thereunder, unless (i) such Holder has
previously given to the Trustee written notice of a continuing Event of Default
with respect to the Debt Securities of that series, (ii) the Holders of at least
25% in aggregate principal amount of the Outstanding Debt Securities of that
series have made written request, and such Holder or Holders have offered
reasonable indemnity to the Trustee, to institute such proceeding as trustee and
(iii) the Trustee has failed to institute such proceeding, and has not received
from the Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of that series a direction inconsistent with such request,
within 60 days after such notice, request and offer. (Section 507) However, such
limitations do not apply to a suit instituted
7
<PAGE> 12
by a Holder of a Security for the enforcement of payment of the principal of, or
premium, if any, or interest on such Security on or after the applicable due
date specified in such Debt Security. (Section 508)
The Company will be required to furnish to the Trustee annually a statement as
to the performance by the Company of its obligations under the Indenture and as
to any default in such performance. (Section 1004) The Indenture provides that
the Trustee may withhold notice to the Holders of the Debt Securities of any
series of the default (except in the case of a default in the payment of the
principal of, premium, if any, or interest on any Debt Securities of such series
or in the payment of any sinking fund installment with respect to Debt
Securities of such series) if the Trustee considers it in the interest of the
Holders of the Debt Securities to do so. (Section 602)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and the
Trustee with the consent of the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of each series affected thereby;
provided, however, that no such modification or amendment may, without the
consent of the Holder of each Outstanding Debt Security affected thereby: (a)
change the Stated Maturity of the principal of, or any installment of principal
of, or interest on, any Debt Security; (b) (unless otherwise provided in the
applicable Prospectus Supplement) reduce the principal amount of, the rate of
interest on, or the premium, if any, payable upon the redemption of, any Debt
Security; (c) reduce the amount of principal or an Original Issue Discount
Security payable upon acceleration of the Maturity thereof; (d) change the place
or currency of payment of principal of, premium, if any, or interest on any Debt
Security; (e) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security; or (f) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
the Holders of which is required for modification or amendment of the Indenture
or for waiver of compliance with certain provisions of the Indenture or for
waiver of certain defaults. (Section 902)
The Holders of not less than a majority in principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all Debt
Securities of that series waive, insofar as that series is concerned, compliance
by the Company with certain covenants of the Indenture. (Section 1006) The
Holders of not less than a majority in principal amount of the Outstanding Debt
Securities of any series may, on behalf of the Holders of all Debt Securities of
that series, waive any past default under the Indenture with respect to that
series, except a default in the payment of the principal of, premium, if any, or
interest on, any Debt Security of that series or in respect of a provision which
under the Indenture cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of that series affected. (Section 513)
Without the consent of any Holder of Outstanding Debt Securities, the Company
and the Trustee may amend the Indenture to cure any ambiguity, omission, defect
or inconsistency, to provide for the assumption by a successor corporation,
partnership, trust or limited liability company of the obligations of the
Company under the Indenture, to provide for uncertificated Debt Securities in
addition to or in place of certificated Debt Securities (provided that the
uncertificated Debt Securities are issued in registered form for purposes of
Section 163(f) of the Internal Revenue Code of 1986, as amended (the "Code"), or
in a manner such that the uncertificated Debt Securities are described in
Section 163(f)(2)(B) of the Code), to secure the Debt Securities, to add to the
covenants
8
<PAGE> 13
of the Company for the benefit of the holders or to surrender any right or power
conferred upon the Company, to make any change that does not adversely affect
the rights of any Holder or to comply with any requirement of the Commission in
connection with the qualification of the Indenture under the Trust Indenture Act
of 1939, as amended (the "Indenture Act").
Except in certain limited circumstances, the Company will be entitled to set any
day as a record date for the purpose of determining the Holders of Outstanding
Debt Securities of any series entitled to give or take any direction, notice,
consent, waiver or other action under the Indenture, in the manner and subject
to the limitations provided in the Indenture.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any Holders of Outstanding Debt Securities,
may consolidate with or merge into, or transfer or lease its assets
substantially as an entirety to, any Person, and any other Person may
consolidate with or merge into, or transfer or lease its assets substantially as
an entirety to, the Company, provided (a) that the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or
which acquires or leases the assets of the Company substantially as an entirety
is a Person organized and existing under the laws of any United States
jurisdiction and assumes the Company's obligations on the Debt Securities and
under the Indenture, (b) that after giving effect to such transaction no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing, and (c) that
certain other conditions are met. (Article Eight)
DEFEASANCE
Unless otherwise indicated in the applicable Prospectus Supplement with respect
to the Debt Securities of a series, the Company, at its option, (i) will be
discharged from any and all obligations in respect of the Debt Securities of
such series (except for certain obligations to register the transfer or exchange
of Debt Securities of such series, to replace stolen, lost or mutilated Debt
Securities of such series, and to maintain paying agents and hold moneys for
payment in trust) or (ii) need not comply with any covenants that are specified
in a Prospectus Supplement, and the occurrence of an event described under
clause (c) with respect to any defeased covenant and clause (d) of the "Events
of Default" shall no longer be an Event of Default if, in each case, the Company
deposits with the Trustee, in trust, money or U.S. Government Obligations that
through the payment of interest thereon and principal thereof in accordance with
their terms will provide money in an amount sufficient to pay all the principal
of (and premium, if any) and any interest on the Debt Securities of such series
on the dates such payments are due (which may include one or more redemption
dates designated by the Company) in accordance with the terms of such Debt
Securities. Such a trust may only be established 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 the Indenture shall have occurred
and be continuing on the date of such deposit, (b) in the event of a defeasance
of the type described in clause (i) above, no Event of Default described under
clause (e) of "Events of Default" above or event which with the giving of notice
or lapse of time, or both, would become an Event of Default described under such
clause (e) shall have occurred and be continuing at any time during the period
ending on the 91st day following such date of deposit, and (c) the Company shall
have delivered an Opinion of Counsel to the effect that the Holders of the Debt
Securities will not recognize income, gain or loss
9
<PAGE> 14
for federal income tax purposes as a result of such deposit or defeasance and
will be subject to federal income tax in the same manner as if such defeasance
had not occurred.
In the event the Company omits to comply with its remaining obligations under
the Indenture after a defeasance of the Indenture with respect to the Debt
Securities of any series as described under clause (ii) above and the Debt
Securities of such series are declared due and payable because of the occurrence
of any undefeased Event of Default, the amount of money and U.S. Government
Obligations on deposit with the Trustee may be insufficient to pay amounts due
on the Debt Securities of such series at the time of the acceleration resulting
from such Event of Default. However, the Company will remain liable in respect
of such payments. (Article Thirteen)
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York. (Section 112)
REGARDING THE TRUSTEE
The Trustee and certain of its affiliates are the trustees under a number of
other indentures qualified under the Indenture Act, in respect of which the
Company is the obligor with respect to certain unsecured debt securities and are
the trustees under a number of indentures qualified under the Indenture Act in
respect of which the Company is the lessee of the equipment that constitutes the
collateral for the debt obligations issued pursuant to such indentures.
Affiliates of the Trustee are also the trustees under one or more indentures
with the Company that have not been qualified under the Indenture Act. Upon the
occurrence of an Event of Default, or any event of default under such other
indenture, the Trustee may be deemed to have a conflicting interest with respect
to the Securities for purposes of the Indenture Act and, accordingly, may be
required to resign as Trustee under the Indenture.
The Indenture contains certain limitations on the right of the Trustee, should
it become a creditor of the Company, to obtain payment of claims in certain
cases, or to realize for its own account on certain property received in respect
of any such claim as security or otherwise. (Section 613) The Trustee will be
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest it must eliminate such conflict or resign. (Section 608)
SELLING STOCKHOLDERS
Some of the shares of Common Stock being offered pursuant to this Prospectus 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 with respect to shares of Common Stock, the selling
stockholders) may sell the Securities to or through underwriters and also may
sell Debt Securities directly to other purchasers or through agents.
10
<PAGE> 15
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, 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 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 underwriters,
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, the validity
of the Securities offered hereby will be passed upon for the Company by Cahill
Gordon & Reindel (a partnership including a professional corporation), New York,
New York.
11
<PAGE> 16
EXPERTS
The audited consolidated financial statements and schedule 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 reports with respect thereto, and are incorporated herein in
reliance upon the authority of said firm as experts in giving said reports.
12
<PAGE> 17
SUBJECT TO COMPLETION, DATED FEBRUARY 4, 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
-- 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
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.
<PAGE> 18
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More
Information................. 1
Incorporation of Certain
Documents by Reference...... 1
The Company................... 2
General Outline Of Trust
Structure................... 2
Use of Proceeds............... 3
Risk Factors.................. 4
Ratio of Earnings to Fixed
Charges..................... 5
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Description of the
Certificates................ 6
Description of the Equipment
Notes....................... 19
Certain United States Federal
Income Tax Consequences..... 24
ERISA Considerations.......... 28
Plan of Distribution.......... 28
Validity of the
Certificates................ 29
Experts....................... 30
</TABLE>
i
<PAGE> 19
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, 1997, as amended;
2. The Company's Current Report on Form 8-K dated February 4, 1999; and
3. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 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.
1
<PAGE> 20
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 China Airlines Ltd., British Airways World Cargo, Scandinavian Airlines
System, The International Airline of the United Arab Emirates, Thai Airways
International Public Company Limited, Fast Air Carrier, S.A., Lineas Aereas
Suramericanas, S.A., Cargolux Airlines International, S.A., Linee Aeree Italiane
S.p.A., Iberia Airlines of Spain, El Al Israel Airlines Ltd. and Federal Express
Corporation. 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
2
<PAGE> 21
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 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
3
<PAGE> 22
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.
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
4
<PAGE> 23
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
5
<PAGE> 24
presents the ratio of earnings to fixed charges for the years ended December 31,
1993, 1994, 1995, 1996 and 1997 and the nine months ended September 30, 1997 and
1998.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
-------------------------------------------- --------------
1993 1994 1995 1996 1997 1997 1998
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
(1) 1.21 1.86 2.11 1.30 1.29 1.21
</TABLE>
- -------------------------
(1) Earnings were insufficient to cover fixed charges by $9,411,000 for the year
ended December 31, 1993.
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
6
<PAGE> 25
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.
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
7
<PAGE> 26
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 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
8
<PAGE> 27
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.
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.
9
<PAGE> 28
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 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
10
<PAGE> 29
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
11
<PAGE> 30
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 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.
12
<PAGE> 31
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.
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
13
<PAGE> 32
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.
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
14
<PAGE> 33
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.
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
15
<PAGE> 34
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
16
<PAGE> 35
Trustee of payments on the Equipment Notes held in such Trust or distributions
in respect of any Certificate related to such 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
17
<PAGE> 36
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
purchase 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
18
<PAGE> 37
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
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.
19
<PAGE> 38
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 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
20
<PAGE> 39
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 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
21
<PAGE> 40
(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
22
<PAGE> 41
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
connection 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.
23
<PAGE> 42
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.
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
24
<PAGE> 43
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.
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
25
<PAGE> 44
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 income 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.
26
<PAGE> 45
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.
27
<PAGE> 46
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
Certificates may be sold to one or more underwriters for public offering and
sale by them or to investors or other persons directly or through one or more
dealers or agents. Any such underwriter, dealer or agent involved in the offer
and sale of the Certificates will be named in an applicable Prospectus
Supplement.
The Certificates may be sold at a fixed price or prices, which may be changed,
or from time to time at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. Dealer trading
may take place in certain of the Certificates, including Certificates not listed
on any securities exchange. Atlas does not intend to apply for listing of the
Certificates on a national securities exchange. Atlas also may, from time to
time, authorize underwriters acting as Atlas' agents to offer and sell the
Certificates upon the terms and conditions as shall be set forth in any
Prospectus Supplement. In connection with the sale of Certificates, underwriters
may be deemed to have received compensation from Atlas in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of Certificates for whom they may act as agent. Underwriters may sell
Certificates to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions (which may be changed from time to time) from the purchasers for
whom they may act as agent.
If a dealer is used directly by Atlas in the sale of Certificates in respect of
which this Prospectus is delivered, such Certificates will be sold to the
dealer, as principal. The dealer may then resell such Certificates to the public
at varying prices to be determined by such dealer at the time of resale. Any
such dealer and the terms of any such sale will be set forth in the Prospectus
Supplement relating thereto.
Certificates may be offered and sold through agents designated by Atlas from
time to time. Any such agent involved in the offer or sale of the Certificates
in respect of which this Prospectus is delivered will be named in, and any
commission payable by Atlas to such agent will be set forth in, the applicable
Prospectus Supplement. Unless otherwise indicated in the applicable Prospectus
Supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
Offers to purchase Certificates may be solicited directly by Atlas and sales
thereof may be made by Atlas 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.
28
<PAGE> 47
The terms of any such sales will be described in the Prospectus Supplement
relating thereto. Except as set forth in the applicable Prospectus Supplement,
no director, officer or employee of Atlas will solicit or receive a commission
in connection with direct sales by Atlas of the Certificates, although such
persons may respond to inquiries by potential purchasers and perform ministerial
and clerical work in connection with any such direct sales.
Any underwriting compensation paid by Atlas to underwriters, dealers or agents
in connection with the offering of Certificates, and any discounts, concessions
or commissions allowed by underwriters to participating dealers, will be set
forth in an applicable Prospectus Supplement. Underwriters, dealers and agents
participating in the distribution of the Certificates may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Certificates may be deemed to be underwriting
discounts and commissions under the Securities Act. Underwriters, dealers and
agents may be entitled, under agreements with Atlas, to indemnification against
and contribution toward certain civil liabilities, including liabilities under
the Securities Act, and to reimbursement by Atlas for certain expenses.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, Atlas and its subsidiaries in the ordinary course of business.
If so indicated in an applicable Prospectus Supplement and subject to existing
market conditions, Atlas will authorize dealers acting as Atlas' agents to
solicit offers by certain institutions to purchase Certificates at the public
offering price set forth in such Prospectus Supplement pursuant to Delay
Delivery Contracts ("Contracts") providing for payment and delivery on the date
or dates stated in such Prospectus Supplement. Each Contract will be for an
amount not less than, and the aggregate principal amount of Certificates sold
pursuant to Contracts shall not be less nor more than, the respective amounts
stated in such Prospectus Supplement. Institutions with whom Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and other institutions, but will in all cases be subject to the
approval of Atlas. Contracts will not be subject to any conditions except the
purchase by an institution of the Certificates covered by its Contracts shall
not at the time of delivery be prohibited under the laws of any jurisdiction in
the United States to which such institution is subject. A commission indicated
in the applicable Prospectus Supplement will be granted to underwriters and
agents soliciting purchases of Certificates pursuant to Contracts accepted by
Atlas. Agents and underwriters will have no responsibility in respect of the
delivery or performance of Contracts.
If an underwriter or underwriters are utilized in the sale of any Certificates,
the applicable Prospectus Supplement will contain a statement as to the
intention, if any, of such underwriters at the date of such Prospectus
Supplement to make a market in the Certificates. No assurances can be given that
there will be a market for the Certificates.
The place and time of delivery for the Certificates in respect of which this
Prospectus is delivered will be set forth in the applicable Prospectus
Supplement.
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 &
29
<PAGE> 48
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 audited consolidated financial statements and schedule 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 reports with respect thereto and are incorporated herein in
reliance upon the authority of said firm as experts in giving said reports.
30
<PAGE> 49
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................................................ $180,700
Printing and engraving expenses...................... 100,000
Trustee and agents' fees and expenses................ 10,000
Accountant's fees and expenses....................... 35,000
Rating Agency fees................................... 50,000
Legal fees and expenses.............................. 85,000
Miscellaneous........................................ 39,300
--------
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.
II-1
<PAGE> 50
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS SCHEDULES.
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE
NUMBER DOCUMENT DESCRIPTION
--------- --------------------
<C> <S>
1.1 -- Form of Underwriting Agreement relating to the Shares.
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 State Street
Bank and Trust Company, as Trustee (with form of Debt
Security attached as exhibit thereto).
5.1 -- Opinion of Cahill Gordon & Reindel as to the legality of
the Shares.
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.
+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.
</TABLE>
II-2
<PAGE> 51
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE
NUMBER DOCUMENT DESCRIPTION
--------- --------------------
<C> <S>
**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.
</TABLE>
II-3
<PAGE> 52
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE
NUMBER DOCUMENT DESCRIPTION
--------- --------------------
<C> <S>
**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.
</TABLE>
II-4
<PAGE> 53
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE
NUMBER DOCUMENT DESCRIPTION
--------- --------------------
<C> <S>
**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.
</TABLE>
II-5
<PAGE> 54
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE
NUMBER DOCUMENT DESCRIPTION
--------- --------------------
<C> <S>
++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
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.
</TABLE>
II-6
<PAGE> 55
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE
NUMBER DOCUMENT DESCRIPTION
--------- --------------------
<C> <S>
++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).
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 State Street Bank
and Trust Company, as Trustee for the Debt Securities.
</TABLE>
- ---------------
++ 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-1 (No. 33-90304).
++ 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).
II-7
<PAGE> 56
* 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 Registrant hereby undertakes:
(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 pursuant 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.
II-8
<PAGE> 57
(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 registrant's 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 registrant hereby undertakes 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 registrant hereby undertakes 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 registrant hereby undertakes 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 controlling 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-9
<PAGE> 58
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, and State of Colorado, on the 4th day of
February, 1999.
ATLAS AIR, INC.
By: /s/ RICHARD H. SHUYLER
------------------------------------
Name: Richard H. Shuyler
Title: Executive Vice
President -- Strategic
Planning, Treasurer and
Director
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<C> <S> <C>
/s/ MICHAEL A. CHOWDRY Chairman of the Board, Chief February 4, 1999
- --------------------------------------------- Executive Officer, President and
Michael A. Chowdry Director
/s/ RICHARD H. SHUYLER Executive Vice February 4, 1999
- --------------------------------------------- President -- Strategic Planning,
Richard H. Shuyler Treasurer and Director
/s/ STEPHEN C. NEVIN Vice President and Chief Financial February 4, 1999
- --------------------------------------------- Officer
Stephen C. Nevin
/s/ BERL BERNHARD Director February 4, 1999
- ---------------------------------------------
Berl Bernhard
/s/ LAWRENCE W. CLARKSON Director February 4, 1999
- ---------------------------------------------
Lawrence W. Clarkson
/s/ DAVID K.P. LI Director February 4, 1999
- ---------------------------------------------
David K.P. Li
</TABLE>
II-10
<PAGE> 59
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<C> <S> <C>
/s/ DAVID T. MCLAUGHLIN Director February 4, 1999
- ---------------------------------------------
David T. McLaughlin
/s/ BRIAN ROWE Director February 4, 1999
- ---------------------------------------------
Brian Rowe
</TABLE>
II-11
<PAGE> 60
EXHIBITS TO FINANCIAL STATEMENTS
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE
NUMBER DOCUMENT DESCRIPTION
--------- --------------------
<C> <S>
1.1 -- Form of Underwriting Agreement relating to the Shares.
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 State Street
Bank and Trust Company, as Trustee (with form of Debt
Security attached as exhibit thereto).
5.1 -- Opinion of Cahill Gordon & Reindel as to the legality of
the Shares.
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.
+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.
</TABLE>
<PAGE> 61
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE
NUMBER DOCUMENT DESCRIPTION
--------- --------------------
<C> <S>
**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.
</TABLE>
<PAGE> 62
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE
NUMBER DOCUMENT DESCRIPTION
--------- --------------------
<C> <S>
**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.
**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.
</TABLE>
<PAGE> 63
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE
NUMBER DOCUMENT DESCRIPTION
--------- --------------------
<C> <S>
++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
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.
</TABLE>
<PAGE> 64
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE
NUMBER DOCUMENT DESCRIPTION
--------- --------------------
<C> <S>
++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).
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 State Street Bank
and Trust Company, as Trustee for the Debt Securities.
</TABLE>
<PAGE> 65
- ---------------
++ 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-1 (No. 33-90304).
++ 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).
* Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-1 (No. 333-2810).
** Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-4 (No. 333-36305).
*** Incorporated by reference to the exhibits to the Company's Annual Report
for 1996 on Form 10-K.
**** Portions of this document, for which the Company has been granted
confidential treatment, have been redacted and filed separately with the
Securities and Exchange Commission.
***** Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-4 (No. 333-56391).
<PAGE> 1
EXHIBIT 1.1
[Form of Equity Underwriting Agreement]
_____ Shares
ATLAS AIR, INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
, 1999
<PAGE> 2
FORM OF
UNDERWRITING AGREEMENT
, 1999
[UNDERWRITERS ADDRESSES]
Dear Ladies and Gentlemen:
Atlas Air, Inc., a Delaware corporation (the "COMPANY"), proposes to issue
and sell to the several Underwriters (as defined below), and certain
stockholders of the Company (the "SELLING STOCKHOLDERS") named in Schedule I
hereto severally propose to sell to the several Underwriters, an aggregate of
_____ shares of the Common Stock, par value $0.01 per share of the Company (the
"FIRM SHARES"), of which ______ shares are to be issued and sold by the Company
and _____ shares are to be sold by the Selling Stockholders, each Selling
Stockholder selling the amount set forth opposite such Selling Stockholder's
name in Schedule I hereto. The Company and the Selling Stockholders are
hereinafter sometimes collectively referred to as the "SELLERS".
It is understood that, subject to the conditions hereinafter stated,
________ Firm Shares (the "U.S. FIRM SHARES") will be sold to the several U.S.
Underwriters named in Schedule II hereto (the "U.S. UNDERWRITERS") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and ____ Firm Shares (the "INTERNATIONAL SHARES") will be sold to the several
International Underwriters named in Schedule III hereto (the "INTERNATIONAL
UNDERWRITERS") in connection with the offering and sale of such International
Shares outside the United States and Canada to persons other than United States
and Canadian Persons.
<PAGE> 3
-2-
[ ] shall act as representatives (the "U.S. REPRESENTATIVES") of the
several U.S. Underwriters, and [ ] shall act as representatives (the
"INTERNATIONAL REPRESENTATIVES") of the several International Underwriters. The
U.S. Underwriters and the International Underwriters are hereinafter
collectively referred to as the "UNDERWRITERS".
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional ____ shares of its Common Stock, par
value $0.01 per share (the "COMPANY ADDITIONAL SHARES") if and to the extent
that the U.S. Representatives shall have determined to exercise, on behalf of
the U.S. Underwriters, the right to purchase such shares of common stock granted
to the U.S. Underwriters in Section 3 hereof. In addition, on the terms and
subject to the conditions in Section 3 hereof, the Selling Stockholders propose
to sell to the several U.S. Underwriters not more than an additional _____
shares of the Company's Common Stock, par value $0.01 per share (the "SELLING
STOCKHOLDERS' ADDITIONAL SHARES") if and to the extent that the U.S.
Representatives shall have determined to exercise, on behalf of the U.S.
Underwriters, the right to purchase such shares of common stock granted to the
U.S. Underwriters in Section 3 hereof. The Company Additional Shares and the
Selling Stockholders' Additional Shares are hereinafter collectively referred to
as the "ADDITIONAL SHARES". The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "SHARES". The shares of Common
Stock, par value $0.01 per share, of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the
"COMMON STOCK".
1. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) The Company presently meets, and has met at all times since the initial
filing referred to below, the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such form,
which has become effective, for the registration under the Act of the Shares.
Such registration statement, as amended at the date of the Agreement, meets
the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in
all other material respects with said Rule. The Company proposes to file with
the Commission pursuant to Rule 424 under the Act two supple-
<PAGE> 4
-3-
ments to the form of prospectus included in the registration statement
relating to the Shares and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with respect to
the Company to be set forth therein. The U.S. prospectus supplement to be used
in connection with the offering and sale of Shares in the United States and
Canada to United States and Canadian Persons, and the international prospectus
supplement, to be used in connection with the offering and sale of Shares
outside the United States and Canada to persons other than United States and
Canadian Persons. The international prospectus supplement is substantially
identical to the U.S. prospectus supplement except for the outside front cover
page. Such registration statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic Prospectus"; and such
supplemented forms of prospectus, in the form in which it shall be first filed
with the Commission pursuant to Rule 424 (including the Basic Prospectus as
supplemented) are hereinafter called collectively the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been filed
pursuant to Rule 424 is hereinafter called the "Preliminary Final Prospectus."
Any reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934
(the "Exchange Act") on or before the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms "amend,"
"amendment" or supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective
<PAGE> 5
-4-
(including the filing of any document incorporated by reference in the
Registration Statement), when any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date, (i) the Registration Statement,
as amended as of any such time and the Final Prospectus, as amended or
supplemented as of any such time will comply in all material respects with the
applicable requirements of the Act, and the Exchange Act and the respective
rules thereunder and (ii) neither the Registration Statement, as amended as of
any such time, nor the Final Prospectus, as amended or supplemented as of any
such time, will contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided, however, that the
Company makes no representations or warranties as to the information contained
in or omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in the Registration Statement
or the Final Prospectus.
(c) This Agreement has been duly authorized, executed and delivered by the
Company.
(d) The consolidated financial statements included in the Registration
Statement present fairly the consolidated financial position of the Company
and its subsidiaries as of the dates indicated and the consolidated results of
its operations and the consolidated cash flows of the Company and its
subsidiaries for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods involved.
(e) The Company is duly organized, validly existing and in good standing as
a corporation under the laws of the State of Delaware with corporate power and
authority under such laws to own, lease and operate its properties and conduct
its business as described in the Final Prospectus; and the Company is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in the United States in which the Company
owns or leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the failure
to so qualify or be in good standing would not have a mate-
<PAGE> 6
-5-
rial adverse effect on the Company. The Company is an "air carrier" and a
"citizen of the United States" within the meaning of that portion of the
United States Code comprising those provisions formerly referred to as the
Federal Aviation Act of 1958, and now primarily codified in Title 49 of the
United States Code, as amended (the "Aviation Act") and holds an "air carrier
operating certificate issued by the Secretary of Transportation" within the
meaning of 11 U.S.C.Section 1110.
(f) Each of the Company's significant subsidiaries (as such term is defined
in Rule 1-02(w) of Regulation S-X of the rules and regulations promulgated
under the Act) (each a "Subsidiary" and, collectively, the "Subsidiaries") is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation with corporate power and
authority under such laws to own, lease and operate its properties and conduct
its business; and each Subsidiary is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a type,
that would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material adverse
effect on the Company and the Subsidiaries, considered as one enterprise. All
of the outstanding shares of capital stock of each Subsidiary have been duly
authorized and validly issued and are fully paid and non-assessable and are
owned by the Company free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind other than as set forth in
the Final Prospectus.
(g) At the date indicated, the authorized, issued and outstanding capital
stock of the Company is as set forth in the Final Prospectus under the caption
"Capitalization"; the Shares conform to the description thereof contained in
the Final Prospectus and such description conforms to the rights set forth in
the instruments defining the same.
(h) The Shares to be purchased by the Underwriters from the Company have
been duly authorized and, when issued and paid for in accordance with this
Agreement, will be validly issued, fully paid and non-assessable; no holder
thereof will be subject to personal liability by reason of being such a
holder; such Shares are not subject
<PAGE> 7
-6-
to the preemptive rights of any stockholder of the Company; and all
corporate action required to be taken for the authorization, issue and sale of
such Shares has been validly and sufficiently taken.
(i) All of the other outstanding shares of capital stock of the Company,
including the Shares to be purchased by the Underwriters from the Selling
Stockholders, have been duly authorized and validly issued and are fully paid
and non-assessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder; and none of the outstanding shares
of capital stock of the Company, including the Shares to be purchased by the
Underwriters from the Selling Stockholders, was issued in violation of the
preemptive rights of any stockholder of the Company.
(j) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, except as otherwise stated
therein or contemplated thereby, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings or business affairs
of the Company and its Subsidiaries, considered as one enterprise, whether or
not arising in the ordinary course of business, (B) any transaction entered
into by the Company or any Subsidiary, other than in the ordinary course of
business, that is material to the Company and the Subsidiaries, considered as
one enterprise, (C) any dividend or distribution of any kind declared, paid or
made by the Company on its capital stock, or (D) any restriction in the
operation of any of the Company's or any Subsidiary's aircraft, including as a
result of action by the Federal Aviation Administration or the Department of
Transportation.
(k) Neither the Company nor any Subsidiary is in default in the performance
or observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it is bound or to
which any of its properties is subject, except for such defaults that would
not have a material adverse effect on the condition (financial or otherwise),
earnings or business affairs of the Company and the Subsidiaries, considered
as one enterprise. The execution and delivery of this Agreement by the
Company, the issuance and delivery of the Shares, the consummation by the
Company of the transactions contemplated in this
<PAGE> 8
-7-
Agreement and in the Registration Statement and compliance by the Company
with the terms of this Agreement have been duly authorized by all necessary
corporate action on the part of the Company and do not and will not result in
any violation of the charter or by-laws of any Company or any Subsidiary, and
do not and will not conflict with, or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any Subsidiary under (A) any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which the
Company or any Subsidiary is a party or by which it is bound or to which any
of its properties is subject (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a material adverse
effect on the condition (financial or otherwise), earnings or business affairs
of the Company and the Subsidiaries, considered as one enterprise) or (B) any
existing applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their respective
properties.
(l) No authorization, approval, consent or license of any government,
governmental instrumentality or court, domestic or foreign (other than under
the Act and the securities or blue sky laws of the various states), is
required for the valid authorization, issuance, sale and delivery of the
Shares.
(m) Except as disclosed in the Final Prospectus, there is no action, suit
or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the Company,
threatened against or to the knowledge of the Company affecting the Company or
any Subsidiary, that is required to be disclosed in the Final Prospectus or
that could result in any material adverse change in the condition (financial
or otherwise), earnings or business affairs of the Company, or that could
materially and adversely affect the properties or assets of the Company and
any Subsidiaries, considered as one enterprise, or that could materially and
adversely affect the consummation of the transactions contemplated in this
Agreement.
(n) There are no contracts or documents of a character required to be
described in the Registration Statement
<PAGE> 9
-8-
or the Final Prospectus or to be filed as exhibits to the Registration
Statement that are not described and filed as required.
(o) The Company and its Subsidiaries each has good and marketable title to
all properties and assets described in the Final Prospectus as owned by it,
free and clear of all liens, charges, encumbrances or restrictions, except
such as (A) are described in the Final Prospectus or (B) are neither material
in amount nor materially significant in relation to the business of the
Company and the Subsidiaries, considered as one enterprise; all of the leases
and subleases material to the business of the Company and the Subsidiaries,
considered as one enterprise, and under which the Company or any Subsidiary
holds properties described in the Final Prospectus, are in full force and
effect, and neither the Company nor any Subsidiary has any notice of any
material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any Subsidiary under any of the leases or subleases
mentioned above, or affecting or challenging the rights of such corporation to
the continued possession of the leased or subleased premises under any such
lease or sublease.
(p) The Company and its Subsidiaries each owns, possesses or has obtained
all material governmental licenses, permits, certificates, consents, orders,
approvals and other authorizations necessary to own or lease, as the case may
be, and to operate its properties and to carry on its business as presently
conducted, and neither the Company nor any Subsidiary has received any notice
of proceedings relating to revocation or modification of any such licenses,
permits, certificates, consents, orders, approvals or authorizations which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a material adverse effect on the Company and the
Subsidiaries, considered as one enterprise.
(q) To the best knowledge of the Company, no labor problems exists with its
employees or with employees of any Subsidiary or is imminent that could
reasonably be expected to materially adversely affect the Company and the
Subsidiaries, considered as one enterprise, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of its or
its Subsidiaries, or customers that could reasonably be expected to materially
adversely affect the condition (financial or oth-
<PAGE> 10
-9-
erwise), earnings or business affairs of the Company and the Subsidiaries,
considered as one enterprise.
(r) The Company is not and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in the
Final Prospectus, will not be an "investment company" or any entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(s) (A) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the businesses in which it is engaged; (B) all material policies
of insurance insuring the Company or its Subsidiaries, its business, assets,
employees, officers and directors, for the benefit of the Company or its
Subsidiaries, are in full force and effect; (C) the Company and the
Subsidiaries each are in compliance with the terms of such policies and
instruments in all material respects; and (D) there are no claims by the
Company or any of its Subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under a
reservation of rights clause.
(t) Except as disclosed in the Registration Statement and except as would
not individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings or business affairs of the
Company and the Subsidiaries, considered as one enterprise, (A) to the
Company's knowledge, the Company and its Subsidiaries are each in compliance
with all applicable Environmental Laws, (B) to the Company's knowledge, the
Company and the Subsidiary have all permits, authorizations and approvals
required under any applicable Environmental Laws and are in compliance with
their requirements, (C) there are no pending or, to the Company's knowledge,
threatened Environmental Claims against the Company or its Subsidiaries and
(D) to the Company's knowledge there are no circumstances with respect to any
property or operations of the Company or its Subsidiaries that could
reasonably be anticipated to form the basis of an Environmental Claim against
the Company or its Subsidiaries.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute, law,
<PAGE> 11
-10-
rule, regulation, ordinance, code, policy or rule of common law and any
judicial or administrative interpretation thereof including any judicial or
administrative order, consent, decree or judgment, relating to the
environment, health, safety or any chemical, material or substance, exposure
to which is prohibited, limited or regulated by any governmental authority.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating in any way
to any Environmental Law.
(u) The Shares and the Additional Shares have been duly authorized for
listing on the New York Stock Exchange ("NYSE"), subject to official notice of
issuance.
2. Representations and Warranties of the Selling Stockholders. Each of the
Selling Stockholders severally represents and warrants to and agrees with each
of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or
on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the
performance by such Selling Stockholder of its obligations under, this
Agreement, the Custody Agreement signed by such Selling Stockholder and [ ],
as Custodian, relating to the deposit of the Shares to be sold by such Selling
Stockholder (the "CUSTODY AGREEMENT") and the Power of Attorney appointing
certain individuals as such Selling Stockholder's attorneys-in-fact to the
extent set forth therein, relating to the transactions contemplated hereby and
by the Registration Statement (the "POWER OF ATTORNEY") will not contravene
any provision of applicable law, or the certificate of incorporation or
by-laws of such Selling Stockholder (if such Selling Stockholder is a
corporation), or the certificate of a limited partnership, limited partnership
agreement or other organizational documents (if any) of such Selling
Stockholder or any agreement or other instrument binding upon such Selling
Stockholder or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over such Selling Stockholder, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by such Selling Stockholder of
<PAGE> 12
-11-
its obligations under this Agreement or the Custody Agreement or Power of
Attorney of such Selling Stockholder, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date and any Option
Closing Date (as defined in Section 5) will have, valid title to the Shares to
be sold by such Selling Stockholder and the legal right and power, and all
authorization and approval required by law, to enter into this Agreement, the
Custody Agreement and the Power of Attorney and to sell, transfer and deliver
the Shares to be sold by such Selling Stockholder.
(d) The Custody Agreement and the Power of Attorney have been duly
authorized, executed and delivered by such Selling Stockholder and are valid
and binding agreements of such Selling Stockholder.
(e) Delivery of the Shares to be sold by such Selling Stockholder pursuant
to this Agreement will pass title to such Shares free and clear of any
security interests, claims, liens, equities and other encumbrances.
(f) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and (ii) the Final Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph 2(f) only apply to statements or omissions in the
Registration Statement or the Final Prospectus based upon information relating
to any Selling Stockholder furnished to the Company in writing by such Selling
Stockholder through you expressly for use therein.
3. Agreements to Sell and Purchase. Each Seller, severally and not jointly,
hereby agrees to sell to the several Underwriters, and each Underwriter, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees, severally and not
<PAGE> 13
-12-
jointly, to purchase from such Seller at U.S.$________ a share (the "PURCHASE
PRICE") the number of Firm Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
number of Firm Shares to be sold by such Seller as the number of Firm Shares set
forth in Schedules II and III hereto opposite the name of such Underwriter bears
to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company and the Selling
Stockholders agree to sell to the U.S. Underwriters the Company Additional
Shares and the Selling Stockholders' Additional Shares, respectively, and the
U.S. Underwriters shall have a one-time right to purchase, severally and not
jointly, up to ______ Additional Shares from the Sellers at the Purchase Price.
The U.S. Representatives, on behalf of the U.S. Underwriters, may elect to
exercise the portion of such option to purchase the Company Additional Shares,
in whole or in part, only if the U.S. Representatives, on behalf of the U.S.
Underwriters, elect to exercise the portion of such option to purchase all of
the Selling Stockholders' Additional Shares. If the U.S. Representatives, on
behalf of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify the Sellers in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on which
such shares are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Additional Shares may be purchased
as provided in Section 5 hereof solely for the purpose of covering
overallotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares are set forth in
Schedule II hereto opposite the name of such U.S. Underwriter bears to the total
number of U.S. Firm Shares, and each of the Sellers agrees, severally and not
jointly, to sell up to the number of Additional Shares set forth on Schedule IV
opposite the name of such Seller.
Each Seller hereby agrees that, without the prior written consent of
[Managing Underwriter] on behalf of the Underwriters, it will not, during the
period ending 90 days after
<PAGE> 14
-13-
the date of the Final Prospectus, (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold
hereunder, (B) the issuance by the Company of shares of Common Stock upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof and which option, warrant or conversion feature is described in
the Final Prospectus, (C) the sale of any shares of Common Stock to the Company
or the purchase of any shares of Common Stock by the Company in accordance with
the Company's employee benefit plans or (D) transactions by any person other
than the Company relating to shares of Common Stock or other securities acquired
in open market transactions after the completion of the offering of the Shares.
In addition, each Selling Stockholder agrees that, without the prior written
consent of [Managing Underwriter] on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Final Prospectus, make
any demand for, or exercise any right with respect to, the registration of any
shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock which would cause the Company to file a
registration statement with the Commission prior to the expiration of such 90
day period.
4. Terms of Public Offering. The Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after this Agreement has become effective as in your judgment
is advisable. The Sellers are further advised by you that the Shares are to be
offered to the public initially at U.S.$______ a share (the "PUBLIC OFFERING
PRICE") and to certain dealers selected by you at a price that represents a
concession not in excess of U.S.$____ a share under the Public Offering Price,
and that any Underwriter may allow, and such dealers may reallow, a concession,
not in excess of U.S.$____ a share, to any Underwriter or to certain other
dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by each
Seller shall be made to such Seller
<PAGE> 15
-14-
in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on ____, 1999, or at such other
time on the same or such other date, not later than ______, 1999 INSERT DATE 5
BUSINESS DAYS AFTER THE IMMEDIATELY PRECEDING DATE, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "CLOSING DATE".
Payment for any Additional Shares to be sold by each Seller shall be made
to such Seller in Federal or other funds immediately available in New York City
against delivery of such Additional Shares for the respective accounts of the
several U.S. Underwriters at 10:00 a.m., New York City time, on the date
specified in the notice described in Section 3 or at such other time on the same
or on such other date, in any event not later than _________, 1999 INSERT DATE
10 BUSINESS DAYS AFTER THE EXPIRATION OF THE OVERALLOTMENT OPTION, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "OPTION CLOSING DATE".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Shares on the Closing Date are subject
to the accuracy of the representations and warranties on the part of the Company
and the Selling Stockholders contained herein as of the date hereof and as of
the Closing Date, and to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to
the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for
<PAGE> 16
-15-
a possible change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
Subsidiaries, taken as a whole, from that set forth in the Final Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement) that, in your judgment, is material and adverse and that
makes it, in your judgment, impracticable to market the Shares on the terms
and in the manner contemplated in the Final Prospectus.
(b) (i) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 6(a)(i) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Closing Date.
(ii) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date from each Selling Stockholder signed by
an officer of a corporation, a general partner of a limited partnership, a
member of a limited liability company or a trustee of a trust from each
Selling Stockholder that is a corporation, limited partnership or trust,
respectively, to the effect that the representations and warranties of each
Selling Stockholder contained in Section 2 of this Agreement are true and
correct as of the Closing Date and that each Selling Stockholder has
complied with all of the agreements and satisfied all of the conditions on
its part to be performed or satisfied hereunder on or before the Closing
Date. The officer, general partner or trustee, as the case may be, signing
and delivering such
<PAGE> 17
-16-
certificate may rely upon the best of his or her knowledge as to
proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of
Cahill Gordon & Reindel, outside counsel for the Company, dated the Closing
Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation and is in good standing under the laws of the State of
Delaware with corporate power and authority under such laws to own, lease
and operate its properties and conduct its business as described in the
Final Prospectus.
(ii) The Shares sold by the Company pursuant to the provisions of this
Agreement against the consideration set forth in this Agreement, have been
duly authorized and validly issued and are fully paid and non-assessable;
such Shares are not subject to the preemptive rights of any stockholder of
the Company, and all corporate action required to be taken for the
authorization, issue and sale of such Shares has been validly and
sufficiently taken.
(iii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Final Prospectus under the heading
"Capitalization".
(iv) The Shares conform in all material respects as to legal matters
to the description thereof in the Final Prospectus.
(v) This Agreement has been duly authorized, executed and delivered by
the Company.
(vi) No authorization, approval, consent or license of any government,
governmental instrumentality or court, domestic or foreign (other than
under the Act, the Exchange Act and the securities or blue sky laws of the
various states), is required for the valid authorization, issuance, sale
and delivery of the Shares.
(vii) The statements made in the Final Prospectus under "Description
of Capital Stock" and [ ], to the extent that they constitute matters of
law or legal conclusions, have
<PAGE> 18
-17-
been reviewed by such counsel and fairly present the information disclosed
therein in all material respects.
(viii) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Final Prospectus, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(ix) The execution and delivery of this Agreement, the issuance and
delivery of the Shares, the consummation by the Company of the transactions
contemplated in this Agreement and in the Final Prospectus and compliance
by the Company with the terms of this Agreement do not and will not result
in any violation of the charter or by-laws of the Company or any
Subsidiary, and do not and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a default under, or result
in the creation of or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any Subsidiary under any contract,
indenture, loan agreement, note, lease or other agreement or instrument
that is filed as an exhibit to the Registration Statement (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the condition (financial or
otherwise) of the Company and its Subsidiaries, considered as one
enterprise).
(x) The Registration Statement, the Final Prospectus and each
amendment or supplement thereto (except for the financial statements and
other financial or statistical data included therein or omitted therefrom,
as to which such counsel need express no opinion), as of their respective
effective or issue dates, appear on their face to comply as to form in all
material respects to the requirements of the Act and the regulations
thereunder.
(xi) Such counsel have participated in conferences with officers and
other representatives of the Company, representatives of the independent
public accountants for the Company, representatives of the
<PAGE> 19
-18-
Underwriters and counsel for the Underwriters, at which the contents of the
Registration Statement and Final Prospectus and related matters were
discussed. Although such counsel are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Final Prospectus (except as
specified in clauses (iv) and (vii) above), on the basis of the foregoing
(relying as to materiality to a large extent on discussions with, and
representations and opinions of officers and other representatives of the
Company), and no facts have come to the attention of such counsel to lead
them to believe (A) that the Registration Statement or any amendment
thereto (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion), at the time the Registration Statement or
any such amendment became effective, contained or contains an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or (B) that the Final Prospectus or any amendment or supplement
thereto (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion), at the time the Final Prospectus was
issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at the time the opinion is
delivered, no amendment to the Registration Statement or amendment or
supplement to the Final Prospectus has been filed or issued, such opinion
need not opine as to any such amendment or supplement.
Such opinion shall be to such further effect with respect to other legal matters
relating to this Agreement and the sale of the Shares pursuant to this Agreement
as counsel for the Underwriters may reasonably request. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon opinions
of other counsel,
<PAGE> 20
-19-
who shall be counsel satisfactory to counsel for the Underwriters in which case
the opinion shall state that they believe you and they are entitled to so rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and certificates of public officials; provided that such
certificates have been delivered to the Underwriters.
(d) ___ of an opinion of _______, General Counsel for the Company, dated as
of the Closing Time, together with reproduced copies of such opinion for each
of the other Underwriters, in form and substance satisfactory to counsel for
the Underwriters, to the effect that:
(i) The Company is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in the
United States in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to
the extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the Company and its Subsidiaries,
considered as one enterprise.
(ii) Each Subsidiary is a corporation duly organized under the laws of
its jurisdiction of incorporation and is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to
the extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the Company and its Subsidiaries,
considered as one enterprise.
(iii) All of the other outstanding shares of capital stock of the
Company, including shares sold by the Selling Shareholders pursuant to the
provisions of this Agreement, have been duly authorized and validly issued
and are fully paid and non-assessable; and none of the outstanding shares
of capital stock of the Company was issued in violation of the preemptive
rights arising under the Restated Certificate of Incorporation of the
Company or under Delaware General Corporation Law.
<PAGE> 21
-20-
(iv) Such counsel does not know of any statutes or regulations, or any
pending or threatened legal or governmental proceedings, required to be
described in the Final Prospectus that are not described as required, nor
of any contracts or documents of a character required to be described or
referred to in the Registration Statement or the Final Prospectus or to be
filed as exhibits to the Registration Statement that are not described,
referred to or filed as required.
(v) The descriptions in the Final Prospectus of the statutes,
regulations, legal or governmental proceedings and the statements under
"Business -- Governmental Regulations", are accurate, and to the extent
that they constitute matters of law or legal conclusions, have been
reviewed by such counsel and fairly represent the information disclosed
therein in all material respects.
(vi) The Company is an "air carrier" and a "citizen of the United
States" within the meaning of that portion of the United States Code
comprising those provisions formerly referred to as the Federal Aviation
Act of 1958, and now primarily codified in Title 49 of the United States
Code, as amended (the "Aviation Act") and holds an "air carrier operating
certificate issued by the Secretary of Transportation" within the meaning
of 11 U.S.C. Section 1110. The statements in the Final Prospectus as to the
routes relating to its services which the Company presently operates or is
authorized to operate are correct in all material respects and such routes
presently operated are being operated pursuant to valid Certificates or
Exemption Orders issued by the Department of Transportation, and no such
Certificate or Exemption Order is the subject of any "show cause" or other
order of, or any proceeding before, or any investigation by, the Department
of Transportation, which in the opinion of such counsel might reasonably
result in a final order impairing the validity of such Certificates or
Exemption Orders.
(vii) To the knowledge of such counsel, no default exists in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, loan agreement, note,
lease or other agreement or instrument that is
<PAGE> 22
-21-
described or referred to in the Registration Statement or the Final
Prospectus or filed as an exhibit to the Registration Statement, except for
such defaults that would not have a material adverse effect on the
condition (financial or otherwise) of the Company and its Subsidiaries,
considered as one enterprise.
(viii) The execution and delivery of this Agreement, the issuance and
delivery of the Shares, the consummation by the Company of the transactions
contemplated in this Agreement and in the Registration Statement and
compliance by the Company with the terms of this Agreement do not conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any Subsidiary under (A) any contract, indenture, mortgage, loan agreement,
note, lease or any other agreement or instrument known to such counsel, to
which the Company or any Subsidiary is a party or by which it may be bound
or to which any of its properties may be subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and any Subsidiary, considered as one enterprise), (B) any existing
applicable law, rule or regulation (other than the securities or blue sky
laws of the various states, as to which such counsel need express no
opinion) or (C) any judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or the Subsidiary or any of their respective
properties (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a material adverse effect on
the condition (financial or otherwise)) of the Company and any Subsidiary,
considered as one enterprise.
(ix) Such counsel has participated in the preparation of the
Registration Statement and Final Prospectus. Although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Final
<PAGE> 23
-22-
Prospectus (except as specified in clauses (v) and (vi) above), on the
basis of the foregoing (relying as to materiality to a large extent on
discussions with, and representations and opinions of officers and other
representatives of the Company), no facts have come to the attention of
such counsel to lead him to believe (A) that the Registration Statement or
any amendment thereto (except for the financial statements and other
financial or statistical data included therein or omitted therefrom, as to
which such counsel need express no opinion), at the time the Registration
Statement or any such amendment became effective, contained or contains an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or (B) that the Final Prospectus or any amendment or
supplement thereto (except for the financial statements and other financial
or statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion), at the time the Final Prospectus was
issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Such opinion shall be to such further effect with respect to other legal matters
relating to this Agreement and the sale of the Shares pursuant to this Agreement
as counsel for the Underwriters may reasonably request. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the District of Columbia, the federal law of the United
States, the State of Colorado, and the General Corporation Law of the State of
Delaware, upon opinions of other counsel, who shall be counsel satisfactory to
counsel for the Underwriters, in which case the opinion shall state that they
believe you and they are entitled to so rely. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and
certificates of public officials; provided that such certificates have been
delivered to the Underwriters.
<PAGE> 24
-23-
(e) An opinion of , counsel for the Selling Stockholders, together
with reproduced copies of such opinion for each of the other Underwriters, to
the effect that:
(i) this Agreement has been duly authorized, executed and delivered by
or on behalf of each of the Selling Stockholders;
(ii) the execution and delivery by each Selling Stockholder of, and
the performance by such Selling Stockholder of his or its obligations under
this Agreement will not contravene any provision of applicable law, or the
certificate of incorporation or by-laws or certificate of limited
partnership of such Selling Stockholder (if such Selling Stockholder is a
corporation or a partnership) or any stockholders' agreement among such
Selling Stockholders or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon such Selling Stockholder or, to
the best of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over such Selling
Stockholder, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by such Selling Stockholder of his or its obligations under
this Agreement except the order of the Commission declaring the
Registration Statement effective and such as may be required by the
securities or blue sky laws of the various states in connection with offer
and sale of the Shares (as to which securities laws such counsel expresses
no opinion);
(iii) each of the Selling Stockholders has valid title to the Shares
to be sold by such Selling Stockholder and the legal right and power, and
all authorization and approval required by law, to enter into this
Agreement and to sell, transfer and deliver the Shares to be sold by such
Selling Stockholder; and
(iv) delivery of the Shares to be sold by such Selling Stockholder and
payment therefor by the Underwriters pursuant to this Agreement will pass
title to such Shares free and clear of any security interests, claims,
liens, equities and other encumbrances.
<PAGE> 25
-24-
Such opinion shall be to such further effect with respect to other legal
matters relating to this Agreement and the sale of the Shares pursuant to
this Agreement as counsel for the Underwriters may reasonably request. In
giving such opinion, such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of [ ]
or [ ] and the current laws of the United States, upon opinions of
other counsel, who shall be counsel satisfactory to counsel for the
Underwriters, in which case the opinion shall state that they believe you
and they are entitled to so rely. For purposes of such opinion, the term
"to the best of such counsel's knowledge" means the conscious awareness of
facts or other information by the lawyer who signs such opinion and other
lawyers at such counsel's firm who have active involvement in representing
either of the Selling Stockholders. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of the Selling Stockholders,
officers of the Company, certificates of public officials and a certificate
of the transfer agent of the Company; provided that such certificates have
been delivered to the Underwriters. Such counsel need express no opinion as
to compliance with federal or state securities laws or any aviation law,
including without limitation, the Aviation Act. Further, in giving such
opinion, such counsel may assume that all natural persons who are
signatories to any documents are legally competent at the time of
execution, that the Representatives have no notice of any claim that a
transfer of the Shares by the Selling Stockholders is wrongful or that a
particular adverse person is the owner of or has any interest in such
Shares, and that all signatures on documents reviewed by such counsel are
genuine.
With respect to Section 6(e) above, the Selling Stockholders' Counsels
may rely upon an opinion or opinions of counsel for any Selling
Stockholders and, with respect to factual matters and to the extent such
counsel deems appropriate, upon the representations of each Selling
Stockholder contained herein and in the Custody Agreement and Power of
Attorney of such Selling Stockholder and in other docu-
<PAGE> 26
-25-
ments and instruments; provided that (A) each such counsel for the Selling
Stockholders is satisfactory to your counsel, (B) a copy of each opinion so
relied upon is delivered to you and is in form and substance satisfactory
to your counsel, (C) copies of such Custody Agreements and Powers of
Attorney and of any such other documents and instruments shall be delivered
to you and shall be in form and substance satisfactory to your counsel and
(D) the Selling Stockholders' Counsels shall state in their opinion that
they are justified in relying on each such other opinion.
(f) The Underwriters shall have received on the Closing Date an opinion of
[ ], counsel for the Underwriters, dated the Closing Date, covering certain
matters referred to in Section 6(c) above.
The opinions of Cahill Gordon & Reindel, General Counsel of the Company,
and the Selling Stockholders' Counsels described in Sections 6(c), 6(d) and 6(e)
above (and any opinions of counsel for any Selling Stockholder referred to in
the immediately preceding paragraph) shall be rendered to the Underwriters at
the request of the Company or one or more of the Selling Stockholders, as the
case may be, and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to the Underwriters, from
Arthur Andersen L.L.P., independent auditors, containing statements of
information of the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and certain financial
information contained in the Registration statement and the Final Prospectus;
provided that the letter delivered on the Closing Date shall use a "cut-off
date" not earlier than the date hereof.
(h) The "lock-up" agreements, each substantially in the form of Exhibit A
hereto, between you and certain stockholders, officers and directors of the
Company relating to sales and certain other dispositions of shares of Common
Stock or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the Option Closing Date of such
documents as you may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Shares and other
matters related to the issuance of the Additional Shares.
<PAGE> 27
-26-
7. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
(a) To furnish to you, without charge, signed copies of the Registration
Statement (including exhibits thereto) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without exhibits
thereto) and to furnish to you in New York City, without charge, prior to
10:00 a.m. New York city time on the business day next succeeding the date of
this Agreement and during the period mentioned in Section 7(c) below, as many
copies of the Final Prospectus and any supplements and amendments thereto or
to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Final Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which
you reasonably object, and to file with the Commission within the applicable
period specified in Rule 424(b) under the Act any prospectus required to be
filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering of
the Shares as in the opinion of counsel for the Underwriters the Final
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Final Prospectus in order to
make the statements therein, in the light of the circumstances when the Final
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion
of counsel for the Underwriters, it is necessary to amend or supplement the
Final Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Shares may have
been sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Final Prospectus so that the
statements in the Final Prospectus as so amended or supplemented will not, in
the light of the circumstances when the FinalProspectus is delivered to a
purchaser, be misleading or so that the Final Prospectus, as amended or
supplemented, will comply with law. If, in accordance with the preced-
<PAGE> 28
-27-
ing sentence, it shall be necessary to amend or supplement the Final
Prospectus at any time prior to the expiration of nine months after the first
date of the public offering of the Shares, the Company shall prepare, file and
furnish such amendment or supplement at its own expense. Thereafter, the
Underwriters shall bear the expense of preparing, filing and furnishing any
such amendment or supplement.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdiction as you shall reasonably
request.
(e) To make generally available to the Company's security holders and to
you as soon as practicable an earning statement covering the twelve-month
period ending [ ] that satisfies the provisions of Section 11(a) of the Act
and the rules and regulations of the Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company agrees to pay or
cause to be paid all expenses incident to the performance of its obligations
under this Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel, the Company's accountants and counsel for the Selling
Stockholders in connection with the registration and delivery of the Shares
under the Act and all other fees or expenses in connection with the preparation
and filing of the Registration Statement, any Preliminary Finalrospectus, the
Final Prospectus and amendments and supplements to any of the foregoing,
including all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the transfer and
delivery of the Shares of the Underwriters, including any transfer or other
taxes payable thereon, (iii) the cost of printing or producing any Blue Sky
memorandum in connection with the offer and sale of the Shares under state
securities laws and all expenses in connection with the qualification of the
Shares for offer and sale under state securities laws as provided in Section
7(d) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) all fees and expenses in
<PAGE> 29
-28-
connection with the preparation and filing of the registration statement on Form
8-A relating to the Common Stock and all costs and expenses incident to listing
the Shares on the NYSE, (vi) the cost of printing certificates representing the
Shares, (vii) the costs and charges any transfer agent, registrar or depositary,
(viii) the costs and expenses of the Company relating to investor presentations
on any "road show" undertaken in connection with the marketing of the offering
of the Shares, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, and (ix) all
other costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this Section 8.
It is understood, however, that except as provided in this Section 8, Section 9
entitled "Indemnity and Contribution", and the last paragraph of Section 11
below, the Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on resale of
any of the Shares by them and any advertising expenses connected with any offers
they may make.
The provisions of this Section shall not supersede or otherwise affect any
agreement that the Sellers may otherwise have for the allocation of such
expenses among themselves.
9. Indemnity and Contribution.
(a) The Company agrees to indemnity and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any reasonable legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
Preliminary Final Prospectus or the Final Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
<PAGE> 30
-29-
statements therein not misleading, except insofar as such losses, clams,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
you expressly for use therein.
(b) Each Selling Stockholder agrees, severally and not jointly, to
indemnity and hold harmless (i) the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act and (ii) each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any reasonable legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any Preliminary Final Prospectus or the
Final Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only
with reference to information relating to such Selling Stockholder furnished
in writing by or on behalf of such Selling Stockholder expressly for use in
the Registration Statement, any Preliminary Final Prospectus, the Final
Prospectus or any amendments or supplements thereto.
(c) The Company agrees to indemnify and hold harmless each Selling
Stockholder and each person, if any, who controls each Selling Stockholder
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any reasonable legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any Preliminary Final Prospectus or the Final Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
<PAGE> 31
-30-
or supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Selling Stockholder furnished to the Company in writing by
such Selling Stockholder or any information relating to any Underwriter
furnished to the Company in writing by such Underwriter expressly for use
therein.
(d) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Selling Stockholders, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or any Selling Stockholder
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any reasonable legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any Preliminary Final Prospectus or the Final Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only with reference to
information relating to such Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use in the Registration
Statement, any Preliminary Final Prospectus, the Final Prospectus or any
amendments or supplements thereto.
(e) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to Section 9(a), 9(b), 9(c) or 9(d), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
in-
<PAGE> 32
-31-
demnifying party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (i) the reasonable fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
(ii) the reasonable fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section and (iii) the reasonable
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Selling Stockholders and all persons, if any, who control any
Selling Stockholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case
of any such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by [Managing
Underwriter]. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm
for the Selling Stockholders and such control persons of any Selling
Stockholders, such firm shall be designated in writing by the Selling
Stockholders holding a majority of the outstanding shares of Common Stock held
by the Selling Stockholders considered as a group. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified
<PAGE> 33
-32-
party from and against any loss or liability by reason of such settlement
or judgment. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(f) To the extent the indemnification provided for in Section 9(a), 9(b),
9(c) or 9(d) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 9(f)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 9(f)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Sellers on the one hand and the Underwriters
on the other hand in connection with the offering of the Shares shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of the Shares (before deducting expenses) received by each Seller and
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover of the Final Prospectus,
bear to the aggregate Public Offering Price of the Shares. The relative fault
of the Sellers on the one hand and the Underwriters on the other hand shall be
determined by reference to among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company, the
Selling Stock-
<PAGE> 34
-33-
holders or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Section 9 are several in proportion to the respective number of Shares
they have purchased hereunder, and not joint.
(g) The Sellers and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 9(f). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provisions of this Section
9, no Selling Stockholder shall be required to indemnify or contribute any
amount in excess of the net proceeds from the offering of the Shares (before
deducting expenses) received by such Selling Stockholder, by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for in this
Section 9 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
(h) The indemnity and contribution provisions contained in this Section 9
and the representations, warranties and other statements of the Company and
the Selling Stockholders contained in this Agreement shall remain operative
and in full force and effect regardless of (i) any
<PAGE> 35
-34-
termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter, any Selling
Stockholder or any person controlling any Selling Stockholder, or the Company,
its officers or directors or any person controlling the Company and(iii)
acceptance of and payment for any of the Shares.
10. Termination. This Agreement shall be subject to termination by notice
given by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses 10(a)(i) through 10(a)(iv),
such event, singly or together with any other such event, makes it, in your
judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Final Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule II or Schedule III bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has
<PAGE> 36
-35-
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 11 by an amount in excess of one-ninth of such number of Shares without
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the
aggregate number of Firm Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you, the Company and the Selling Stockholders for
the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders. In any such
case either you or the relevant Sellers shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. If, on the option
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased, the non-defaulting Underwriters shall have
the option to (i) terminate their obligation hereunder to purchase Additional
Shares or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of any Seller to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
12. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
<PAGE> 37
-36-
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
ATLAS AIR, INC.
By:
Name:
Title:
The Selling Stockholders
named in Schedule I hereto,
acting severally
By:
Attorney-in-Fact
Accepted as of the date hereof
[US Underwriters]
[International Underwriters]
<PAGE> 38
SCHEDULE I
SELLING STOCKHOLDERS
<TABLE>
<CAPTION>
NUMBER OF FIRM
SHARES TO BE
SELLING STOCKHOLDER SOLD
<S> <C>
--------------
Total.............................................................
==============
</TABLE>
<PAGE> 39
SCHEDULE II
U.S. UNDERWRITERS
<TABLE>
<CAPTION>
NUMBER OF FIRM SHARES TO BE
PURCHASED
UNDERWRITERS
<S> <C>
NAMES OF OTHER U.S. UNDERWRITERS
--------------
Total U.S. Firm Shares............................................
==============
</TABLE>
<PAGE> 40
SCHEDULE III
INTERNATIONAL UNDERWRITERS
<TABLE>
<CAPTION>
NUMBER OF FIRM SHARES TO BE
PURCHASED
UNDERWRITERS
<S> <C>
NAMES OF OTHER INTERNATIONAL UNDERWRITERS
--------------
Total International Firm Shares...................................
==============
</TABLE>
<PAGE> 41
SCHEDULE IV
<TABLE>
<CAPTION>
MAXIMUM NUMBER OF ADDITIONAL
SHARES TO BE SOLD
NAME OF SELLER
<S> <C>
--------------
Total.............................................................
==============
</TABLE>
<PAGE> 42
EXHIBIT A
FORM OF LOCK-UP LETTER
, 1999
[Underwriter]
Dear Ladies and Gentlemen:
The undersigned understands that [Managing Underwriters] propose to enter
into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with Atlas Air,
Inc., a Delaware corporation (the "COMPANY") and certain stockholders of the
Company (the "SELLING STOCKHOLDERS") providing for the public offering (the
"PUBLIC OFFERING") by the several Underwriters, including (the "UNDERWRITERS")
of ___ shares (the "SHARES") of the common stock, par value ($0.01 per share, of
the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of [Managing Underwriter]
on behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the final U.S. and
International prospectuses relating to the Public Offering (the "Prospectuses"),
(1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (a) the sale of any Shares to the Underwriters pursuant to
the Underwriting Agreement, (b) the issuance by the Company of the shares of
Common Stock upon the exercise of an option or
A-1
<PAGE> 43
warrant or the conversion of a security outstanding on the date of the
Prospectuses and which option, warrant or conversion feature is described in the
Prospectuses, (c) if applicable, the sale of any shares of Common Stock to the
Company or the purchase of any shares of Common Stock by the Company pursuant to
the Company's employee benefit plans or (d) transactions relating to shares of
Common Stock or other securities acquired in open market transactions after the
completion of the Public Offering. In addition, the undersigned agrees that,
without the prior written consent of [Managing Underwriter] on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the Prospectuses, make any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock which would cause the Company to file a registration statement with the
Securities and Exchange Commission prior to the expiration of such 90 day
period.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to the Underwriting Agreement, the terms of which are subject to
negotiation between the Company, the Selling Stockholders and the Underwriters.
Very truly yours,
(Name)
(Address)
A-2
<PAGE> 1
EXHIBIT 1.2
[Form of Debt Security Underwriting Agreement]
$[ ]
ATLAS AIR, INC.
[ ]% SENIOR NOTES DUE [ ]
UNDERWRITING AGREEMENT
, 1999
<PAGE> 2
-2-
FORM OF
UNDERWRITING AGREEMENT
, 1999
[UNDERWRITERS ADDRESS]
Ladies and Gentlemen:
Atlas Air, Inc., a Delaware corporation (the "Company"),
hereby confirms its agreement with you (the "Underwriters"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Underwriters (the
"Offering") $[ ] aggregate principal amount of its Senior Notes due [ ] (the
"Notes" or "Securities"). The Notes will be issued pursuant to an indenture (the
"Indenture") to be entered into by the Company, as issuer, and [ ], as trustee
(the "Trustee").
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 and a related
preliminary prospectus for the registration of the Securities under the
Securities Act of 1933, as amended (the "Act"), and has filed such amendments
thereto, if any, as may have been required prior to the date hereof. Such
registration statement, as amended at the date of the Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all
other material respects with said rule.
As used in this Agreement, the term "Registration Statement"
means such registration statement, as amended at the time when it was or is
declared effective, including any 462(b) Registration Statement (as defined) and
including all financial statements and schedules and exhibits thereto and
including any information omitted therefrom pursuant to Rule 430A ("Rule 430A")
under the Rules and Regulations (as defined), if applica-
<PAGE> 3
-3-
ble, and included in the Prospectus (as defined); the term "Preliminary
Prospectus" means each prospectus relating to the Securities filed with such
registration statement or any amendment thereto (including the prospectus, if
any, included in such registration statement or any amendment thereto at the
time it was or is declared effective; and the term "Prospectus" means the
prospectus relating to the Securities filed with the Registration Statement with
the Commission pursuant to Rule 430A and Rule 424(b) ("Rule 424(b)") under the
Rules and Regulations, if required, or, if no prospectus is required to be filed
pursuant to Rule 430A or Rule 424(b), such term means the prospectus included in
such Registration Statement. All references in this Agreement to the
Registration Statement, Preliminary Prospectus and Prospectus and to financial
statements and schedules and other information that is "contained," "included,"
"set forth," "described in" or "stated" therein (and all other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information that is or is deemed to be incorporated by
reference therein; and all references in this Agreement to amendments or
supplements to the Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), that is or is
deemed to be incorporated by reference therein.
2. Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 has been filed with
the Commission with respect to the Securities (File No. ), including
the form of prospectus, together with all amendments thereto, and has
been prepared by the Company in conformity in all material respects
with the requirements of the Act and the rules and regulations (the
"Rules and Regulations") of the Commission thereunder and the Company
meets all the requirements for filing on Form S-3. The Registration
Statement at the time it was or will be declared effective and at the
Closing Date (as defined) complies and will comply in all material
respects with the requirements of the Act and the Rules and
Regulations.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus nor instituted any
proceeding for such purpose. When any Preliminary Prospectus was filed
with the Commission it
<PAGE> 4
-4-
(x) complied in all material respects with the requirements of the Act
and (y) did not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. When the Registration Statement or any amendment
thereto was or is declared effective and on the Closing Date, it did
not and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus, and any amendments or supplements thereto on the date first
filed with the Commission pursuant to Rule 424(b) (or if not so filed,
on the date the Registration Statement or the amendment thereto
containing the Prospectus or amendment or supplement to the Prospectus
was or is declared effective) and on the Closing Date, (i) complied and
will comply in all material respects with the requirements of the Act
and the Rules and Regulations and (ii) did not and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The foregoing provisions of this paragraph (b) do not
apply to statements or omissions in the Registration Statement or any
amendment thereto or the Prospectus or any amendment or supplement
thereto made in reliance upon and in conformity with written
information with respect to the Underwriters furnished to the Company
by [managing Underwriter] specifically for use therein.
The foregoing provisions of this paragraph (b) do not apply to
statements or omissions made in any Preliminary Prospectus, the
Registration Statement or any amendment thereto or the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity
with written information furnished to the Company by the Underwriters
specifically for use therein or to the Statement of Eligibility and
Qualification (the "Form T-1") under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), of the Trustee filed as
exhibits to the Registration Statement.
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the
<PAGE> 5
-5-
requirements of the 1934 Act and the rules and regulations (the "1934
Act Regulations") of the Commission thereunder, and when read together
with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto became or becomes
effective and at the Closing Date, did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(d) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and to perform its obligations under this Agreement,
the Indenture, and the Notes; the Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(e) The Company's only subsidiaries are Atlas One, Inc., Atlas
Freighter Leasing, Inc., Atlas Freighter Leasing II, Inc., Atlas Air
Services Limited, LHC Properties, Inc., Atlas Flightlease, Inc. and
Genessee Insurance Company, Ltd. (collectively, the "Subsidiaries").
Each Subsidiary is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation with corporate power and authority under such laws to
own, lease and operate its properties and conduct its business; and
each Subsidiary is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which
it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a Material Adverse Effect. All of the outstanding shares of
capital stock of each Subsidiary have been duly authorized and validly
issued and are fully paid and non-assessable and are owned by the
Company free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind.
<PAGE> 6
-6-
(f) The Company has all requisite corporate power and
authority to execute, deliver, and perform each of its obligations
under the Notes. The Notes have been duly and validly authorized by the
Company for issuance and conform in all material respects to the
description thereof in the Prospectus. The Notes, when executed by the
Company and authenticated by the Trustee in accordance with the
provisions of the Indenture, and delivered to and paid for by the
Underwriters in accordance with the terms hereof, will have been duly
executed, issued and delivered and will constitute valid and legally
binding obligations of the Company, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a
proceeding in equity or at law), (iii) the unenforceability, under
certain circumstances, of provisions imposing penalties, forfeitures,
late payment charges or an increase in interest rate upon delinquency
in payment or the occurrence of a default, and (iv) the
unenforceability of any provision requiring the payment of attorneys'
fees, except to the extent that a court determines such fees to be
reasonable (each of clauses (i), (ii), (iii), and (iv), an
"Enforceability Limitation").
(g) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture. The Indenture has been duly authorized by the Company and,
when executed and delivered by the Company (assuming the due
authorization, execution and delivery thereof by the Trustee), will
constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
that the enforcement thereof may be subject to the Enforceability
Limitations. The Indenture has been qualified under the Trust Indenture
Act and complies as to form in all material respects with the
requirements of the Trust Indenture Act.
(h) The Company is a "citizen of the United States" (as
defined in Section 40102(a)(15) of Title 49 of the United States Code,
as amended) and is an air carrier operating under a certificate issued
by the Secretary of Transportation pursuant to Chapter 447 of Title 49,
United States Code, for aircraft capable of carrying 10 or more
<PAGE> 7
-7-
individuals or 6,000 pounds or more of cargo. There is in force with
respect to the Company an air carrier operating certificate issued
pursuant to Part 121 of the regulations under the sections of Title 49,
United States Code, relating to aviation (the "Federal Aviation Act").
All of the outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable.
(i) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and the Subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(j) The Securities conform in all material respects to the
description thereof contained in the Prospectus under the heading
"Description of Debt Securities."
(k) The consolidated financial statements included or
incorporated by reference in the Prospectus present fairly the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows or changes in financial position of the
Company and its consolidated subsidiaries for the periods specified.
Such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(l) The Company and the Subsidiaries possess adequate
certificates, authorities and permits issued by appropriate
governmental agencies or bodies necessary to conduct, in all material
respects, the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that would, individually or in
the aggregate, have a Material Adverse Effect.
(m) The statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company and
the Subsidiaries believe to be reliable and accurate.
(n) Except as accurately described in all material respects in
the Prospectus and except as would not have a Material Adverse Effect
and would not materially and ad-
<PAGE> 8
-8-
versely affect the ability of the Company to perform its obligations
under this Agreement, the Notes, and the Indenture, or to consummate
the transactions contemplated by the Prospectus, there are no legal or
governmental proceedings pending or, to the best knowledge of the
Company, threatened to which the Company or any of the Subsidiaries is
or may be a party or to which any of the properties of the Company or
any of the Subsidiaries is or may be subject.
(o) Except as described in the Prospectus, no consent,
approval, authorization or order of any court or governmental agency or
body is required for the performance of this Agreement, the Notes or
the Indenture, by the Company or its Subsidiaries, except such as have
been obtained or are contemplated to be obtained by the Prospectus and
such as may be required under the Act, the Trust Indenture Act or state
securities or "Blue Sky" laws in connection with the purchase and
distribution of the Notes by the Underwriters. Each of the Company and
the Subsidiaries has complied with all laws, regulations and orders
applicable to it or its business, except for any violation of such
laws, regulation or orders which would not have a Material Adverse
Effect. Each of the Company and the Subsidiaries has performed in all
material respects all of the obligations required to be performed by
it, and is not in default under any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, letter of credit agreement,
bond, debenture, note agreement or other evidence of indebtedness,
lease, contract or other agreement or instrument to which it is a party
or by which it or any of its property is bound (collectively, the
"Contracts"), except for such failures to perform or defaults as would
not have a Material Adverse Effect, and, to the knowledge of the
Company, no other party under any such Contracts is in material default
in any respect thereunder, except for such defaults as would not have a
Material Adverse Effect.
(p) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. This
Agreement and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by the Company. This
Agreement has been duly executed and delivered by the Company; no
consent, approval, authorization or order of any court or governmental
agency or body is required for the consummation by the Company of the
transactions on its
<PAGE> 9
-9-
part herein contemplated, except such as may have been obtained under
the Act or otherwise and such as may be required under state securities
or "Blue Sky" laws; the performance of this Agreement and the
consummation of the transactions contemplated hereby will not conflict
with or result in a breach or violation of any of the terms and
provisions of or constitute a default under the Certificate of
Incorporation or By-laws of the Company. Except, in each case, for
instances that would not result in a Material Adverse Effect or a
material adverse effect on the ability of the Company to perform its
obligations under this Agreement; the performance of this Agreement and
consummation of the transactions contemplated hereby will not conflict
with or result in a breach or violation of any of the terms and
provisions of or constitute a default under or result in the creation
or imposition of any lien, charge, or encumbrance upon the assets or
properties of the Company or any Subsidiary, pursuant to any Contract
statute, order, rule or regulation applicable to the Company or any
Subsidiary or their respective businesses or properties or of any court
or other governmental body.
(q) Each of the Company and the Subsidiaries has good and
marketable title to all properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except such as are described in or
referred to in the Prospectus or as would not have a Material Adverse
Effect.
(r) The Company is not, and after giving effect to the
transactions contemplated hereby or the Notes Offering (as defined)
will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940 as amended.
(s) None of the Company, the Subsidiaries or an agent acting
on their behalf has taken or will take any action that might cause this
Agreement or the sale of the Securities to violate Regulation T, U or X
of the Board of Governors of the Federal Reserve System.
(t) Except as described in the Prospectus, no labor problem
exists with the Company's employees or with employees of any Subsidiary
or, to the best knowledge of the Company, is imminent that could
reasonably be expected to have a Material Adverse Effect, and the
Company is not aware of any existing or imminent labor disturbance by
the employees of any of its or any subsidiary's principal con-
<PAGE> 10
-10-
tractors or customers that could reasonably be expected to have a
Material Adverse Effect.
(u) The Company and the Subsidiaries (A) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (B) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (C) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
Material Adverse Effect.
(v) Each of the Company and the Subsidiaries carries insurance
in such amounts and covering such risks as it deems reasonable for the
conduct of its business and the value of its properties.
3. Purchase, Sale and Delivery of the Securities. On the basis
of the representations, warranties, agreements and covenants herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriters, and each of the Underwriters severally
agrees to purchase from the Company, at [ ] of their principal amount, the
respective aggregate principal amounts of the Notes set forth opposite their
respective names on Schedule 1 hereto. The obligations of the Underwriters under
this Agreement are several and not joint. One or more certificates in definitive
form for the Notes that the Underwriters have agreed to purchase hereunder, and
in such denomination or denominations and registered in such name or names as
each Underwriter requests upon notice to the Company at least two business days
prior to the Closing Date, shall be delivered by or on behalf of the Company,
against payment by or on behalf of the Underwriters, of the purchase price
therefor (less an amount equivalent to payment of interest at the then
applicable Federal Funds Rate on the purchase price of the Securities for one
(1) day) by wire transfer or check of immediately available funds to the account
of the Company previously designated by it in writing. Such delivery of and
payment for the Securities shall be made at the offices of [ ] at 10:00 a.m.
local time, on [ ], 1999 or at such other place,
<PAGE> 11
-11-
time or date as the Underwriters and the Company may agree upon or as the
Underwriters may determine pursuant to Section 7(a) hereof, such time and date
of delivery against payment being herein referred to as the "Closing Date." The
Company will make such certificate or certificates for the Notes available for
checking and packaging by the Underwriters at the offices in New York, New York
of [ ] at least 24 hours prior to the Closing Date.
4. Offering by the Underwriters. After the Prospectus has been
filed pursuant to rule 424(b) promulgated under the Act, the Underwriters
propose to offer for sale to the public the Securities at the price and upon the
terms set forth in the Prospectus relating to the Securities.
5. Covenants of the Company. The Company covenants and agrees
with the Underwriters that:
(a) If required, the Company will file the Prospectus and any
amendments or supplements thereto with the Commission in the manner and
within the time period required by Rule 424(b) (but only if the
Underwriters or their counsel have not reasonably objected thereto
promptly after having been furnished a copy thereof a reasonable time
prior to the proposed filing thereof). During any time when a
prospectus relating to the Securities is required to be delivered under
the Act, the Company (i) will comply with all requirements imposed upon
it by the Act and the Rules and Regulations to the extent necessary to
permit the continuation of sales of or dealings in the Securities in
accordance with the provisions hereof and of the Prospectus, as then
amended or supplemented, and (ii) will not file with the Commission the
Prospectus or the amendment referred to in the second sentence of
Section 2(a) hereof or any amendment or supplement to such Prospectus
or any amendment to the Registration Statement of which the
Underwriters and their counsel shall not previously have been advised
and furnished a copy for a reasonable period of time prior to the
proposed filing and as to which filing the Underwriters and their
counsel shall not have given their respective consent, which consent
will not be unreasonably withheld or delayed. The Company will prepare
and will file with the Commission, in accordance with the Act and the
Rules and Regulations, promptly upon request by the Underwriters or
counsel for the Underwriters, any amendments to the Registration
Statement or amendments or supplements to the Prospectus that may be
necessary or reasonably advisable in connection with the
<PAGE> 12
-12-
distribution of the Securities by the Underwriters, and the Company
will use its reasonable best efforts to cause any such amendment to the
Registration Statement to be declared effective by the Commission
promptly. The Company will advise the Underwriters, promptly after it
receives notice thereof, of the time when the Registration Statement or
any amendment thereto has been filed or declared effective or the
Prospectus or any amendments or supplements thereto have been filed.
(b) The Company will advise the Underwriters, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus,
or any amendments or supplements thereto, (ii) the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, (iii) the institution, threat or contemplation of any
proceeding for any such purpose or (iv) any request made by the
Commission for amending the Registration Statement, for amending or
supplementing the Prospectus or for additional information. The Company
will use its reasonable best efforts to prevent the issuance of any
such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will cooperate with the Underwriters in
arranging for the qualification of the Securities for offering and sale
under the securities or "Blue Sky" laws of such jurisdictions in the
United States and Canada as the Underwriters may designate and will
continue such qualifications in effect for as long as may be necessary
to complete the distribution of the Securities; provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to execute a general consent to service of
process in any jurisdiction or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise
subject.
(d) During such time as a prospectus relating to the
Securities is required to be delivered under the Act, if after due
inquiry, the Company should become aware of any event that occurs, and
as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact, or omit to state
a material
<PAGE> 13
-13-
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if the Company should be of the opinion that for any
other reason it is necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Rules and Regulations, the
Company will promptly notify the Underwriters and their counsel thereof
and the Company will prepare and, subject to Section 5(a) hereof, will
file with the Commission, at its sole expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus
(in form and substance reasonably satisfactory to the Underwriters and
their counsel and in compliance with the Act and the Rules and
Regulations) so that the Prospectus as so supplemented or amended will
not contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or so that the Prospectus will comply with
law, and will deliver to the Underwriters, without charge, such number
of copies thereof as they may reasonably request.
(e) The Company will, without charge, provide (i) to the
Underwriters and to their counsel a signed copy of the registration
statement originally filed and each amendment thereto (in each case
including exhibits thereto) and the Registration Statement and (ii) so
long as a prospectus relating to the Securities is required to be
delivered under the Act, as many copies of each Preliminary Prospectus
and the Prospectus relating to the Securities and any amendment or
supplement thereto as each Underwriter may reasonably request.
(f) The Company, as soon as practicable but not later than 90
days after the close of the period covered thereby, will make generally
available to holders of the Securities and to the Underwriters
consolidated earning statements of the Company (which need not be
certified by an independent public accountant) that satisfy the
provisions of Section 11(a) of the Act and Rule 158 thereunder covering
a twelve-month period ending [ ].
(g) For and during the period ending [five] years after the
effective date of the Registration Statement, the Company will furnish
to the Underwriters copies of all reports and other communications
(financial or otherwise) furnished by the Company to its
securityholders generally
<PAGE> 14
-14-
and copies of any reports or financial statements furnished to or filed
by the Company with the Commission or any national securities exchange
on which any class of securities of the Company may be listed.
(h) Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been prepared and are available, a
copy of any unaudited interim consolidated financial statements of the
Company and any pro forma information prepared in respect of any period
subsequent to the period covered by its most recent financial
statements included in the Registration Statement and the Prospectus.
(i) The Company will not at any time, directly or indirectly,
take any action designed, or that might reasonably be expected, to
cause or result in, or that will constitute, stabilization or
manipulation of the price of the Notes to facilitate the sale or resale
of any of the Securities in violation of the 1934 Act.
(j) The Company will apply the net proceeds from the sale of
the Securities as set forth in the Prospectus.
6. Expenses. The Company agrees to pay all costs and expenses
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated, as provided in this Section 6 including all costs and expenses
incident to (i) the printing or other production of documents with respect to
the transactions, including any costs of printing the registration statement
originally filed with respect to the Securities and any amendment thereto and
the Registration Statement, any Preliminary Prospectus and the Prospectus and
any amendment or supplement thereto, (ii) the printing (or reproduction) and
delivery of this Agreement, the Securities, any Blue Sky Memoranda and all other
documents and agreements printed (or reproduced) and delivered in connection
with the offering of the Securities, (iii) all arrangements relating to the
delivery to the Underwriters of copies of the foregoing documents, (iv) the fees
and disbursements of the counsel, the accountants and any other experts or
advisors retained by the Company or its subsidiaries, (v) preparation (including
printing), issuance and delivery to the Underwriters of certificates evidencing
the Securities, (vi) the qualification of the Securities in the United States
and Canada under state securities and "Blue Sky" laws, including filing fees and
reasonable fees and disbursements of counsel for the Underwriters relating
thereto, (vii) the filing
<PAGE> 15
-15-
fees of the Commission and the [New York Stock Exchange, Inc.] relating to the
Securities, (viii) expenses of the Company and its subsidiaries in connection
with any meetings with prospective investors in the Securities, (ix) advertising
relating to the offering of the Securities (other than as shall have been
specifically approved in writing by the Underwriters to be paid by the
Underwriters), (x) the fees and expenses of the Trustee, including fees and
expenses of its counsel, (xi) any fees charged by investment rating agencies for
the rating of the Securities and (xii) the costs and expenses incident to the
performance by the Company of its obligations hereunder and in connection with
the offer, sale and delivery of the Securities to be sold by it, including any
stock transfer taxes payable upon the sale of such Securities to the
Underwriters.
If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 10 hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder (other than solely by reason of
a default by the Underwriters of their obligations hereunder after all
conditions hereunder have been satisfied in accordance herewith), the Company
will promptly reimburse the Underwriters upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel
for the Underwriters) that shall have been incurred by the Underwriters in
connection with the proposed purchase and sale of the Securities not so
delivered.
7. Conditions of the Underwriters' Obligations. The obligation
of the Underwriters to purchase and pay for the Securities on the Closing Date
shall be subject to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or the qualification of
the Indenture under the Trust Indenture Act shall have been issued and
no proceedings for that purpose shall have been instituted or to the
knowledge of the Company or the Underwriters, shall be threatened or
contemplated by the Commission.
(b) The Underwriters shall have received an opinion, in form
and substance satisfactory to the Underwriters dated the Closing Date,
and addressed to the Underwriters,
<PAGE> 16
-16-
of Cahill Gordon & Reindel, counsel for the Company to the effect that:
(i) The Company is duly incorporated, validly existing and in
good standing under the laws of the State of Delaware with corporate
power and authority to own its properties and to conduct its business
as described in the Registration Statement and the Prospectus.
(ii) No authorization, approval, consent or license of any
state or federal governmental or regulatory body, except as may be
required under the Act, applicable "Blue Sky" laws or the rules and
regulations of the New York Stock Exchange, Inc., is required in
connection with the (A) authorization, issuance, transfer, sale or
delivery of the Securities under this Agreement; (B) execution,
delivery and performance of this Agreement by the Company; (C) taking
of any action contemplated herein or in the Registration Statement or
Prospectus, or if so required all such authorizations, approvals,
consents and licenses, specifying the same, have been obtained and are
in full force and effect.
(iii) The Company has the authorized and outstanding capital
stock, and, to the knowledge of such counsel, stock options and
warrants as set forth in the Registration Statement and the Prospectus.
The outstanding shares of capital stock are duly authorized, validly
issued, fully paid and nonassessable.
(iv) The Company is not an "investment company" as defined in
Section 3(a) of the Investment Company Act.
(v) The Company has full corporate power and authority to
enter into this Agreement and this Agreement has been duly authorized,
executed and delivered by the Company.
(vi) The Registration Statement and the Prospectus, and each
amendment thereof or supplement thereto, comply in all material
respects as to form with the requirements of the Act and the Rules and
Regulations (except that no opinion need be expressed as to financial
statements, financial statement notes
<PAGE> 17
-17-
and other financial and statistical data contained in the Registration
Statement or the Prospectus).
(vii) The descriptions in the Registration Statement and
Prospectus of contracts and other documents are accurate in all
material respects and fairly present the information required to be
shown; and such counsel does not know of any contracts or documents of
a character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration
Statement (including, for this purpose, all exhibits filed with respect
to any document incorporated by reference therein) that are not
described or filed as required; it being understood that such counsel
need express no opinion as to the financial statements, financial notes
or schedules or other financial or statistical data included therein.
(viii) The Registration Statement has become effective under
the Act, and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
threatened, pending or contemplated. All filings required by Rule 424
and Rule 430A of the Rules and Regulations have been made.
(ix) The execution and delivery of this Agreement by the
Company, the consummation by the Company of the transactions herein
contemplated and the compliance with the terms of this Agreement do not
and will not conflict with or result in a breach of any of the terms or
provisions of or violate or constitute a default under, the Certificate
of Incorporation or By-laws of the Company, or, except, in each case,
for instances that would not result in a Material Adverse Effect or a
material adverse effect on the ability of the Company to perform its
obligations under this Agreement, any material indenture or mortgage
known to such counsel or other material agreement or instrument known
to such counsel to which the Company is a party or by which the Company
or its properties is bound, or any existing federal or New York state
statute, rule or regulation, or any judgment, order or decree known to
such counsel, of any government, governmental instrumentality or
Federal or New York State court, domestic or foreign, having
<PAGE> 18
-18-
jurisdiction over the Company or any of its properties.
Such counsel has participated in the preparation of the
Registration Statement and Prospectus. Although such counsel is not passing upon
and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Prospectus on the basis of the foregoing (relying as to materiality to a large
extent on discussions with, and representations and opinions of officers and
other representatives of the Company), no facts have come to the attention of
such counsel to lead him to believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such counsel
need express no opinion), at the time the Registration Statement or any such
amendment became effective, contained or contains an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (B) that the
Prospectus or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering the foregoing opinions, Such counsel may (i)
state that their opinion is limited to matters governed by the federal laws of
the United States of America, the laws of the State of [ ] and (ii) rely, to the
extent such counsel deems proper, upon the representations set forth herein and
on certificates of public officials and officers of the Company, with respect to
the accuracy of factual matters contained therein which were not independently
established.
(c) The Underwriters shall have received an opinion of
_______, General Counsel for the Company, dated as of the Closing Date, in form
and substance satisfactory to the Underwriters, to the effect that:
<PAGE> 19
-19-
(i) The Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction
in the United States in which it owns or leases property of a nature,
or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a Material Adverse Effect on the Company
and its Subsidiaries, considered as one enterprise.
(ii) Each Subsidiary is a corporation duly organized under the
laws of its jurisdiction of incorporation and is duly qualified to
transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a Material Adverse Effect
on the Company and its Subsidiaries, considered as one enterprise.
(iii) Such counsel does not know of any statutes or
regulations, or any pending or threatened legal or governmental
proceedings, required to be described in the Prospectus that are not
described as required, nor of any contracts or documents of a character
required to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described, referred to or filed as required.
(iv) All of the issued and outstanding shares of the capital
stock of each Subsidiary are validly issued, fully paid and
nonassessable and, to such counsel's knowledge, all of the issued and
outstanding shares of stock of each Subsidiary are owned by the Company
free and clear of all mortgages, pledges, liens, security interests,
conditional sales agreements, charges and encumbrances of every nature.
(v) The Company possesses all state and federal
authorizations, approvals, consents and licenses necessary for the
operations of its business except for such authorizations, approvals,
consents and licenses the failure to possess which would not have a
Material Adverse Affect.
<PAGE> 20
-20-
(vi) The Company is an "air carrier" and a "citizen of the
United States" within the meaning of Section 40102(a)(15) of Title 49
of the United States Code, as amended, holding an air carrier operating
certificate issued by the Secretary of Transportation pursuant to
Chapter 447 of Title 49 of the United States Code, as amended, for
aircraft capable of carrying 10 or more individuals or 6,000 pounds or
more of cargo.
(vii) To the knowledge of such counsel, except as disclosed in
the Prospectus, there is no event of default under any material
agreement or instrument under which indebtedness of the Company is
outstanding or by which it is bound or any of its properties is
subject.
Such counsel has participated in the preparation of the
Registration Statement and Prospectus. Although such counsel is not passing upon
and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Prospectus, on the basis of the foregoing (relying as to materiality to a large
extent on discussions with, and representations and opinions of officers and
other representatives of the Company), no facts have come to the attention of
such counsel to lead him to believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such counsel
need express no opinion), at the time the Registration Statement or any such
amendment became effective, contained or contains an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (B) that the
Prospectus or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
<PAGE> 21
-21-
In rendering the foregoing opinions, Such counsel may (i)
state that their opinion is limited to matters governed by the federal laws of
the United States of America, the laws of the State of [ ] and (ii) rely, to the
extent such counsel deems proper, upon the representations set forth herein and
on certificates of public officials and officers of the Company, with respect to
the accuracy of factual matters contained therein which were not independently
established.
(d) The Underwriters shall have received from Arthur Andersen
LLP a letter dated the date hereof and the Closing Date, and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(e) The representations and warranties of the Company
contained in this Agreement shall be true and correct in all material respects
on and as of the date hereof and on and as of the Closing Date, as if made on
and as of such date; the statements of the Company's officers made pursuant to
any certificate delivered in accordance with the provisions hereof shall be true
and correct in all material respects on and as of the date of the delivery of
such certificate and as of any date referred to therein; the Company shall have
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date; and subsequent to the date of the most recent financial statements
in the Prospectus, there shall have been no Material Adverse Change.
(f) The sale of the Securities by the Company hereunder shall
not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the respective dates as of which information
is given in the Prospectus, except in each case as described in the Prospectus,
none of the Company, or the Subsidiaries shall have incurred any liabilities or
obligations, direct or contingent (other than in the ordinary course of
business), that are material either to the Company and the Subsidiaries, taken
as a whole, and there shall not have been any adverse change in the capital
stock or long-term indebtedness of the Company and its Subsidiaries that is
material to the Company and the Subsidiaries, taken as a whole.
<PAGE> 22
-22-
(h) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the conduct of the
business and operations of each of the Company and its Subsidiaries shall not
have been interfered with by strike, fire, flood, hurricane, accident or other
calamity (whether or not insured) or by any court or governmental action, order
or decree, and, except as otherwise stated therein, the properties of each of
the Company and its Subsidiaries shall not have sustained any loss or damage
(whether or not insured) as a result of any such occurrence, except any such
interference, loss or damage that would not have a Material Adverse Effect.
(i) The Underwriters shall have received certificates, in form
and substance reasonably satisfactory to the Underwriters and [ ], counsel for
the Underwriters, dated the Closing Date, and addressed to the Underwriters, of
the Company, executed by its chief executive officer or president and the chief
financial officer or chief accounting officer, to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects as if made on
and as of the Closing Date, and the Company has performed in all
material respects all covenants and agreements and satisfied all
conditions to be performed or satisfied at or prior to the Closing
Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and,
to the best of such officers' knowledge, no proceedings for those
purposes have been instituted or threatened or are contemplated by the
Commission;
(iii) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
the Company and the Subsidiaries have not sustained any material loss
or interference with their respective businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal or
governmental proceeding and there has not been any material change in
the capital stock, long-term debt, obligations under capital leases or
short-term borrowings or other
<PAGE> 23
-23-
agreements or instruments relating to the ownership of the property of
the Company and the Subsidiaries or any Material Adverse Effect, or any
development which would be reasonably likely to have a Material Adverse
Effect, except in each case as described in or contemplated by the
Prospectus;
(iv) To the best of such officers' knowledge and belief, the
sale of the Securities by the Company has not been enjoined
(temporarily or permanently); and
(v) No stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or the qualification of
the Indenture under the Trust Indenture Act has been issued, and no
proceedings for those purposes have been instituted or, to the best of
such person's knowledge, are threatened or contemplated by the
Commission.
(j) On or before the Closing Date, the Underwriters and [ ],
counsel for the Underwriters, shall have received such further documents,
opinions, certificates and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company and each of its
Subsidiaries as they shall have heretofore reasonably requested.
All such opinions, certificates, letters, schedules, documents
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all respects to
the Underwriters and [ ], counsel for the Underwriters. The Company and each of
its Subsidiaries shall furnish to the Underwriters such conformed copies of such
opinions, certificates, letters, schedules, documents and instruments in such
quantities as the Underwriters shall reasonably request.
8. Indemnification and Contribution.
(a) The Company and each of the Subsidiaries, jointly and
severally, agrees to indemnify and hold harmless each Underwriter, and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as any such losses, claims,
<PAGE> 24
-24-
damages or liabilities (or actions in respect thereof) arise out of or are based
upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto or any Preliminary Prospectus or the Prospectus or
any amendments or supplements thereto or (B) any application or other
document, or any amendment or supplement thereto, executed by the
Company or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction in order to qualify the
Securities under the securities or "Blue Sky" laws thereof or filed
with the Commission or any securities association or securities
exchange (each an "Application"); or
(ii) the omission or alleged omission to state in such
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
any Application, a material fact required to be stated therein or
necessary to make the statements therein not misleading,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any reasonable legal or other out-of-pocket expenses reasonably
incurred by any such Underwriter or any such controlling person in connection
with investigating or defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof; provided that the Company will not be liable in any such case to the
extent, but only to the extent, that any such loss, claim, damage, or liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendments or supplements thereto, or any Application in reliance upon and in
conformity with written information furnished to the Company by the Underwriters
through the Underwriters with respect to the Underwriters specifically for use
therein; provided, further, that the Company and each of the Subsidiaries will
not be liable to any Underwriter if such untrue statement or omission or alleged
untrue statement or omission was contained or made in any Preliminary Prospectus
and completely corrected in the Prospectus and any such loss, liability, claim,
damage or expense suffered or incurred by any Underwriter resulted from any
action, claim or suit by any person who purchased Securities that are the
subject thereof from any Underwriter and such Underwriter failed to deliver or
pro-
<PAGE> 25
-25-
vide a copy of the Prospectus relating to the Securities to such person with or
prior to the confirmation of the sale of such Securities sold to such person in
any case where delivery is required by the Act or the Rules and Regulations,
unless such failure to deliver or provide a copy of the Prospectus relating to
the Securities was a result of noncompliance by the Company with Section
5(e)(ii) of this Agreement. This indemnity agreement will be in addition to any
liability that the Company and each of the Subsidiaries may otherwise have to
the indemnified parties. The Company and each of the Subsidiaries shall not be
liable under this Section 8 for any settlement of any claim or action effected
without its prior written consent, which shall not be unreasonably withheld. The
Underwriters shall not, without the prior written consent of the Company, effect
any settlement or compromise of any pending or threatened proceeding in respect
of which the Company is or could have been a party, or indemnity could have been
sought hereunder by the Company, unless such settlement (A) includes an
unconditional written release of the Company, in form and substance reasonably
satisfactory to the Company, from all such liability on claims that are the
subject matter of such proceeding and (B) does not include any statement as to
an admission of fault, culpability or failure to act by or on behalf of the
Company.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors and each of its officers who signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities to which the Company, or any
such director, officer or controlling person may become subject under the Act,
the Exchange Act, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or any Application, or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Underwriters
specifically for use therein; and, subject to the
<PAGE> 26
-26-
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability that the Underwriters may
otherwise have to the indemnified parties. No Underwriter shall be liable under
this Section 8 for any settlement of any claim or action effected without its
prior written consent, which shall not be unreasonably withheld. The Company
shall not, without the prior written consent of the applicable Underwriter,
effect any settlement or compromise of any pending or threatened proceeding in
respect of which such Underwriter is or could have been a party, or indemnity
could have been sought hereunder by such Underwriter, unless such settlement (A)
includes an unconditional written release of such Underwriter, in form and
substance reasonably satisfactory to such Underwriter, from all such liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of such Underwriter.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 8, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof, but the omission so to notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a) or (b) above unless and to the
extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligations provided in paragraphs (a) and (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have been
advised by counsel that there may be one or more legal defenses available to it
and/or other indemnified parties that are different from or additional to those
available to the indemni-
<PAGE> 27
-27-
fying party, then the indemnifying party shall not have the right to direct the
defense of such action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select separate counsel to
defend such action on behalf of such indemnified party or parties. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by any Underwriter in the case of paragraph (a) of this Section 8 or
the Company, in the case of paragraph (b) of this Section 8, representing the
indemnified parties under such paragraph (a) or paragraph (b), as the case may
be, who are parties to such action or actions), (ii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party or (iii) the indemnifying party shall have failed to
assume the defense or retain counsel reasonably satisfactory to the indemnified
party. After such notice from the indemnifying party to such indemnified party,
the indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party, which consent shall not be unreasonably withheld.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is for any reason unavailable
or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i)
<PAGE> 28
-28-
is not permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as (x) the total proceeds from the offering (net of
underwriter's discounts and commissions but before deducting expenses) received
by the Company and (y) the total underwriting discounts and commissions received
by the Underwriters, respectively, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by an indemnified party or
parties on the one hand, or the indemnifying party or parties on the other, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Company on the one hand and the Underwriters on the other hand were treated as
one entity for such purpose) or by any other method of allocation that does not
take into account the equitable considerations referred to in the first sentence
of this paragraph (d). Notwithstanding any other provision of this paragraph
(d), no Underwriter shall be obligated to make contributions hereunder that in
the aggregate exceed the total underwriting discounts and commissions received
by such Underwriter under this Agreement, less the aggregate amount of any
damages that such Underwriter has otherwise paid or been required to pay by
reason of the untrue or alleged untrue statements or the omissions or alleged
omissions to state a material fact, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, and each officer of the Company
who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the
<PAGE> 29
-29-
Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company.
9. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Company, the Company's officers, and the Underwriters set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company or any of its officers or
directors, the Underwriters or any controlling person referred to in Section 8
hereof and (ii) delivery of and payment for the Securities. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6
and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
10. Termination.
(a) This Agreement may be terminated in the sole discretion of
the Underwriters by notice to the Company, given prior to the Closing Date, in
the event that the Company shall have failed, refused or become unable to
perform all obligations and satisfy all conditions on its part to be performed
or satisfied hereunder at or prior thereto or, if at or prior to the Closing
Date:
(i) trading in securities generally on the New York Stock
Exchange, Inc., the American Stock Exchange or the Nasdaq Stock Market
shall have been suspended or minimum or maximum prices shall have been
established on any such exchange;
(ii) a banking moratorium shall have been declared by New York
or United States authorities; or
(iii) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency or (C) any material change in the financial
markets of the United States which, in the sole judgment of the
Underwriters, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities as contemplated by
the Registration Statement, as amended as of the date hereof.
<PAGE> 30
-30-
(b) Termination of this Agreement pursuant to this Section 10
shall be without liability of any party to any other party except as provided in
Section 9 hereof.
11. Increase in Underwriters' Commitments. If any Underwriter
shall default in its obligation to take up and pay for the Securities to be
purchased by it hereunder on the Closing Date and if the amount of Securities
that all Underwriters so defaulting shall have agreed but failed to take up and
pay for does not exceed 10% of the total number of Securities that the
Underwriters are obligated to purchase on the Closing Date, the non-defaulting
Underwriters shall take up and pay for (in addition to the Securities they are
obligated to purchase pursuant to Section 1 hereof) the number of Securities
agreed to be purchased by all such defaulting Underwriters on the Closing Date,
as hereinafter provided. Such Securities shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such Securities shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate amount of
Securities set opposite the names of such non-defaulting Underwriters in
Schedule I.
If a new allocation is made in accordance with the foregoing
provision, you shall have the right to postpone the Closing Date, as the case
may be, for a period not exceeding five business days in order that any
necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
The term Underwriter as used in this agreement shall refer to
and include any Underwriter substituted under this Section 11 with like effect
as if such substituted Underwriter had originally been named in Schedule I.
If the amount of Securities that all Underwriters so
defaulting shall have agreed but failed to take up and pay for exceeds 10% of
the total number of Securities that the Underwriters are obligated to purchase
on the Closing Date, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
12. Information Supplied by the Underwriters
The statements set forth in the last paragraph on the front
cover page of the Prospectus relating to the Securities and paragraph [ ] under
the heading "Underwriting" in the Pro-
<PAGE> 31
-31-
spectus relating to the Securities (to the extent such statements relate to the
Underwriters) constitute the only information furnished by the Underwriters to
the Company for the purposes of Sections 2(b), 8(a) and 8(b) hereof. Each
Underwriter confirms that such statements, to the extent such statements relate
to each such Underwriter, are correct in all material respects.
13. Notices. All communications hereunder shall be in writing
and, if sent to the Underwriters, shall be mailed or delivered or telecopied and
confirmed in writing to the Underwriters in care of [ ], Attention: Corporate
Finance Department, and if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed in writing to Atlas Air, Inc., at 538 Commons Drive,
Golden, Colorado 80401, Attention: Chief Financial Officer.
14. Successors. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors and legal Underwriters, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained. This Agreement and all conditions and
provisions hereof are intended to be and are for the sole and exclusive benefit
of such persons and for the benefit of no other person except that (i) the
indemnities of the Company contained in Section 8 of this Agreement shall also
be for the benefit of any person or persons who control the Underwriters within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii)
the indemnities of the Underwriters contained in Section 8 of this Agreement
shall also be for the benefit of the directors of the Company, the Company's
officers who have signed the Registration Statement, and any person or persons
who control the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act. No purchaser of Securities from the Underwriters will be
deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an
<PAGE> 32
-32-
original, but all of which together shall constitute one and the same
instrument.
<PAGE> 33
-33-
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Company and the Underwriters.
Very truly yours,
ATLAS AIR, INC.
By: ____________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[US Underwriters]
[International Underwriters]
<PAGE> 34
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount of
Senior Notes to be
Underwriters Purchased
- ------------ ---------
<S> <C>
Names of Other Underwriters..................................................... $[ ]
-------------------
Total $[ ]
</TABLE>
<PAGE> 1
EXHIBIT 1.3
ATLAS AIR, INC.
Pass Through Certificates
Underwriting Agreement
Standard Provisions
Date
From time to time, Atlas Air, Inc., a Delaware corporation (the "Company"),
may enter into one or more underwriting agreements (each, an "Underwriting
Agreement") that provide for the sale of Designated Certificates (as defined
below) to the several underwriters named therein. Each Underwriting Agreement
will consist of a pricing agreement substantially in the form of Annex I hereto,
which may incorporate by reference the standard provisions set forth herein and
include such additions and deletions as the parties thereto may determine (the
"Pricing Agreement"). For any Underwriting Agreement, the term "Underwriters"
means the firms named in Schedule I to the applicable Pricing Agreement, and the
term "Representatives" means the firms designated in the Pricing Agreement as
the Representatives of the Underwriters in connection with such Underwriting
Agreement. The term "Representatives" also refers to a single firm acting as
sole representative of the Underwriters and to Underwriters who act without any
firm being designated as their representative.
1. Sale of Pass Through Certificates. The Company proposes that from time
to time Wilmington Trust Company as Pass Through Trustee or another Pass Through
Trustee identified in a Pricing Agreement (the "Pass Through Trustee"), pursuant
to the Pass Through Agreement, as supplemented by a supplement thereto (each, a
"Series Supplement") between the Company and the Pass Through Trustee (such Pass
Through Agreement, as supplemented by each Series Supplement relating to the
Designated Certificates (as defined below) being herein referred to as the "Pass
Through Agreement"), issue Pass Through Certificates ("Pass Through
Certificates") and, subject to the terms and conditions set forth in the
applicable Underwriting Agreement, sell to the several Underwriters therefor the
Pass Through Certificates specified in Schedule II to the related Pricing
Agreement (the "Designated Certificates"). Each series of Designated
Certificates will represent interests in a separate trust (each, a "Trust")
established pursuant to the Pass Through Agreement to fund the purchase of notes
(with respect to any series of Des-
<PAGE> 2
-2-
ignated Certificates, the "Equipment Notes") issued (a) on a nonrecourse basis
by one or more owner trustees pursuant to separate leveraged lease transactions
(such Equipment Notes, the "Leased Aircraft Notes") to finance or refinance a
portion of the equipment cost of aircraft, including engines (each, a "Leased
Aircraft" and, collectively, the "Leased Aircraft"), which have been or will be
leased to the Company pursuant to a separate lease agreement (each such lease
agreement, a "Lease") for each Leased Aircraft, or (b) by, and with recourse to,
the Company (such Equipment Notes, the "Owned Aircraft Notes") either to finance
or refinance all or a portion of the equipment cost of, or to purchase all or a
portion of the outstanding debt with respect to, aircraft, including engines
(each, an "Owned Aircraft" and, collectively, the "Owned Aircraft"; together
with Leased Aircraft, the "Aircraft"), which have been or will be purchased and
owned by the Company. In the case of either Leased Aircraft Notes or Owned
Aircraft Notes, such financing or refinancing is referred to herein as a
"Financing" or "Refinancing", respectively. In connection with each series of
Equipment Notes, the Company will enter into a separate note purchase agreement
(each a "Note Purchase Agreement") in the form given to the Representatives
prior to execution of the relevant Pricing Agreement. Each series of Leased
Aircraft Notes will be issued under a Trust Indenture and Security Agreement
between Wilmington Trust Company, as indenture trustee, or another indenture
trustee identified in a Pricing Agreement (the "Loan Trustee"), and the Owner
Trustee (the "Leased Aircraft Indenture"), the form of which has been given to
the Representatives. Each series of Owned Aircraft Notes will be issued under a
Trust Indenture and Security Agreement between Wilmington Trust Company, as
indenture trustee, or another indenture trustee identified in a Pricing
Agreement, as Loan Trustee, and the Company (the "Owned Aircraft Indenture" and
together with the Leased Aircraft Indenture, the "Indentures"). Capitalized
terms used but not otherwise defined herein shall have the meaning, with respect
to each series of Pass Through Certificates as to which such reference relates,
specified in or pursuant to the Indenture or Note Purchase Agreement relating to
each related series of Equipment Notes.
Each Pricing Agreement shall specify the aggregate face amount of the
Designated Certificates covered thereby, the initial public offering price of
such Designated Certificates, the purchase price to the Underwriters of such
Designated Certificates, the compensation payable to the Underwriters with
respect to such Designated Certificates, the names of the Underwriters of such
Designated Certificates, the names of the Rep-
<PAGE> 3
-3-
resentatives of such Underwriters and the face amount of such Designated
Certificates to be purchased by each Underwriter and shall set forth the date,
time and manner of delivery of such Designated Certificates and payment
therefor. The Pricing Agreement shall also specify certain terms and rights of
such Designated Certificates, and may specify additional representations,
warranties, agreements and conditions applicable to the sale of such Designated
Certificates. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. For each Underwriting
Agreement, the obligations of the related Underwriters shall be several and not
joint.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-_____ the
"Initial Registration Statement") relating to certain equity securities, debt
securities and pass through certificates, including the Designated Certificates,
and the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"). The Company has filed with, or
transmitted for filing to, or shall within some period of time hereafter file
with or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Designated Certificates
pursuant to Rule 424 under the Act.
The term "Preliminary Prospectus" means any preliminary prospectus included
in the Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Act. The
term "Registration Statement" means the various parts of the Initial
Registration Statement, including all exhibits thereto and including (i) the
information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and
deemed by virtue of Rule 430A under the Act to be part of the registration
statement at the time it was declared effective and (ii) the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the registration statement
became effective but excluding Form T-1, each as amended at the time such part
of the registration statement became effective or such part of a registration
statement increasing the size of the offering filed pursuant to Rule 462(b)
under the Act (a "Rule 462(b) Registration Statement"), if any, became or
hereafter becomes effective, such final prospectus in form first filed pursuant
<PAGE> 4
-4-
to Rule 424(b) under the Act, being hereafter called the "Prospectus"; any
reference herein to any preliminary Prospectus or the Prospectus shall be deemed
to refer to and include documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or the Prospectus, as the case may be; any reference to any amendment
to the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to the Prospectus
as amended or supplemented shall be deemed to refer to the Prospectus as amended
or supplemented in relation to the applicable Designated Certificates in the
form in which it is filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof, including any documents incorporated
by reference therein as of the date of such filing. The term "Pass Through
Documents" with respect to any Designated Certificates means the Underwriting
Agreement, the Pass Through Agreement, each Note Document (as defined in the
Pass Through Agreement), any Participation Agreement relating to the Equipment
Notes underlying such Designated Certificates, and each other agreement or
document referred to in the relevant Pricing Agreement. The term "Company PTC
Documents" with respect to any Designated Certificates means the Pass Through
Documents relating to such Designated Certificates to which the Company is or is
intended to be a party.
2. Representations and Warranties. For any Underwriting Agreement and the
related Designated Certificates the Company represents and warrants to, and
agrees with, each Underwriter therefor that:
(a) The Company meets the requirements for use of Form S-3 under the
Act for purposes of the registration under the Act of the Pass Through
Certificates; the Company is the "issuer" within the meaning of the Act and
appropriate registrant with respect to the Pass Through Certificates. The
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to the Representatives
<PAGE> 5
-5-
and, excluding exhibits to the Initial Registration Statement, but
including all documents incorporated by reference in the prospectus
contained therein, to the Representatives for each of the other
Underwriters, has been declared effective by the Commission in such form,
other than a Rule 462(b) Registration Statement, if any, which became
effective upon filing; no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission; no
stop order suspending the effectiveness of the Initial Registration
Statement has been issued and no proceeding for that purpose has been
initiated or, to the Company's knowledge, threatened by the Commission;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Representative expressly for use in the Prospectus
as amended or supplemented relating to such Designated Certificates;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
<PAGE> 6
-6-
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date and Time of Delivery (as defined below) as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Representative with respect to the Designated
Certificates expressly for use in the Prospectus as amended or supplemented
relating to such Designated Certificates; on the effective date of the
Registration Statement the form of the Pass Through Agreement filed as an
exhibit to the Registration Statement did comply in all material respects
with the requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the rules thereunder, and as of the Time of
Delivery the Pass Through Agreement will comply in all material respects
with the requirements of the Trust Indenture Act and the rules thereunder;
(d) Since the date of the latest financial statements included or
incorporated by reference in the Prospectus, there has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus;
(e) The Company has been duly organized, validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power, and authority to own its property
and conduct its business as described in the Prospectus and to perform its
obligations under each such Company PTC Document to which it is, or is to
be, a party; the Company is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
<PAGE> 7
-7-
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole (an "Atlas Material Adverse Effect");
(f) The Company is a "citizen of the United States" (as defined in
Section 40102(a)(15) of Title 49 of the United States Code, as amended and
is an air carrier operating under a certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49 of the United States
Code, for aircraft capable of carrying 10 or more individuals or 6,600
pounds or more of cargo. There is in force with respect to the Company an
air carrier operating certificate issued pursuant to Part 121 of the
regulations under sections of Title 49, United Stated Code (the "Federal
Aviation Act").
(g) The Company PTC Documents relating to such Designated Certificates
to which the Company is, or is to be, a party, have each been duly
authorized by the Company, do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Company, and do not and will not contravene any law,
judgment, governmental rule, regulation, order or decree currently in
effect or in effect at the time of execution and delivery of such document
and applicable to the Company or any of its subsidiaries or the certificate
of incorporation or by-laws of the Company or any of its subsidiaries or
contravene or result in a breach of any of the terms or the provisions of,
or constitute a default under, or result in the creation of any Lien (other
than as permitted under each Lease and each Owned Aircraft Indenture
relating to a series of Equipment Notes) upon the property of the Company
under any indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of its subsidiaries may be bound or affected, which contravention,
breach or default would have an Atlas Material Adverse Effect;
(h) Neither the valid authorization, execution and delivery by the
Company of the Company PTC Documents relating to such Designated
Certificates in accordance with the provisions thereof, nor the
consummation by the Company of any of the transactions contemplated
thereby, requires the consent or approval of,
<PAGE> 8
-8-
the giving of notice to, or the registration with, or the taking of any
other action in respect of, the U.S. Department of Transportation, the
Federal Aviation Administration (the "FAA"), the Commission or any other
federal or state governmental authority or agency, other than (i) the
registration of the issuance and sale of the Pass Through Certificates
under the Act and under the securities laws of any state in which the Pass
Through Certificates may be offered for sale if the laws of such state
require such action, (ii) the qualification of the Pass Through Agreement
under the Trust Indenture Act and (iii) the filing of certain Operative
Documents (as defined in the relevant Note Purchase Agreement) and, in the
case of a Refinancing, Original Documents (as defined in the relevant Note
Purchase Agreement), with the FAA, all of which shall have been or shall be
made on or prior to each relevant Transfer Date (as defined in the Pass
Through Agreement);
(i) The Company PTC Documents (except, with respect to the date of the
Pricing Agreement, each Series Supplement and Company PTC Document
specified in the Pricing Agreement) relating to such Designated
Certificates have been duly executed and delivered by the Company, and each
such Company PTC Document constitutes a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with the terms
thereof, subject, as to enforceability, (A) to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally, (B) to recognized equitable
principles of general application to or affecting the enforcement of
creditors' rights, and (C) to limitations on rights to indemnity under
federal and state securities laws or the public policy underlying such
laws;
(j) None of the Trusts is required to be registered under the
Investment Company Act of 1940, as amended;
(k) The Operative Documents relating to each series of Equipment Notes
are substantially in the form filed or to be filed as exhibits to the
Registration Statement or in a post-effective amendment thereto or a report
by the Company under the Exchange Act, and the Pass Through Agreement has
been duly qualified under
<PAGE> 9
-9-
the Trust Indenture Act; the Designated Certificates, Pass Through
Agreement, Indentures, Note Purchase Agreements, any Leases, any
Participation Agreements, any Intercreditor agreement, any liquidity
facility and other Operative Documents relating to each series of Equipment
Notes, conform or will upon execution conform in all material respects to
the descriptions thereof in the Prospectus as amended or supplemented
relating to such Designated Certificates;
(l) Assuming the accuracy of the representations and warranties of the
Pass Through Trustee contained in each Note Purchase Agreement and in any
Participation Agreement relating to a series of Equipment Notes, the Pass
Through Certificates issued or to be issued under the Pass Through
Agreement, when duly authorized, executed, authenticated and delivered by
the Pass Through Trustee in accordance with the terms thereof, will be duly
issued thereunder and will constitute the valid and binding obligation of
the Pass Through Trustee; and the holders thereof will be entitled to the
benefits of the Pass Through Agreement; in each case except as may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity
or at law);
(m) The documents incorporated by reference into each Preliminary
Prospectus and Prospectus have been, and each document filed by the Company
hereafter pursuant to Section 13, 14 or 15(d) of the Exchange Act prior to
the termination of the offering of the Designated Certificates (such
subsequently filed documents being referred to herein as "Incorporated
Documents") will be, prepared by the Company in conformity in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder and such documents have been, or in the case of an
Incorporated Document will be, timely filed as required thereby; accurate
copies of each of the documents incorporated by reference into each
Preliminary Prospectus and the Prospectus have been delivered by the
Company to the Representatives and accurate copies of any Incorporated
Documents will be delivered to the Representatives promptly upon filing
thereof;
<PAGE> 10
-10-
(n) The accountants that examined and issued an auditors report with
respect to the consolidated financial statements of the Company and its
consolidated subsidiaries included in the Registration Statement and
Prospectus, are independent public accountants within the meaning of the
Act and the rules thereunder;
(o) The consolidated financial statements filed as part of the
Registration Statement or included in, or incorporated by reference into,
any Preliminary Prospectus or Prospectus present fairly, and the financial
statements included in any Incorporated Document will present fairly, the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows or changes in financial position of the Company
and its consolidated subsidiaries for the periods specified. Such financial
statements have been and, in the case of financial statements included in
any Incorporated Document will be, prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved; and
(p) Except as accurately described in all material respects in the
Prospectus and except as would not have an Atlas Material Adverse Effect
and would not materially and adversely affect the ability of the Company to
perform its obligations under any Company PTC Documents to which it is, or
is to be a party, there are no legal or governmental proceedings pending,
or, to the best knowledge of the Company, threatened, to which the Company
or any of its subsidiaries is or may be a party or to which any of the
property of the Company or any of its subsidiaries is or may be the
subject.
In addition, for any Underwriting Agreement and the related Designated
Certificates, all of the representations and warranties by the Company contained
in each Note Purchase Agreement and any Participation Agreement relating to a
series of Equipment Notes are incorporated by reference in such Underwriting
Agreement as if set forth herein, and the Company represents and warrants to
each of the Underwriters with respect to such Designated Certificates that such
representations and warranties are true and correct as of the date of the
Pricing Agreement with respect to such Designated Certificates, except to the
extent that such representations and warranties relate
<PAGE> 11
-11-
solely to an earlier date or later date (in which case such representations and
warranties are correct on and as of such earlier date or will be correct on and
as of such later date, as the case may be).
3. Offer by Underwriters. Upon the execution of the Pricing Agreement
applicable to any Designated Certificates and authorization by the
Representatives of the release of such Designated Certificates, the several
Underwriters propose to offer such Designated Certificates for sale upon the
terms and conditions set forth in the related Prospectus as amended or
supplemented with respect to such Designated Certificates.
4. Delivery and Payment. Designated Certificates to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in definitive
form to the extent practicable, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, at the place and time and date specified in such Pricing Agreement
or at such other place and time and date as the Representatives and the Company
may agree upon in writing or as provided in Section 9 hereof (such date being
herein called the "Closing Date" and such time of delivery and payment for the
Certificates being herein called the "Time of Delivery"). Such delivery of the
Designated Certificates shall be made to the Representatives for the account of
each such Underwriter against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer, payable to the order of the Pass
Through Trustee (or such other person as the Company may direct) in Federal
(same day) funds specified in such Pricing Agreement.
The Company agrees to have the Certificates available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 P.M. on the business day prior to the Closing Date.
5. Agreements. The Company agrees with each of the Underwriters of any
Designated Certificates:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Certificates in a form reasonably approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following
<PAGE> 12
-12-
the execution and delivery of the Pricing Agreement relating to the
applicable Designated Certificates or, if applicable, such earlier time as
may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Designated Certificates and prior to the Time of Delivery for such
Designated Certificates which shall be reasonably disapproved by the
Representatives for such Designated Certificates promptly after reasonable
notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Designated Certificates,
and during such same period to advise the Representatives, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed, or
transmitted for filing, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any prospectus relating
to such Designated Certificates, of the suspension of the qualification of
such Designated Certificates for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to such
Designated Certificates or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) To cooperate with you and counsel for the Underwriters for the
qualification of such Designated Certificates for sale under the laws of
such jurisdictions as you may reasonably designate, to maintain such
qualifications in effect so long as required for the distribution of such
Designated Certificates and will cooperate with you and counsel for the
Underwriters in
<PAGE> 13
-13-
determining the legality of such Designated Certificates for purchase by
institutional investors. The Company, however, shall not be obligated to
qualify as a foreign corporation or file any general consent to service of
process under the laws of any such jurisdiction or subject itself to
taxation as doing business in any such jurisdiction;
(c) As soon as practicable but in no case later than noon, New York
City time, on the New York Business Day next succeeding the date of any
Pricing Agreement and from time to time, to furnish the Underwriters with
copies of the Prospectus in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of such Designated Certificates and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities (it being
understood that each such Underwriter and dealer shall, at the Company's
request, be specified by the Representatives to the Company) as many copies
as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance; and in case the
Representatives or any of the Underwriters or any dealer in securities is
required to deliver a prospectus in connection with sales of any Designated
Certificates at any time nine months or more after the time of issue of the
Prospectus as amended or supplemented relating to such Designated
Certificates, then upon the request of the Representatives, but at the
expense of the Representatives, the relevant Underwriters or the relevant
dealers in securities, as the case may be, the Company shall prepare
<PAGE> 14
-14-
and deliver to the Representatives, such Underwriters or such dealers in
securities as many copies as the Representatives may request of any amended
or supplemented prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than 18 months after the effective
date of the Registration Statement (as defined in Rule 158(c)), an earning
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of
the Commission thereunder (including at the option of the Company Rule
158); (e) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of the
applicable Pricing Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Act; and
(f) During the period beginning from the date of the Pricing Agreement
for such Designated Certificates and continuing to and including the
earlier of (i) the termination of trading restrictions for such Designated
Certificates, as notified to the Company by the Representatives, and (ii)
the Time of Delivery for such Designated Certificates, not to offer, sell,
contract to sell or otherwise dispose of any public debt securities
registered under the Act or any debt securities which may be sold in a
transaction exempt from the registration requirements of the Act in
reliance on Rule 144A under the Act and which are marketed through the use
of a disclosure document containing substantially the same information as a
prospectus for similar debt securities registered under the Act without the
prior written consent of the Representatives, which consent shall not be
unreasonably withheld.
In addition, the Company agrees with each Underwriter of Designated
Certificates that, if the purchase of any Equipment Notes is delayed pursuant to
a Postponement Notice (as defined
<PAGE> 15
-15-
in the Pass Through Agreement) then, prior to any such purchase all conditions
specified in any related Participation Agreement, Note Purchase Agreement or
Pass Through Agreement to be performed or satisfied at or prior to such purchase
shall have been performed or satisfied; and the Company will provide (or cause
to be provided) to the Representatives executed copies of all documents
delivered under such Participation Agreement, Note Purchase Agreement or Pass
Through Agreement and of each opinion to be delivered pursuant to such
Participation Agreement (other than any opinion delivered to an Owner
Participant (in the case of any Leased Aircraft Notes) relating solely to tax
matters), Note Purchase Agreement or Pass Through Agreement, addressed to the
Representatives on behalf of the Underwriters or accompanied by a letter from
counsel rendering such opinion authorizing the Underwriters to rely on such
opinion as if it were addressed to them.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters of any Designated Certificates under the Underwriting Agreement
relating to such Designated Certificates shall be subject, at the discretion of
the Representatives, to the condition that all representations and warranties
and other statements of the Company in or incorporated by reference in the
Underwriting Agreement relating to such Designated Certificates are, at and as
of the Time of Delivery for such Designated Certificates, true and correct in
all material respects, except to the extent that such representations and
warranties relate solely to an earlier date or later date (in which case such
representations and warranties are correct on and as of such earlier date or
will be correct on and as of such later date, as the case may be), the condition
that the Company shall have performed in all material respects all of its
obligations under such Underwriting Agreement theretofore to be performed, and
the following additional conditions:
(a) The Prospectus as amended and supplemented in relation to the
applicable Designated Certificates shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 P.M., Washington, D.C. time, on the date of the Pricing
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued
<PAGE> 16
-16-
and no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) At the Time of Delivery, the Representatives shall have received:
(1) An opinion of Cahill Gordon & Reindel, special counsel for the
Company, dated the Time of Delivery for the Designated Certificates, in
substantially the form of Exhibit A attached hereto;
(2) Counsel for the Company reasonably satisfactory to the
Representatives (it being understood that the Company's General Counsel,
Associate General Counsel or an Assistant General Counsel is reasonably
satisfactory to the Representatives) shall have furnished to the Representatives
their written opinion, dated the Time of Delivery for the Designated
Certificates, in substantially the form of Exhibit B attached hereto;
(3) Counsel for the Pass Through Trustee shall have furnished to the
Representatives their written opinion, dated the Time of Delivery for the
Designated Certificates, in substantially the form of Exhibit C attached hereto;
(4) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for the
Designated Certificates, with respect to the incorporation of the Company, the
validity of the Designated Certificates and the Pass Through Agreement with
respect thereto, the Registration Statement, the Prospectus and other related
matters as you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(5) A certificate of the Company, signed by any two of the Chairman,
President, Senior Vice President-Finance, Vice President-Treasurer or Vice
President-Comptroller, dated the Time of Delivery for the Designated
Certificates, to the effect that:
(i) the representations and warranties of the Company in or
incorporated in such Underwriting Agreement are true and correct in
all material respects on and as of the Time of
<PAGE> 17
-17-
Delivery with the same effect as if made at the Time of Delivery and
the Company has complied with all the agreements and satisfied all the
conditions herein and in each Note Purchase Agreement and any
Participation Agreement relating to a series of Equipment Notes on its
part to be performed or satisfied at or prior to the Time of Delivery;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or to the Company's knowledge,
threatened; and
(iii) since the date of the latest financial statements included
or incorporated by reference in the Prospectus, there has been no
material adverse change in the financial condition or operations of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus as amended or
supplemented;
(c) On the date of the Pricing Agreement for such Designated
Certificates and at the Time of Delivery for the Designated Certificates,
Arthur Andersen LLP, the independent accountants of the Company, who have
audited the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement, shall
have furnished to the Representatives a Letter, dated the effective date of
the Registration Statement or the date of the most recent report filed with
the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with respect
to such letter dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance reasonably
satisfactory to the Representatives;
(d) Subsequent to the time of execution of the Pricing Agreement
relating to the Designated Certifi-
<PAGE> 18
-18-
cates, there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (c) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries,
taken as a whole, the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the reasonable judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to proceed
with the public offering or the delivery of the Designated Certificates as
contemplated by the Prospectus as amended or supplemented;
(e) Subsequent to the time of execution of the Pricing Agreement
relating to the Designated Certificates (i) there shall not have been any
decrease in the ratings of any of the Company's debt securities by Standard
& Poor's Ratings Service or Moody's Investors Service, Inc. and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's unsecured debt securities;
(f) All conditions specified in each Note Purchase Agreement and any
Participation Agreement relating to a series of Equipment Notes to be
performed or satisfied on or prior to the relevant Transfer Date shall have
been performed or satisfied; and the Representatives shall have received
copies of all documents delivered under each such Note Purchase Agreement
and Participation Agreement, which shall be executed copies in the case of
Operative Documents and such other documents as the Representatives shall
reasonably request and shall be true and complete copies of executed
documents in the case of any other documents, and executed copies of each
opinion to be delivered pursuant to each such Note Purchase Agreement and
Participation Agreement (other than, in the case of any Leased Aircraft
Notes, any opinion delivered to the Owner Participant relating to solely
tax matters), addressed to the Representatives on behalf of the
Underwriters or accompanied by a letter from counsel rendering such opinion
authorizing the Underwriters to rely on such opinion as if it were
addressed to them; provided, however, that this condition (f) need not be
satisfied prior to the Time of Delivery with respect to conditions
specified in any such Note Purchase Agreement or Participation
<PAGE> 19
-19-
Agreement under which the purchase of the Equipment Notes contemplated
thereby is delayed until after the Time of Delivery pursuant to a
Postponement Notice to the Pass Through Trustee pursuant thereto;
(g) Prior to the Time of Delivery, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request; and
(h) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of the Pricing Agreement.
All such opinions, certificates, letters and documents shall be deemed to
be in compliance with the provisions hereof only if they are in all material
respects reasonably satisfactory to the Representatives and counsel to the
Underwriters; provided, however, to the extent that any of the matters set forth
in the opinions annexed as Exhibits A, B or C hereto shall be separately covered
in substantially the same form in legal opinions of the relevant legal counsel
addressed to the Representatives and delivered at the Time of Delivery in
connection with the Note Purchase Agreement or Participation Agreements, such
other legal opinions shall be deemed to satisfy the foregoing requirements to
the extent of the matters covered.
For any Underwriting Agreement, if any condition specified in this Section
shall not have been fulfilled in all material respects when and as required to
be fulfilled, other than by reason of any default by any Underwriter, such
failure to fulfill a condition may be waived by the Representatives, or such
Underwriting Agreement may be terminated by the Representatives by written
notice to the Company at, or at any time prior to, the Time of Delivery for the
related Designated Certificates. Notice of such termination shall be given to
the Company in writing or by oral communication or telegraph confirmed in
writing.
7. Payment of Expenses. For any Underwriting Agreement, the Company will
pay the reasonable costs incident to the authorization, issuance, sale and
delivery of the Designated Certificates to be sold to the Underwriters and any
taxes payable in that connection; the reasonable costs (other than fees and
disbursements of counsel for the Underwriters, except as provided below)
incident to the preparation, printing and fil-
<PAGE> 20
-20-
ing under the Act of the Registration Statement and any amendments and exhibits
thereto, any Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto; the costs incident to the preparation, printing and filing
of any document and any amendments and exhibits thereto required to be filed by
the Company under the Exchange Act, any Incorporated Document or any other
document relating to any of the transactions contemplated by any of the Note
Purchase Agreements or Participation Agreements relating to the Equipment Notes
in connection with any such transaction or the related Financing or Refinancing,
as the case may be; the costs of distributing the Registration Statement as
originally filed and each amendment thereto (including exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus and any documents incorporated by reference in any of the foregoing
documents, as provided in such Underwriting Agreement; the fees paid to rating
agencies in connection with the rating of the Designated Certificates; the costs
incident to issuance and delivery of the Designated Certificates to the
Underwriters; the fees and expenses of qualifying the Designated Certificates
under the securities laws of the several jurisdictions as provided in this
Section and of preparing a Blue Sky Memorandum and a memorandum concerning the
legality of the Designated Certificates as an investment (including reasonable
fees and disbursements and other charges of counsel to the Underwriters ("Blue
Sky Fees")); and all other costs and expenses incident to the performance of the
obligations of the Company under such Underwriting Agreement; provided that,
except as provided in this Section and in Sections 8 and 12, each of the
Underwriters shall pay its own expenses (including the fees of counsel for the
Underwriters (other than Blue Sky Fees)) and the expenses of advertising any
offering of the Designated Certificates made by it.
8. Indemnification and Contribution. For any Underwriting Agreement:
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
mate-
<PAGE> 21
-21-
rial fact contained in the Registration Statement or in any amendment
thereof, or in any Preliminary Prospectus, preliminary prospectus
supplement relating to the Designated Certificates or the Prospectus, or in
any amendment thereof or supplement thereto, or in any other prospectus
relating to the Pass Through Certificates, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Representatives specifically for use
therein, (ii) such indemnity with respect to any Preliminary Prospectus
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) as to whom it shall be established did not
send or deliver to the person asserting any such loss, claim, damage or
liability and who purchased the Designated Certificates which are the
subject thereof a copy of the Prospectus as amended or supplemented
excluding documents incorporated therein by reference at or prior to the
written confirmation of the sale of such Designated Certificates to such
person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such
Preliminary Prospectus was corrected in the Prospectus as amended or
supplemented and (iii) the Company will not be Liable for any such loss,
claim, damage or liability in connection with any settlement of any pending
or threatened litigation or any pending or threatened governmental agency
investigation or proceeding if that settlement is effected without the
prior written consent of the Company, which consent shall not be
unreasonably withheld. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
<PAGE> 22
-22-
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any loss, claim, damage, liability or action, but only with
reference to written information furnished to the Company by or on behalf
of any Underwriter specifically for inclusion in the Registration
Statement, any Preliminary Prospectus, any preliminary prospectus
supplement relating to the Designated Certificates, the Prospectus, or in
any amendment thereof or supplement thereto, or any other prospectus
relating to the Designated Certificates. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action or proceeding (including any
governmental investigation), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against the indemnifying
party under Section 8 (a) or (b) hereof, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any Liability which it may have
to such indemnified party otherwise than under this Section 8 (a) or (b)
hereof, and then only to the extent that the indemnifying party is
prejudiced thereby. In case any such action or proceeding is brought
against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein (jointly with any other indemnifying party similarly
notified), and to the extent that it may elect, by written notice,
delivered to such indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that
<PAGE> 23
-23-
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to defend such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to appoint counsel to
defend such action and approval by the indemnified party of such counsel,
the indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed separate counsel in accordance
with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses
of more than one separate counsel, approved by the Underwriters in the case
of paragraph (a) of this Section 8, representing the indemnified parties
under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or
(b) of this Section 8 is due in accordance with its terms but is for any
reason unavailable on grounds of policy or otherwise, the Company and the
Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company and
one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the
Designated Certificates to which such loss, claim, damage, or liability (or
action in respect thereof) relates. If the allocation
<PAGE> 24
-24-
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable to such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total proceeds from such offering net of compensation paid to the
Underwriters with respect thereto (but before deducting expenses) bear to
the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or such Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding (including any governmental
investigation) against such party in respect of which a claim for
contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have here under or otherwise than under
this paragraph (d), except to the extent that the party or parties is
prejudiced thereby. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
<PAGE> 25
-25-
thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which (i) the total price at which the applicable Designated
Certificates underwritten by it and distributed to the public were offered
to the public exceeds (ii) the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls any Underwriter within the meaning of either the Act or
the Exchange Act shall have the same rights to contribution as any
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each
case to the provisions of this paragraph (d). The obligations of the
Underwriters of Designated Certificates in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Designated Certificates and not joint.
9. Default by an Underwriter. (a) If any Underwriter shall default in its
obligation to purchase the Designated Certificates which it has agreed to
purchase under the Underwriting Agreement relating to such Designated
Certificates, the Representatives with respect thereto may in their discretion
arrange for themselves or another party or other parties to purchase such
Designated Certificates on the terms contained herein. If within thirty-six
hours after such default by any Underwriter such Representatives do not arrange
for the purchase of such Designated Certificates, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties reasonably satisfactory to the Representatives to
purchase such Designated Certificates on such terms. In the event that, within
the respective prescribed period, such Representatives notify the Company that
they have so arranged for the purchase of such
<PAGE> 26
-26-
Designated Certificates, or the Company notifies such Representatives that it
has so arranged for the purchase of such Designated Certificates, such
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Designated Certificates for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the
reasonable opinion of such Representatives may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to the Underwriting Agreement with respect to such Designated
Certificates.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Certificates of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate face amount of any series of such Designated Certificates which
remains unpurchased does not exceed one-eleventh of the aggregate face amount of
the relevant series of such Designated Certificates, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the face amount
of Designated Certificates which such Underwriter agreed to purchase under the
Underwriting Agreement relating to such Designated Certificates and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the face amount of Designated Certificates which such
Underwriter agreed to purchase under such Underwriting Agreement) of the
Designated Certificates of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Certificates of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate face amount of any series of Designated Certificates which remains
unpurchased exceeds one-eleventh of the aggregate face amount of the relevant
series of such Designated Certificates, as referred to in subsection (b) above,
or if the Company shall not exercise the right described in subsection (b) above
to require non-defaulting Underwriters to purchase Designated Certificates of a
defaulting Underwriter or Underwriters, then the Underwriting Agreement relating
to such Designated Certificates shall there-
<PAGE> 27
-27-
upon terminate, without liability on the part of any non-defaulting Underwriter
or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Sections 7 and 12 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. Termination. Any Underwriting Agreement shall be subject to termination
in the discretion of the Representatives with respect thereto, by notice given
to the Company prior to Time of Delivery for the applicable Designated
Certificates, if prior to such time (i) trading in the Company's common stock
shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred any
material outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the reasonable judgment of such Representatives, impracticable
to market such Designated Certificates.
11. Representations and Indemnities to Survive. The respective indemnities,
agreements, representations, warranties and other statements of the Company or
its officers and of the Underwriters as set forth in or made by or pursuant to
any Underwriting Agreement shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any such Underwriter or the Company or any of the officers, directors
or controlling persons of the Company or the Underwriters referred to in Section
8 hereof, and shall survive delivery of and payment for the Designated
Certificates relating to such Underwriting Agreement. The provisions of Sections
8, 11 and 12 of such Underwriting Agreement shall survive the termination or
cancellation of such Underwriting Agreement.
12. Reimbursement of Underwriters' Expenses. If the Underwriting Agreement
relating to the sale of any Designated Certificates shall be terminated pursuant
to Section 9 or Section 10 hereof, then the Company shall not then be under any
liability to any Underwriter with respect to the Designated Certificates
relating to such Underwriting Agreement except as provided in Section 7 and
Section 8 hereof; but if the sale of any Designated Certificates is not
consummated because any condition set forth in Section 6 hereof is not
satisfied, because
<PAGE> 28
-28-
of any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement in the
Underwriting Agreement relating to such Designated Certificates or comply with
any provision thereof other than by reason of a default by any of the
Underwriters for such Designated Certificates, the Company will reimburse such
Underwriters severally through the Representatives upon demand for all
reasonable out-of-pocket expenses approved in writing by the Representatives
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Designated Certificates but the Company shall then be under no further liability
to any Underwriter with respect to such Designated Certificates except as
provided in Section 7 and Section 8 hereof.
13. Notices. In all dealings hereunder, the Representatives of the
Underwriters of Designated Certificates shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives Jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Treasurer (with a copy to the General
Counsel); provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. Successors. Each Underwriting Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters thereunder, the Company and, to
the extent provided in Section 8 and Section 11 hereof, the officers and
directors of the Company and each person who controls the Company or any such
Underwriter, and their respective heirs, executors, admin-
<PAGE> 29
-29-
istrators, successors and assigns, and no other person shall acquire or have any
right under or by virtue of such Underwriting Agreement. No purchaser of any of
the Pass Through Certificates from any Underwriter therefor shall be deemed a
successor or assign by reason merely of such purchase.
15. Time is of Essence. Time shall be of the essence of each Underwriting
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business and "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
16. APPLICABLE LAW. EACH UNDERWRITING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Counterparts. Each Underwriting Agreement may be executed by any one or
more of the parties thereto in any number of counterparts, each of which shall
be deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
Very truly yours,
ATLAS AIR, INC.
By:___________________
Name:
Title:
<PAGE> 30
Annex I
Underwriting Agreement
PRICING AGREEMENT
Dear Sirs:
Atlas Air, Inc., a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions set forth or incorporated by reference herein to
cause the Pass Through Trustee (as defined in the Standard Provisions referred
to below) to issue and sell to each of the Underwriters named in Schedule I
hereto (the "Underwriters") the Pass Through Certificates, Series _, specified
in Schedule II hereto (the "Designated Certificates"). Each of the provisions of
the document entitled Atlas Air, Inc. Pass Through Certificates Underwriting
Agreement Standard Provisions dated _________, 1998 (the "Standard Provisions")
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions of
the Standard Provisions so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Standard Provisions
are used herein as therein defined. The Representative designated to act on
behalf of the Representatives and on behalf of each of the Underwriters of the
Designated Certificates pursuant to Section 13 of the Underwriting Agreement and
the address of the Representatives referred to in such Section 13 are set forth
at the end of Schedule II hereto.
Subject to the terms and conditions set forth or incorporated by reference
herein, each of the Underwriters agrees, severally and not jointly, to purchase
from the Pass Through Trustee, at the time and place and at the purchase price
to the Underwriters set forth in Schedule II hereto, the face amount of each
series of Designated Certificates set forth opposite the name of such
Underwriter in Schedule I hereto.
As compensation to each of the Underwriters for their respective
commitments and obligations hereunder in respect of the Designated Certificates,
including their undertaking to offer the Designated Certificates for sale to the
public, the Company will pay (or cause to be paid) to the Representatives for
the respective accounts of the Underwriters the percentage
<PAGE> 31
-30-
of the aggregate face amount of each series of Designated Certificates purchased
by each Underwriter as set forth on Schedule II hereto. Such payment will be
made by wire transfer in Federal (same day) funds to the order of
_____________________ at the time heretofore agreed by the Company and the
Representatives. If the foregoing is in accordance with your understanding,
please sign and return to us four counterparts hereof, and upon acceptance
hereof to you, on behalf of each of the Underwriters, this Letter and such
acceptance hereof, including the provisions of the Standard Provisions
incorporated by reference herein, shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that your acceptance
of this Letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination, upon request.
Very truly yours,
ATLAS AIR, INC.
By:___________________
Name:
Title:
Accepted as of the date hereof:
Name of designated Representative
By: _____________________________
Title:
On behalf of each of the Underwriters
<PAGE> 32
SCHEDULE I
Face
Amount of
Designated
Certificates
to be
Underwriter Purchased*
- --------------------------- ..................................... ----------
- --------------------------- ..................................... ----------
- --------------------------- ..................................... ----------
Repeat column for each series of Designated Certificates.
-----------
Total..........................................
===========
<PAGE> 33
SCHEDULE II
Title of Designated Certificates:
Aggregate face amount:
Price to Public:
Purchase Price of Underwriters:
Final Maturity:
Rate:
Regular Distribution Dates:
Special Distribution Dates:
Record Dates:
Denominations:
Compensation to Underwriters (as a percentage of face amount of
Designated Certificates):
Concession to Dealers (as a percentage of face amount of Designated
Certificates):
Reallowance Concessions (as a percentage of face amount of Designated
Certificates):
Time of Delivery:
Closing Location:
Names and addresses of Representatives:
Trust Property:
The property held in each Trust relating to the Series ___ and Series ___
Designated Certificates will consist of leased aircraft notes(the Leased
Aircraft Notes" or "Equipment Notes from each of ___ separate series of Leased
Aircraft Notes being issued as nonrecourse obligations by the Owner Trustee in
connection with the financing refinancing of the debt equity portion of the
purchase price paid by such Owner Trustee on behalf of _________ separate Owner
Trusts, respectively, in respect of ____ separate Aircraft which were leased to
the Company in ____ separate leveraged lease transactions identified on Annex A
<PAGE> 34
-34-
hereto and owned aircraft notes ("Owned Aircraft Notes" or "Equipment Notes")
being issued with recourse to the Company in connection with the financing
refinancing of the debt equity portion of the purchase price paid by the Company
in respect of ___ separate Aircraft for the Company's general corporate
purposes, using Owned Aircraft as collateral. Each Trust will include Equipment
Notes with identical interest rates, in each case equal to the rate applicable
to the Series ___ or Series ___ Designated Certificates, as the case may be, and
will have maturity dates on or before the final distribution date for the Series
___ or Series ___ Designated Certificates, as the case may be. For each such
Trust, the aggregate principal amount of the Equipment Notes held in such Trust
will equal the aggregate amount of the related series of Designated
Certificates.
Other Terms:
For each of the ___ Aircraft, _ series of Equipment Notes, each of which
will have a different principal amount, interest rate, maturity date and
schedule of principal payments, will be issued under the related Indenture. The
aggregate principal amounts of the Equipment Notes issued with respect to each
Aircraft, as such Equipment Notes are held in each of the Trusts, are as set
forth on Annex B hereto.
Additional Covenants:
The Company agrees with each of the Underwriters to cause to be filed with
the Securities and Exchange Commission prior to the Time of Delivery the
following agreements:
refer to Operative Documents and Pass Through Documents other than the Pass
Through Agreement and the indentures.
Intercreditor Arrangements: Specify and provide details, if any.
Liquidity Facility or Other Credit Support: Specify and provide details, if
any.
Additional Pass Through Documents:
Liquidity Facility documents
Intercreditor Agreement
Deposit Agreement or similar arrangement referred to in Section 2.01 of
the Pass Through Agreement
Variation of Standard Terms: Specify, if any
<PAGE> 35
Annex II
ATLAS AIR, INC.
Pursuant to Section 6(c) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the representative or
representatives of the Underwriters (the "Representatives") such term
to include an Underwriter or Underwriters who act without any firm
being designated as its or their representatives and are attached
hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of operations,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or in-
<PAGE> 36
-36-
cluded in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon
copies of which are attached hereto; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to
in paragraph (vi)(A)(i) below comply as to form in all, material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations,
nothing came to their attention that caused them to believe that the
unaudited condensed consolidated financial statement do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
<PAGE> 37
-37-
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements of operations,
consolidated balance sheets and consolidated statements of cash flows included
in the Prospectus and/or included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do
not comply as to form in all materials respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations, or (ii) any material medications should be made to the unaudited
condensed consolidated statements of operations, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or included in
he Company's Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited financial statements from which such data and items were derived, and
any such unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred t o in Clause (B)
were
<PAGE> 38
-38-
not determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the Act
and the published rules and regulations thereunder or the pro forma adjustments
have not been properly applied to the historical amounts in the compilation of
those statements;
(E) as of a specified date not more than five days prior to the date of
such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in consolidated operating
revenues or operating income or the total or per share amounts of consolidated
net income available to common shareholders or other items specified by the
Representatives, or any increases in any items specified by the Representatives,
except in each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such Letter; and
(vii) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts,
<PAGE> 39
-39-
percentages and financial information specified by the Representatives which are
derived from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the Letter delivered at the Time of Delivery for such Designated
Securities.
<PAGE> 1
EXHIBIT 4.1
FORM OF PASS THROUGH TRUST AGREEMENT
PASS THROUGH TRUST AGREEMENT
Dated as of ____________ , 1999
between
ATLAS AIR, INC.
and
WILMINGTON TRUST COMPANY
as Trustee
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINITIONS
Section 1.01. Definitions............................................................................ 2
Section 1.02. Compliance Certificates and Opinions................................................... 12
Section 1.03. Form of Documents Delivered to Trustee................................................. 13
Section 1.04. Directions of Certificateholders....................................................... 13
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF THE TRUST PROPERTY
Section 2.01. Amount Unlimited; Issuable in Series................................................... 15
Section 2.02. Acquisition of Equipment Notes......................................................... 17
Section 2.03. Acceptance by Trustee.................................................................. 19
Section 2.04. Limitation of Powers................................................................... 20
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates...................................... 20
Section 3.02. Authentication of Certificates......................................................... 21
Section 3.03. Temporary Certificates................................................................. 21
Section 3.04. Transfer and Exchange.................................................................. 22
Section 3.05. Book-Entry and Definitive Certificates................................................. 22
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates...................................... 24
Section 3.07. Persons Deemed Owners.................................................................. 25
Section 3.08. Cancellation........................................................................... 25
Section 3.09. Limitation of Liability for Payments................................................... 25
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account....................................... 26
Section 4.02. Distributions from Certificate Account and Special Payments Account.................... 27
Section 4.03. Statements to Certificateholders....................................................... 29
Section 4.04. Investment of Special Payment Moneys................................................... 30
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence..................................................... 30
Section 5.02. Consolidation, Merger, Etc............................................................. 30
ARTICLE VI
DEFAULT
Section 6.01. Events of Default...................................................................... 31
Section 6.02. Incidents of Sale of Equipment Notes................................................... 33
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit..................... 33
Section 6.04. Control by Certificateholders.......................................................... 34
Section 6.05. Waiver of Past Defaults................................................................ 34
Section 6.06. Right of Certificateholders to Receive Payments Not to Be Impaired..................... 35
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain Conditions.................. 35
Section 6.08. Remedies Cumulative.................................................................... 36
Section 6.09. Undertaking for Costs.................................................................. 36
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities.................................................... 36
Section 7.02. Notice of Defaults..................................................................... 37
Section 7.03. Certain Rights of Trustee.............................................................. 37
Section 7.04. Not Responsible for Recitals or Issuance of Certificates............................... 39
Section 7.05. May Hold Certificates.................................................................. 39
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 7.06. Money Held in Trust.................................................................... 39
Section 7.07. Compensation and Reimbursement......................................................... 39
Section 7.08. Corporate Trustee Required; Eligibility................................................ 40
Section 7.09. Resignation and Removal, Appointment of Successor...................................... 41
Section 7.10. Acceptance of Appointment by Successor................................................. 43
Section 7.11. Merger, Conversion, Consolidation or Succession to Business............................ 44
Section 7.12. Maintenance of Agencies................................................................ 44
Section 7.13. Money for Certificate Payments to Be Held in Trust..................................... 45
Section 7.14. Registration of Equipment Notes in Trustee's Name...................................... 46
Section 7.15. Representations and Warranties of Trustee.............................................. 46
Section 7.16. Withholding Taxes: Information Reporting............................................... 47
Section 7.17. Trustee's Liens........................................................................ 47
Section 7.18. Preferential Collection of Claims...................................................... 47
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and Addresses of Certificateholders.......... 48
Section 8.02. Preservation of Information, Communications to Certificateholders...................... 48
Section 8.03. Reports by Trustee..................................................................... 48
Section 8.04. Reports by the Company................................................................. 48
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of Certificateholders.......................... 49
Section 9.02. Supplemental Agreements with Consent of Certificateholders............................. 51
Section 9.03. Documents Affecting Immunity or Indemnity.............................................. 52
Section 9.04. Execution of Supplemental Agreements................................................... 52
Section 9.05. Effect of Supplemental Agreements...................................................... 52
Section 9.06. Conformity with Trust Indenture Act.................................................... 53
Section 9.07. Reference in Certificates to Supplemental Agreements................................... 53
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indenture and Other Note Documents....................... 53
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trust............................................................... 54
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders............................................. 55
Section 12.02. Liabilities of Certificateholders...................................................... 56
Section 12.03. Registration of Equipment Notes in Name of Subordination Agent......................... 56
Section 12.04. Notices................................................................................ 56
Section 12.05. Governing Law.......................................................................... 57
Section 12.06. Severability of Provisions............................................................. 57
Section 12.07. Trust Indenture Act Controls........................................................... 57
Section 12.08. Effect of Headings and Table of Contents............................................... 58
Section 12.09. Successors and Assigns................................................................. 58
Section 12.10. Benefits of Agreement.................................................................. 58
Section 12.11. Legal Holidays......................................................................... 58
Section 12.12. Counterparts........................................................................... 58
Section 12.13. Communication by Certificateholders, with Other Certificateholders..................... 58
Section 12.14. Intention of Parties................................................................... 58
</TABLE>
<PAGE> 6
Reconciliation and tie between Atlas Air Pass Through Trust Agreement, dated as
of _________ , 1999 and the Trust Indenture Act of 1939. This reconciliation
does not constitute part of the Pass Through Trust Agreement.
<TABLE>
<CAPTION>
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- ------------------
<S> <C>
310(a)(1) 7.07
(a)(2) 7.07
312(a) 3.05; 8.01; 8.02
313(a) 7.07
314(a) 8.04(a)-(c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.13; 11.01
(d)(2) 7.13; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.01(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(d)
317(a)(1) 6.03
(b) 7.13
318(a) 12.05
</TABLE>
-i-
<PAGE> 7
PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of __________,
1999 the ("Basic Agreement"), between ATLAS AIR, INC., a Delaware corporation
(the "Company"), and WILMINGTON TRUST COMPANY, a Delaware trust company, as
Trustee, is made with respect to the formation from time to time of separate
Atlas Air Pass Through Trusts and the issuance from time to time of separate
series of Pass Through Certificates representing fractional undivided interests
in the Trusts.
W I T N E S S E T H:
WHEREAS, from time to time, the Company and the Trustee may
enter into a Trust Supplement (this and certain other defined terms used herein
are defined in Section 1.01) pursuant to which the Trustee shall declare the
creation of a separate Trust for the benefit of the Holders of the series of
Certificates to be issued in respect of such Trust, and the initial Holders of
the Certificates of such series, as the grantors of such Trust, by their
respective acceptance of the Certificates of such series, shall join in the
creation of such Trust with the Trustee;
WHEREAS, all Certificates to be issued in respect of each
separate Trust will be issued as a separate series pursuant to this Agreement,
will evidence fractional undivided interests in such Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein, subject, however, to the provisions of any Intercreditor
Agreement to which one or more Trusts may be a party;
WHEREAS, from time to time, pursuant to the terms and
conditions of this Agreement with respect to each separate Trust formed
hereunder, the Trustee on behalf of such Trust shall purchase one or more issues
of Equipment Notes having the same interest rate as, and final maturity dates
not later than the final Regular Distribution Date of, the series of
Certificates issued in respect of such Trust and, subject to the terms of any
related Intercreditor Agreement, shall hold such Equipment Notes in trust for
the benefit of the Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the
purchase of Equipment Notes by, the Trustee on behalf of each Trust created from
time to time pursuant to this Agreement, the Company as the "Issuer", as such
term is defined in and solely for purposes of the Securities Act of 1933, as
amended, of the Certificates to be issued in respect of each Trust and as the
"Obligor", as such term is defined in and solely for purposes of the Trust
Indenture Act of 1939, as amended, has duly authorized the execution and
delivery of this Basic Agreement and each Trust Supplement with respect to all
such Certificates and is under-
<PAGE> 8
-2-
taking to perform certain administrative and ministerial duties hereunder and is
also undertaking to pay the fees and expenses of the Trustee; and
WHEREAS, this Basic Agreement, as supplemented from time to
time, is subject to the provisions of the Trust Indenture Act of 1939, as
amended, and shall, to the extent applicable, be governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Basic
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms used herein that are defined in this Article I
have the meanings assigned to them in this Article I, and include the
plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or by the rules
promulgated under t he Trust Indenture Act, have the meanings assigned
to them therein;
(c) all references in this Basic Agreement to designated
"Articles", "Sections", "Subsections" and other subdivisions are to the
designated Articles, Sections, Subsections and other subdivisions of
this Agreement;
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Basic Agreement as a whole and
not to any particular Article, Section, Subsection or other
subdivision;
(e) unless the context otherwise requires, whenever the words
"including" "include" or "includes" are used herein, it shall be deemed
to be followed by the phrase "without limitation"; and
<PAGE> 9
-3-
(f) the term "this Agreement" (as distinguished from "this
Basic Agreement") refers, unless the context otherwise requires, to
this Basic Agreement as supplemented by the Trust Supplement creating a
particular Trust and establishing the series of Certificates issued or
to be issued in respect thereof, with reference to such Trust and such
series of Certificates, as this Basic Agreement as so supplemented may
be further supplemented with respect to such Trust and such series of
Certificates.
"Act" has the meaning, with respect to any Certificateholder,
specified in Section 1.04(a).
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such Person. For the purposes of this
definition, "control", when used with respect to any specified Person, means the
power, directly or indirectly, to direct the management and policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Aircraft" means one or more aircraft, including engines
therefor, owned by or leased to the Company and securing one or more Equipment
Notes.
"Authorized Agent" means, with respect to the Certificates of
any series, any Paying Agent or Registrar for the Certificates of such series.
"Basic Agreement" means this Pass Through Trust Agreement, as
the same may from time to time be supplemented, amended or modified, but does
not include any Trust Supplement.
"Book-Entry Certificates" means, with respect to the
Certificates of any series, a beneficial interest in the Certificates of such
series, ownership and transfers of which shall be made through book entries as
described in Section 3.05.
"Business Day" means, with respect to the Certificates, any
day other than a Saturday, a Sunday or a day on which commercial banks are
required or authorized to close in Denver, Colorado, New York, New York,
Chicago, Illinois or, so long as any Certificate is outstanding, the city and
state in which the Trustee or any related Loan Trustee maintains its Corporate
Trust Office or receives and disburses funds.
"Certificate" means any one of the certificates executed and
authenticated by the Trustee, substantially in the form of Exhibit A hereto.
<PAGE> 10
-4-
"Certificate Account" means, with respect to the Certificates
of any series, the account or accounts created and maintained for such series
pursuant to Section 4.01(a) and the related Trust Supplement.
"Certificate Owner" means, with respect to the Certificates of
any series, for purposes of Section 3.05, the Person who owns a Book-Entry
Certificate of such series.
"Certificateholder" or "Holder" means, with respect to the
Certificates of any series, the Person in whose name a Certificate of such
series is registered in the Register for Certificates of such series.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects, directly or indirectly, book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"Company" means Atlas Air, Inc., a Delaware corporation, or
its successor in interest pursuant to Section 5.02, or (only in the context of
provisions hereof, if any, when such reference is required for purposes of
compliance with the Trust Indenture Act) any other "obligor" (within the meaning
of the Trust Indenture Act) with respect to the Certificates of any series.
"Controlling Party" means the Person entitled to act as such
pursuant to the terms of the Intercreditor Agreement.
"Corporate Trust Office" means, with respect to the Trustee or
any Loan Trustee, the office of such trustee in the city at which at any
particular time its corporate trust business shall be principally administered.
"Cut-Off Date" means, with respect to the Certificates of any
series, the date designated as such in the Trust Supplement establishing such
series.
"Definitive Certificates" has the meaning, with respect to the
Certificates of any series, specified in Section 3.05.
"Direction" has the meaning specified in Section 1.04(a).
"Equipment Notes" means, with respect to the Certificates of
any series, all of the equipment notes issued under the Indentures related to
such series of Certificates.
<PAGE> 11
-5-
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor federal statute.
"Escrow Account" has the meaning, with respect to the
Certificates of any series, specified in Section 2.02(b).
"Escrowed Funds" has the meaning, with respect to any Trust,
specified in Section 2.02(b).
"Event of Default" means, in respect of any Trust, an
Indenture Event of Default under any Indenture pursuant to which Equipment Notes
held by such Trust were issued.
"Fractional Undivided Interest" means the fractional undivided
interest in a Trust that is evidenced by a Certificate relating to such Trust.
"Indenture" means, with respect to any Trust, each of the one
or more separate trust indenture and security agreements or trust indenture and
mortgages or similar documents described in, or on a schedule attached to, the
Trust Supplement and an indenture having substantially the same terms and
conditions which relates to a Substitute Aircraft, as each such indenture may be
amended or supplemented in accordance with its respective terms; and
"Indentures" means all of such agreements.
"Indenture Event of Default" means, with respect to any
Indenture, any Indenture Event of Default (as such term is defined in such
Indenture).
"Initial Regular Distribution Date" means, with respect to the
Certificate of any series, the first Regular Distribution Date on which a
Scheduled Payment is to be made.
"Intercreditor Agreement" means any agreement by and among the
Trustee, as trustee hereunder with respect to one or more Trusts, one or more
Liquidity Providers and a Subordination Agent providing, among other things, for
the distribution of payments made in respect of Equipment Notes held by such
Trusts.
"Issuance Date" means, with respect to the Certificates of any
series, the date of the issuance of such Certificates.
<PAGE> 12
-6-
"Lease" means any lease between an Owner Trustee, as the
lessor, and the Company, as the lessee, referred to in the related Indenture, as
such lease may be amended, supplemented or otherwise modified in accordance with
its terms; and "Leases" means all such Leases.
"Letter of Representations" means, with respect to the
Certificates of any series, an agreement among the Company, the Trustee of any
series and the initial Clearing Agency.
"Liquidity Facility" means, with respect to the Certificates
of any series, any revolving credit agreement, letter of credit or similar
facility relating to the Certificates of such series between a bank or other
financial institution and a Subordination Agent, as amended, replaced,
supplemented or otherwise modified from time to time in accordance with its
terms and the terms of any Intercreditor Agreement.
"Liquidity Provider" means, with respect to the Certificates
of any series, a bank or other financial institution that agrees to provide a
Liquidity Facility for the benefit of the holders of Certificates of such
series.
"Loan Trustee" means, with respect to any Equipment Note or
the Indenture applicable thereto, the bank or trust company designated as loan
or indenture trustee under such Indenture, and any successor to such Loan
Trustee as such trustee; and "Loan Trustees" means all of the Loan Trustees
under the Indentures.
"Note Documents" means, with respect to the Certificates of
any series, the Equipment Notes with respect to such Certificates and, with
respect to such Equipment Notes, the related Indenture, Note Purchase Agreement
and, if the related Aircraft is leased to the Company, the related Lease and the
related Owner Trustee's Purchase Agreement.
"Note Purchase Agreement" means, with respect to the
Certificates of any series, any note purchase, refunding, participation or
similar agreement providing for, among other things, the purchase of Equipment
Notes by the Trustee on behalf of the relevant Trust; and "Note Purchase
Agreements" means all such agreements.
"Officer's Certificate" means a certificate signed, (a) in the
case of the Company, by the Chairman or Vice Chairman of the Board of Directors,
the President, any Vice President or the Treasurer of the Company, signing
alone, or (b) in the case of the Trustee or an Owner Trustee or a Loan Trustee,
a Responsible Officer of the Trustee or such Owner Trustee or such Loan Trustee,
as the case may be.
"Opinion of Counsel" means a written opinion of legal counsel
who (a) in the case of counsel for the Company may be (i) a senior attorney of
the Company one of whose
<PAGE> 13
-7-
principal duties is furnishing advice as to legal matters, (ii) Cahill Gordon &
Reindel or (iii) such other counsel designated by the Company and reasonably
acceptable to the Trustee and (b) in the case of any Owner Trustee or any Loan
Trustee, may be such counsel as may be designated by any of them whether or not
such counsel is an employee of any of them, and who shall be reasonably
acceptable to the Trustee.
"Other Agreements" has the meaning specified in Section
6.01(b).
"Outstanding" when used with respect to Certificates of any
series, means, as of the date of determination, all Certificates of such series
therefore authenticated and delivered under this Agreement, except:
(i) Certificates of such series theretofore canceled by the
Registrar or delivered to the Trustee or the Registrar for
cancellation;
(ii) All of the Certificates of such series if money in the
full amount required to make the final distribution with respect to
such series pursuant to Section 11.01 hereof has been theretofore
deposited with the Trustee in trust for the Holders of the Certificates
as provided in Section 4.01 pending distribution of such money to such
Certificateholders pursuant to payment of such final distribution
payment; and
(iii) Certificates of such series in exchange for or in lieu of
which other Certificates of such series have been authenticated and
delivered pursuant to this Agreement.
"Owner Participant" means, with respect to any Equipment Note,
the "Owner Participant", if any, as referred to in the Indenture pursuant to
which such Equipment Note is issued and any permitted successor or assign of
such Owner Participant; and "Owner Participants" at any time of determination
means all of the Owner Participants thus referred to in the Indentures.
"Owner Trustee" means, with respect to any Equipment Note, the
"Owner Trustee", if any, as referred to in the Indenture pursuant to which such
Equipment Note is issued, not in its individual capacity but solely as trustee;
and "Owner Trustees" means all of the Owner Trustees party to any of the related
Indentures.
"Owner Trustee's Purchase Agreement" has the meaning, with
respect to the Certificates of any series if the related Aircraft is leased to
the Company, specified therefor in the related Lease.
"Paying Agent" means, with respect to the Certificates of any
series, the paying agent maintained and appointed for the Certificates pursuant
to Section 7.12.
<PAGE> 14
-8-
"Permitted Investments" means obligations of the United States
of America or agencies or instrumentalities thereof for the payment of which the
full faith and credit of the United States of America is pledged, maturing in
not more than 60 days after the date of acquisition thereof or such lesser time
as is required for the distribution of any Special Payments on a Special
Distribution Date.
"Person" means any person, including any individual,
corporation, limited liability company, partnership, joint venture, association,
joint-stock company, trust, trustee, unincorporated organization, or government
or any agency or political subdivision thereof.
"Pool Balance" means, with respect to the Certificates of any
series as of any date, (i) the original aggregate face amount of the
Certificates of any series less (ii) the aggregate amount of all payments made
in respect of such Certificates other than payments made in respect of interest
or premium thereon or reimbursement of any costs or expenses incurred in
connection therewith. The Pool Balance as of any Distribution Date shall be
computed after giving effect to the payment of principal, if any, on the
Equipment Notes or other Trust Property held in the Trust and the distribution
thereof to be made on such Distribution Date.
"Pool Factor" means, with respect to any series of
Certificates as of any date, the quotient (rounded to the seventh decimal place)
computed by dividing (i) the Pool Balance of such series as at such date by (ii)
the original aggregate face amount of the Certificates of such series. The Pool
Factor as of any 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 the Trust and the distribution thereof to be made on such Distribution
Date.
"Postponed Notes" means, with respect to any Trust or the
related series of Certificates, the Equipment Notes to be held in such Trust as
to which a Postponement Notice shall have been delivered pursuant to Section
2.02(b).
<PAGE> 15
-9-
"Postponement Notice" means, with respect to any Trust or the
related series of Certificates, an Officer's Certificate of the Company signed
by an officer of the Company (1) requesting that the Trustee temporarily
postpone purchase of the related Equipment Notes to a date later than the
Issuance Date of such series of Certificates, (2) identifying the amount of the
purchase price of each such Equipment Note and the aggregate purchase price for
all such Equipment Notes, (3) setting forth the reasons for such postponement
and (4) with respect to each such Equipment Note, either (a) setting or
resetting a new Transfer Date (which shall be on or prior to the applicable
Cut-off Date) for payment by the Trustee of such purchase price and issuance of
the related Equipment Note (subject to subsequent change from time to time in
accordance with the relevant Note Purchase Agreement), or (b) indicating that
such new Transfer Date (which shall be on or prior to the applicable Cut-off
Date) will be set by subsequent written notice not less than one Business Day
prior to such new Transfer Date (subject to subsequent change from time to time
in accordance with the relevant Note Purchase Agreement).
"Potential Purchaser" has the meaning, with respect to any
Certificateholder, specified in Section 6.01(b).
"PTC Event of Default" means, with respect to the Certificates
of any series, any failure to pay within 10 Business Days of the due date
thereof: (i) the outstanding Pool Balance of such series of Certificates on the
date specified in any Trust Supplement for such payment or (ii) interest due on
the Certificates of such series on any Distribution Date (unless the related
Subordination Agent shall have made an Interest Drawing or Drawings (as defined
in the related Intercreditor Agreement), or a withdrawal or withdrawals pursuant
to a cash collateral account under such Intercreditor Agreement, with respect
thereto in an aggregate amount sufficient to pay such interest and shall have
distributed such amount to the Trustee).
"Purchasing Certificateholder" has the meaning, with respect
to any Certificateholder, specified in Section 6.01(b).
"Record Date" means, with respect to any Trust or the related
series of Certificates, (i) for Scheduled Payments to be distributed on any
Regular Distribution Date, other than the final distribution with respect to
such series, the 15th day (whether or not a Business Day) preceding such Regular
Distribution Date, and (ii) for Special Payments to be distributed on any
Special Distribution Date, other than the final distribution with respect to
such series, the 15th day (whether or not a Business Day) preceding such Special
Distribution Date.
"Register" and "Registrar" means, each with respect to the
Certificates of any series, the register maintained and the registrar appointed
pursuant to Sections 3.04 and 7.12.
"Regular Distribution Date" means, with respect to
distributions of Scheduled Payments in respect of any series of Certificates,
each date designated as such in this Agree-
<PAGE> 16
-10-
ment, until payment of all the Scheduled Payments to be made under the Equipment
Notes held in the Trust have been made.
"Request" means a request by the Company setting forth the
subject matter of the request accompanied by an Officer's Certificate and an
Opinion of Counsel as provided in Section 1.02 of this Basic Agreement.
"Responsible Officer" means, with respect to any Trustee, any
Loan Trustee and any Owner Trustee, any officer in the Corporate Trust
Department of the Trustee, Loan Trustee or Owner Trustee or any other officer
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with a particular
subject.
"Responsible Party" means, with respect to the Certificates of
any series, the person designated as such in the related Trust Supplement.
"Scheduled Payment" means, with respect to any Equipment Note,
(i) any payment of principal or interest on such Equipment Note (other than any
such payment which is not in fact received by the Trustee or any Subordination
Agent within five days of the date on which such payment is scheduled to be
made) or (ii) any payment of interest on the Certificates with funds drawn under
the Liquidity Facility for such series, which payment represents the installment
of principal on such Equipment Note at the stated maturity of such installment,
the payment of regularly scheduled interest accrued on the unpaid principal
amount of such Equipment Note, or both; provided, however, that any payment of
principal, premium, if any, or interest resulting from the redemption or
purchase of any Equipment Note shall not constitute a Scheduled Payment.
"SEC" means the Securities and Exchange Commission, as from
time to time constituted or created under the Securities Exchange Act of 1934,
as amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Selling Certificateholder" has the meaning, with respect to
any Certificateholder, specified in Section 6.01(b).
"Special Distribution Date" means, with respect to the
Certificates of any series, each date on which a Special Payment is to be
distributed as specified in this Agreement.
"Special Payment" means (i) any payment (other than a
Scheduled Payment) in respect of, or any proceeds of, any Equipment Note or
Trust Indenture Estate (as defined in
<PAGE> 17
-11-
each Indenture), (ii) the amounts required to be distributed pursuant to the
last paragraph of Section 2.02(b) or (iii) the amounts required to be
distributed pursuant to the penultimate paragraph of Section 2.02(b).
"Special Payments Account" means, with respect to the
Certificates of any series, the account or accounts created and maintained for
such series pursuant to Section 4.01(b) and the related Trust Supplement.
"Specified Investments" means, with respect to any Trust,
unless otherwise specified in the related Trust Supplement, (i) obligations of,
or guaranteed by, the United States Government or agencies thereof, (ii) open
market commercial paper of any corporation incorporated under the laws of the
United States of America or any state thereof rated at least P-2 or its
equivalent by Moody's Investors Service, Inc. or at least A-2 or its equivalent
by Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies,
Inc., (iii) certificates of deposit issued by commercial banks organized under
the laws of the United States or of any political subdivision thereof having a
combined capital and surplus in excess of $100,000,000 which banks or their
holding companies have a rating of A or its equivalent by Moody's Investors
Service, Inc. or Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.; provided, however, that the aggregate amount at any
one time so invested in certificates of deposit issued by any one bank shall not
exceed 5 % of such bank's capital and surplus, (iv) U.S. dollar-denominated
offshore certificates of deposit issued by, or offshore time deposits with, any
commercial bank described in clause (iii) above or any subsidiary thereof and
(v) repurchase agreements with any financial institution having combined capital
and surplus of at least $100,000,000 with any of the obligations described in
clauses (i) through (iv) above as collateral; provided, further, that if all of
the above investments are unavailable, the entire amounts to be invested may be
used to purchase federal funds from an entity described in clause (iii) above.
"Subordination Agent" has the meaning specified therefor in
the Intercreditor Agreement.
"Substitute Aircraft" means, with respect to any Trust, any
Aircraft of a type specified in this Agreement and, at the election of the
Company, substituted prior to the applicable Cut-off Date, if any, pursuant to
the terms of this Agreement.
"Transfer Date" has the meaning assigned to that term or any
of the terms "Delivery Date", "Funding Date" or "Closing Date" in a Note
Purchase Agreement, and in any event refers to any such date as it may be
changed from time to time in accordance with the terms of such Note Purchase
Agreement.
"Triggering Event" has the meaning specified therefor in the
Intercreditor Agreement.
<PAGE> 18
-12-
"Trust" means, with respect to the Certificates of any series,
the trust under this Agreement.
"Trustee" means Wilmington Trust Company, or its successor in
interest, and any successor or other trustee appointed as provided herein.
"Trust Indenture Act", except as otherwise provided in Section
9.06, means, with respect to any particular Trust, the United States Trust
Indenture Act of 1939, as in force at the date as of which the related Trust
Supplement was executed.
"Trust Property" means, with respect to any Trust, (i) subject
to any related Intercreditor Agreement, the Equipment Notes held as the property
of the Trust, all monies at any time paid thereon and all monies due and to
become due thereunder, (ii) funds from time to time deposited in the related
Escrow Account, the related Certificate Account and the related Special Payments
Account and, subject to the related Intercreditor Agreement, any proceeds from
the sale by the Trustee pursuant to Article VI hereof of any such Equipment
Note, (iii) all rights of the Trust and the Trustee, on behalf of the Trust,
under the Intercreditor Agreement, including, without limitation, all monies
receivable in respect of such rights and (iv) all monies receivable under any
Liquidity Facility for such Trust.
"Trust Supplement" means an agreement supplemental hereto
pursuant to which (i) a separate Trust is created for the benefit of the Holders
of the Certificates of a series, (ii) the issuance of the Certificates of such
series representing fractional undivided interests in such Trust is authorized
and (iii) the terms of the Certificates of such series are established.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request (except with respect to matters set forth in Article II),
by the Company, any Owner Trustee or any Loan Trustee to the Trustee to take any
action under any provision of this Basic Agreement, or, in respect of the
Certificates of any series, this Agreement, the Company, such Owner Trustee or
such Loan Trustee, as the case may be, shall furnish to the Trustee (i) an
Officer's Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Basic Agreement or this
Agreement relating to the proposed action have been complied with and (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Basic Agreement or this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Basic Agreement or, in respect of the
Certificate of any series,
<PAGE> 19
-13-
this Agreement (other than a certificate provided pursuant to Section 8.04(d))
or any Trust Supplement shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions in
this Basic Agreement or this Agreement relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual,
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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters and any such Person may certify or give an opinion
as to such matters in one or several documents.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Basic Agreement or this Agreement, they may, but
need not, be consolidated and form one instrument.
Section 1.04. Directions of Certificateholders. (a) Any
direction, consent, request, demand, authorization, notice, waiver or other
action provided by this Agreement in respect of the Certificates of any series
to be given or taken by Certificateholders (a "Direction") may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Certificateholders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, when it is hereby expressly required pursuant to this Agreement, to
the Company or any Loan Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Certificateholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such
<PAGE> 20
-14-
agent or proxy shall be sufficient for any purpose of this Trust Agreement and
conclusive in favor of the Trustee, the Company and the related Loan Trustee, if
made in the manner provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer, and where such execution
is by an officer of a corporation or association or a member of a partnership,
on behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates of any series
Outstanding have given any Direction under this Agreement, Certificates owned by
the Company or any Affiliate thereof shall be disregarded and deemed not to be
Outstanding for purposes of any such determination. In determining whether the
Trustee shall be protected in relying upon any such Direction, only Certificates
which the Trustee knows to be so owned shall be so disregarded. Notwithstanding
the foregoing, (i) if any such Person owns 100% of the Certificates of any
series Outstanding, such Certificates shall not be so disregarded, and (ii) if
any amount of Certificates of any series so owned by any such Person have been
pledged in good faith, such Certificates shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Certificates and that the pledgee is not the Company or any
Affiliate thereof.
(d) The Company may, at its option, by delivery of an
Officer's Certificate to the Trustee, set a record date to determine the
Certificateholders in respect of the Certificates of any series, entitled to
give any Direction. Notwithstanding Section 316(c) of the Trust Indenture Act,
such record date shall be the record date specified in such Officer's
Certificate, which shall be a date not more than 30 days prior to the first
solicitation of Certificateholders of the applicable series in connection
therewith. If such a record date is fixed, such Direction may be given before or
after such record date, but only the Certificateholders of record of the
applicable series at the close of business on such record date shall be deemed
to be Certificateholders for the purposes of determining whether
Certificateholders of the requisite proportion of Outstanding Certificates of
such series have authorized or agreed or consented to such Direction, and for
that purpose the Outstanding Certificates shall be computed as of such record
date; provided, however, that no such Direction by the Certificateholders on
such rec-
<PAGE> 21
-15-
ord date shall be deemed effective unless it shall become effective pursuant to
the provisions of this Agreement not later than one year after such record date.
(e) Any Direction by the Holder of any Certificate shall bind
the Holder of every Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such Direction is made
upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c),
Certificates owned by or pledged to any Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Certificates of such
series.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF THE TRUST PROPERTY
Section 2.01. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Certificates which may be authenticated and
delivered under this Basic Agreement is unlimited. The Certificates may be
issued from time to time in one or more series and shall be designated generally
as the "Pass Through Certificates", with such further designations added or
incorporated in such title for the Certificates of each series as specified in
the related Trust Supplement. Each Certificate shall bear upon its face the
designation so selected for the series to which it belongs. All Certificates of
the same series shall be substantially identical except that the Certificates of
a series may differ as to denomination and as may otherwise be provided in the
Trust Supplement establishing the Certificates of such series. Each series of
Certificates issued pursuant to this Agreement will evidence fractional
undivided interests in the related Trust and, except as may be contained in any
Intercreditor Agreement, will have no rights, benefits or interests in respect
of any other Trust or the Trust Property held therein. All Certificates of the
same series shall be in all respects equally and ratably entitled to the
benefits of this Agreement without preference, priority or distinction on
account of the actual time or times of authentication and delivery, all in
accordance with the terms and provisions of this Agreement.
(b) The following matters shall be established with respect to
the Certificates of each series issued hereunder by a Trust Supplement executed
and delivered by and among the Company and the Trustee:
(1) the formation of the Trust as to which the Certificates
of such series represent fractional undivided interests and its
designation (which designation shall
<PAGE> 22
-16-
distinguish such Trust from each other Trust created under this Basic
Agreement and a Trust Supplement);
(2) the specific title of the Certificates of such series
(which title shall distinguish the Certificates of such series from
each other series of Certificates created under this Basic Agreement
and a Trust Supplement);
(3) any limit upon the aggregate principal amount of the
Certificates of such series which may be authenticated and delivered
(which limit shall not pertain to Certificates authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Certificates of the series pursuant to Sections 3.03,
3.04 and 3.06);
(4) the Cut-off Date with respect to the Certificates of such
series;
(5) the Regular Distribution Dates applicable to the
Certificates of such series;
(6) the Special Distribution Dates applicable to the
Certificates of such series;
(7) if other than as provided in Section 7.12(b), the
Registrar or the Paying Agent for the Certificates of such series,
including any Co-Registrar or additional Paying Agent;
(8) if other than as provided in Section 3.02, the
denominations in which the Certificates of such series shall be
issuable;
(9) if other than United States dollars, the currency or
currencies (including currency units) in which the Certificates of such
series shall be denominated;
(10) the specific form of the Certificates of such series
(including the interest rate applicable thereto) and whether or not
Certificates of such series are to be issued as Book-Entry Certificates
and, if such Certificates are to be Book-Entry Certificates, the form
of Letter of Representations, if any (or, in the case of any
Certificates denominated in a currency other than United States dollars
and if other than as provided in Section 3.05, whether and the
circumstances under which beneficial owners of interests in such
Certificates in permanent global form may exchange such interests for
Certificates of such series and of like tenor of any authorized form
and denomination);
<PAGE> 23
-17-
(11) a description of the Equipment Notes to be acquired and
held in the related Trust and of the related Aircraft and Note
Documents;
(12) provisions with respect to the terms for which the
definitions set forth in Article I hereof or the terms of Section 11.01
hereof permit or require further specification in the related Trust
Supplement;
(13) any restrictions (including legends) in respect of ERISA;
(14) whether such series will be subject to an Intercreditor
Agreement and, if so, the specific designation of such Intercreditor
Agreement;
(15) whether such series will have the benefit of a Liquidity
Facility and, if so, any terms appropriate thereto;
(16) whether there will be a deposit agreement or other
arrangement prior to the delivery of one or more Aircraft and, if so,
any terms appropriate thereto; and
(17) any other terms of the Certificates of such series (which
terms shall not be inconsistent with the provisions of the Trust
Indenture Act), including any terms of the Certificates of such series
which may be required or advisable under United States laws or
regulations or advisable in connection with the marketing of
Certificates of the series.
(c) At any time and from time to time after the execution and
delivery of this Basic Agreement and a Trust Supplement forming a Trust and
establishing the terms of Certificates of a series, Certificates of such series
shall be executed, authenticated and delivered by the Trustee to the Person or
Persons specified by the Company upon request of the Company and upon
satisfaction or waiver of any conditions precedent set forth in such Trust
Supplement or in any other document to which a Trustee is a party relating to
the issuance of the Certificates of such series.
Section 2.02. Acquisition of Equipment Notes. (a) Unless
otherwise specified in the related Trust Supplement, on or prior to the Issuance
Date of the Certificates of a series, the Trustee shall execute and deliver the
related Note Purchase Agreements in the form delivered to the Trustee by the
Company and shall, subject to the respective terms thereof, perform its
obligations under such Note Purchase Agreements. The Trustee shall issue and
sell such Certificates, in authorized denominations and in such Fractional
Undivided Interests, so as to result in the receipt of consideration in an
amount equal to the aggregate purchase price of the Equipment Notes contemplated
to be purchased by the Trustee under the related Note Purchase Agreements and,
concurrently therewith, the Trustee shall purchase, pursuant to the terms and
conditions of the Note Purchase Agreements, such Equipment Notes at a purchase
<PAGE> 24
-18-
price equal to the amount of such consideration so received. Except as provided
in Sections 3.03, 3.04 and 3.06 hereof, the Trustee shall not execute,
authenticate or deliver Certificates of such series in excess of the aggregate
amount specified in this paragraph. The provisions of this Subsection (a) are
subject to the provisions of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a
series of Certificates the Company shall deliver to the Trustee a Postponement
Notice relating to one or more Postponed Notes, the Trustee shall postpone the
purchase of such Postponed Notes and shall deposit into an escrow account (as to
such Trust, the "Escrow Account") to be maintained as part of the related Trust
an amount equal to the purchase price of such Postponed Notes (the "Escrowed
Funds"). The portion of the Escrowed Funds so deposited with respect to any
particular Postponed Notes shall be invested by the Trustee at the written
direction and risk of, and for the benefit of, the Responsible Party in
Specified Investments (i) maturing no later than any scheduled Transfer Date
relating to such Postponed Notes or (ii) if no such Transfer Date has been
scheduled, maturing on the next Business Day, or (iii) if the Company has given
notice to the Trustee that such Postponed Notes will not be issued, maturing on
the next applicable Special Distribution Date, if such investments are
reasonably available for purchase. The Trustee shall make withdrawals from the
Escrow Account only as provided in this Agreement. Upon request of the Company
on one or more occasions and the satisfaction or waiver of the closing
conditions specified in the applicable Note Purchase Agreements on or prior to
the related Cut-off Date, the Trustee shall purchase the applicable Postponed
Notes with the Escrowed Funds withdrawn from the Escrow Account. The purchase
price shall equal the principal amount of such Postponed Notes.
The Trustee shall hold all Specified Investments until the
maturity thereof and will not sell or otherwise transfer Specified Investments.
If Specified Investments held in an Escrow Account mature prior to any
applicable Transfer Date, any proceeds received on the maturity of such
Specified Investments (other than any earnings thereon) shall be reinvested by
the Trustee at the written direction and risk of, and for the benefit of, the
Responsible Party in Specified Investments maturing as provided in the preceding
paragraph.
Any earnings on Specified Investments received from time to
time by the Trustee shall be promptly distributed to the Responsible Party. The
Responsible Party shall pay to the Trustee for deposit to the relevant Escrow
Account an amount equal to any losses on such Specified Investments as incurred.
On the Initial Regular Distribution Date in respect of the Certificates of any
series, the Responsible Party will pay (in immediately available funds) to the
Trustee an amount equal to the interest that would have accrued on any Postponed
Notes with respect to such Certificates, if any, purchased after the Issuance
Date if such Postponed Notes had been purchased on the Issuance Date, from the
Issuance Date to, but not including, the date of the purchase of such Postponed
Notes by the Trustee.
<PAGE> 25
-19-
If, in respect of the Certificates of any series, the Company
notifies the Trustee prior to the Cut-off Date that any Postponed Notes will not
be issued on or prior to the Cut-off Date for any reason, on the next Special
Distribution Date for such Certificates occurring not less than 15 days
following the date of such notice, (i) the Responsible Party shall pay to the
Trustee for deposit in the related Special Payments Account, in immediately
available funds, an amount equal to the interest that would have accrued on the
Postponed Notes designated in such notice at a rate equal to the interest rate
applicable to such Certificates from the Issuance Date to, but not including,
such Special Distribution Date and (ii) the Trustee shall transfer an amount
equal to that amount of Escrowed Funds that would have been used to purchase the
Postponed Notes designated in such notice and the amount paid by the Responsible
Party pursuant to the immediately preceding clause (i) to the related Special
Payments Account for distribution as a Special Payment in accordance with the
provisions hereof.
If, on such Cut-off Date, an amount equal to less than all of
the Escrowed Funds (other than Escrowed Funds referred to in the immediately
preceding paragraph) has been used to purchase Postponed Notes, on the next such
Special Distribution Date occurring not less than 15 days following such Cut-off
Date (i) the Responsible Party shall pay to the Trustee for deposit in such
Special Payments Account, in immediately available funds, an amount equal to the
interest that would have accrued on such Postponed Notes contemplated to be
purchased with such unused Escrowed Funds (other than Escrowed Funds referred to
in the immediately preceding paragraph) but not so purchased at a rate equal to
the interest rate applicable to such Certificates from the Issuance Date to, but
not including, such Special Distribution Date and (ii) the Trustee shall
transfer such unused Escrowed Funds and the amount paid by the Responsible Party
pursuant to the immediately preceding clause (i) to such Special Payments
Account for distribution as a Special Payment in accordance with the provisions
hereof.
Section 2.03. Acceptance by Trustee. The Trustee, upon the
execution and delivery of a Trust Supplement creating a Trust and establishing a
series of Certificates, shall acknowledge its acceptance of all right, title and
interest in and to the Trust Property to be acquired pursuant to Section 2.02
hereof and the related Note Purchase Agreements and shall declare that the
Trustee holds and will hold all such right, title and interest for the benefit
of all then present and future Certificateholders of such series, upon the
trusts herein and in such Trust Supplement set forth. By the acceptance of each
Certificate of such series issued to it under this Agreement, each initial
Holder of such series as grantor of such Trust shall thereby join in the
creation and declaration of such Trust.
<PAGE> 26
-20-
Section 2.04. Limitation of Powers. The Trust is constituted
solely for the purpose of making the investment in the Equipment Notes provided
for in the related Trust Supplement, and, except as set forth herein, the
Trustee shall not be authorized or empowered to acquire any other investments or
engage in any other activities and, in particular, the Trustee shall not be
authorized or empowered to do anything that would cause such Trust to fail to
qualify as a "grantor trust" for federal income tax purposes (including, as
subject to this restriction, acquiring any Aircraft (as defined in the
respective Indentures) by bidding such Equipment Notes or otherwise, or taking
any action with respect to any such Aircraft once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of
Certificates. The Certificates of each series shall be issued in fully
registered form without coupons and shall be substantially in the form attached
hereto as Exhibit A, with such omissions, variations and insertions as are
permitted by this Agreement, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which such
Certificates may be listed or to conform to any usage in respect thereof, or as
may, consistently herewith, be determined by the Trustee or the officers
executing such Certificates, as evidenced by the Trustee's or respective
officers' execution of the Certificates.
Except as provided in Section 3.05, the definitive
Certificates of such series shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the
Certificates may be listed, all as determined by the officers executing such
Certificates, as evidenced by their execution of such Certificates.
Except as otherwise provided in the related Trust Supplement,
the Certificates of each series shall be issued in minimum denominations of
$1,000 or integral multiples thereof except that one Certificate of such series
may be issued in a different denomination.
<PAGE> 27
-21-
The Certificates of such series shall be executed on behalf of
the Trustee by manual or facsimile signature of a Responsible Officer of the
Trustee. Certificates of any series bearing the manual or facsimile signature of
an individual who was, at the time when such signature was affixed, authorized
to sign on behalf of the Trustee shall be valid and binding obligations of the
Trustee, notwithstanding that such individual has ceased to be so authorized
prior to the authentication and delivery of such Certificates or did not hold
such office at the date of such Certificates.
Section 3.02. Authentication of Certificates. (a) On the
Issuance Date, the Trustee shall duly execute, authenticate and deliver
Certificates of each series in authorized denominations equalling in the
aggregate the aggregate principal amount of the Equipment Notes that may be
purchased by the Trustee pursuant to the related Note Purchase Agreements, and
evidencing the entire ownership of the related Trust. Thereafter, the Trustee
shall duly execute, authenticate and deliver the Certificates of such series as
herein provided.
(b) No Certificate of any series shall be entitled to any
benefit under this Agreement or be valid for any purpose, unless there appears
on such Certificate a certificate of authentication substantially in the form
set forth in Exhibit A hereto executed by the Trustee by the manual signature of
one of its authorized signatories, and such certificate of authentication upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates of any series shall be dated the date of their authentication.
Section 3.03. Temporary Certificates. Until definitive
Certificates are ready for delivery, the Trustee shall execute, authenticate and
deliver temporary Certificates of each series. Temporary Certificates of each
series shall be substantially in the form of definitive Certificates of each
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the officers executing the temporary
Certificates of each series, as evidenced by their execution of such temporary
Certificates. If temporary Certificates of any series are issued, the Trustee
will cause definitive Certificates of each series to be prepared without
unreasonable delay. After the preparation of definitive Certificates of each
series, the temporary Certificates shall be exchangeable for definitive
Certificates upon surrender of the temporary Certificates at the office or
agency of the Trustee designated for such purpose pursuant to Section 7.12,
without charge to the Certificateholder. Upon surrender for cancellation of any
one or more temporary Certificates, the Trustee shall execute, authenticate and
deliver in exchange therefor a like face amount of definitive Certificates of
like series, in authorized denominations and of a like Fractional Undivided
Interest. Until so exchanged, the temporary Certificates shall be entitled to
the same benefits under this Agreement as definitive Certificates.
<PAGE> 28
-22-
Section 3.04. Transfer and Exchange. The Trustee shall cause
to be kept at the office or agency to be maintained by it in accordance with the
provisions of Section 7.12 of this Agreement a register (the "Register") for
each series of Certificates in which, subject to such reasonable regulations as
it may prescribe, the Trustee shall provide for the registration of the
Certificates of such series and of transfers and exchanges of such Certificates
as herein provided. The Trustee shall initially be the registrar (the
"Registrar") for the purpose of registering such Certificates of each series and
transfers and exchanges of such Certificates as herein provided.
All Certificates issued upon any registration of transfer or
exchange of Certificate of any series shall be valid obligations of the
applicable Trust, evidencing the same interest therein, and entitled to the same
benefits under this Agreement, as the Certificates of such series surrendered
upon such registration of transfer or exchange.
Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of like series, in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of like series, in authorized denominations and
of a like aggregate Fractional Undivided Interest, upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate and deliver the Certificates that the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Registrar duly executed by the Certificateholder thereof or its attorney duly
authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trustee shall
require payment of a sum sufficient to cover any tax or similar governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates. Certificates surrendered for registration of transfer or exchange
shall be canceled and subsequently destroyed by the Trustee.
Section 3.05. Book-Entry and Definitive Certificates.
(a) The Certificates of any series may be issued in the form
of one or more typewritten Certificates representing the Book-Entry Certificates
of such series, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Company. In such case, the
Certificates of such series delivered to The Depository Trust Company shall
initially be registered on the Register in the name of CEDE & Co., the nomi-
<PAGE> 29
-23-
nee of the initial Clearing Agency, and no Certificate Owner will receive a
definitive certificate representing such Certificate Owner's interest in the
Certificates of such series, except as provided above and in Subsection (d)
below. As to the Certificates of any series, unless and until definitive, fully
registered Certificates (the "Definitive Certificates") have been issued
pursuant to Subsection (d) below:
(i) the provisions of this Section 3.05 shall be in full
force and effect;
(ii) the Company, the Paying Agent, the Registrar and the
Trustee may deal with the Clearing Agency Participants for all purposes
(including the making of distributions on the Certificates) as the
authorized representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.05
conflict with any other provisions of this Agreement (other than the
provisions of any Trust Supplement expressly amending this Section 3.05
as permitted by this Basic Agreement), the provisions of this Section
3.05 shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing
Agency Participants; and until Definitive Certificates are issued
pursuant to Subsection (d) below, the Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal, interest and premium, if any,
on the Certificates to such Clearing Agency Participants; and
(v) whenever this Agreement requires or permits actions to
be taken based upon instructions or directions of Certificateholders of
such series holding Certificates of such series evidencing a specified
percentage of the Fractional Undivided Interests in the related Trust,
the Clearing Agency shall be deemed to represent such percentage only
to the extent that it has received instructions to such effect from
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in Certificates of such
series and has delivered such instructions to the Trustee. The Trustee
shall have no obligation to determine whether the Clearing Agency has
in fact received any such instructions.
(b) Whenever notice or other communication to the
Certificateholders of such series is required under this Agreement, unless and
until Definitive Certificates shall have been issued pursuant to Subsection (e)
below, the Trustee shall give all such notices and communications specified
herein to be given to Certificateholders of such series to the Clearing Agency.
<PAGE> 30
-24-
(c) Unless and until Definitive Certificates of a series are
issued pursuant to Subsection (d) below, on the Record Date prior to each
applicable Regular Distribution Date and Special Distribution Date, the Trustee
will request from the Clearing Agency a securities position listing setting
forth the names of all Clearing Agency Participants reflected on the Clearing
Agency's books as holding interests in the Certificates on such Record Date.
(d) If with respect to the Certificates of any series (i) the
Company advises the Trustee in writing that the Clearing Agency is no longer
willing or able to discharge properly its responsibilities and the Trustee or
the Company is unable to locate a qualified successor, (ii) the Company, at its
option, advises the Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default, Certificate Owners of Book-Entry Certificates of such
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the related Trust, by Act of such Certificate Owners
delivered to the Company and the Trustee, advise the Company, the Trustee and
the Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency Participants is
no longer in the best interests of the Certificate Owners of such series, then
the Trustee shall notify all Certificate Owners of such series, through the
Clearing Agency, of the occurrence of any such event and of the availability of
Definitive Certificates. Upon surrender to the Trustee of all the Certificates
of such series held by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency Participants for registration of
Definitive Certificates in the names of Certificate Owners of such series, the
Trustee shall issue and deliver the Definitive Certificates of such series in
accordance with the instructions of the Clearing Agency. Neither the Company,
the Registrar, the Paying Agent nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such registration instructions. Upon the issuance of
Definitive Certificates of such series, the Trustee shall recognize the Person
in whose name the Definitive Certificates are registered in the Register as
Certificateholders hereunder. Neither the Company nor the Trustee shall be
liable if the Trustee or the Company is unable to Locate a qualified successor
Clearing Agency.
(e) Except as otherwise provided in the related Trust
Supplement, the Trustee shall enter into the applicable Letter of
Representations with respect to such series of Certificates and fulfill its
responsibilities thereunder.
(f) The provisions of this Section 3.05 may be made
inapplicable to any series or may be amended with respect to any series in the
related Trust Supplement.
Section 3.06. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Registrar
or the Registrar receives evidence to its satisfaction of the destruction, loss
or theft of any Certificate and (b) there is delivered to the
<PAGE> 31
-25-
Registrar and the Trustee such security, indemnity or bond, as may be required
by them to save each of them harmless, then, in the absence of notice to the
Registrar or the Trustee that such destroyed, lost or stolen Certificate has
been acquired by a bona fide purchaser, and provided that the requirements of
Section 8-405 of the Uniform Commercial Code in effect in any applicable
jurisdiction are met, the Trustee shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate or Certificates of like series, in authorized
denominations and of like Fractional Undivided Interest and bearing a number not
contemporaneously outstanding.
In connection with the issuance of any new Certificate under
this Section 3.06, the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.06
shall constitute conclusive evidence of the appropriate Fractional Undivided
Interest in the related Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
The provisions of this Section 3.06 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.07. Persons Deemed Owners. Prior to due presentment
of a Certificate for registration of transfer, the Trustee, the Registrar and
any Paying Agent may treat the Person in whose name any Certificate is
registered (as of the day of determination) as the owner of such Certificate for
the purpose of receiving distributions pursuant to Article IV and for all other
purposes whatsoever, and none of the Trustee, the Registrar or any Paying Agent
shall be affected by any notice to the contrary.
Section 3.08. Cancellation. All Certificates surrendered for
payment or transfer or exchange shall, if surrendered to the Trustee or any
agent of the Trustee other than the Registrar, be delivered to the Registrar for
cancellation and shall promptly be canceled by it. No Certificates shall be
authenticated in lieu of or in exchange for any Certificates cancelled as
provided in this Section 3.08, except as expressly permitted by this Agreement.
All cancelled Certificates held by the Registrar shall be destroyed and a
certification of their destruction delivered to the Trustee.
Section 3.09. Limitation of Liability for Payments. All
payments and distributions made to Certificateholders of any series in respect
of the Certificates of such series shall be made only from the Trust Property of
the related Trust and only to the extent that the Trustee shall have sufficient
income or proceeds from the Trust Property to make such pay-
<PAGE> 32
-26-
ments in accordance with the terms of Article IV of this Agreement. Each
Certificateholder, by its acceptance of a Certificate, agrees that it will look
solely to the income and proceeds from the Trust Property of the related Trust
for any payment or distribution due to such Certificateholder pursuant to the
terms of this Agreement and that it will not have any recourse to the Company,
the Trustee, the Loan Trustees, the Liquidity Providers, the Owner Trustees or
the Owner Participants, except as otherwise expressly provided herein or in the
Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes
of meeting the requirements of the Trust Indenture Act, and therefore shall not
have any right, obligation or liability hereunder (except as otherwise expressly
provided herein).
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments
Account. (a) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Certificate Account as one or more
non-interest-bearing accounts. The Trustee shall hold such Certificate Account
in trust for the benefit of the Certificateholders of such series, and shall
make or permit withdrawals therefrom only as provided in this Agreement. On each
day when a Scheduled Payment is made to the Trustee (under the Intercreditor
Agreement, if applicable) with respect to the Certificates of such series, the
Trustee, upon receipt thereof, shall immediately deposit the aggregate amount of
such Scheduled Payment in such Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section
4.04. The Trustee shall hold the Special Payments Account in trust for the
benefit of the Certificateholders of such series and shall make or permit
withdrawals therefrom only as provided in this Agreement. On each day when one
or more Special Payments are made to the Trustee (under the Intercreditor
Agreement, if applicable) with respect to the Certificates of such series, the
Trustee, upon receipt thereof, shall immediately deposit the aggregate amount of
such Special Payments in such Special Payments Account.
(c) The Trustee shall present (or, if applicable, cause the
Subordination Agent to present) to the related Loan Trustee of each Equipment
Note such Equipment Note on the date of its stated final maturity or, in the
case of any Equipment Note which is to be redeemed
<PAGE> 33
-27-
in whole pursuant to the related Indenture, on the applicable redemption date
under such Indenture.
Section 4.02. Distributions from Certificate Account and
Special Payments Account. (a) On each Regular Distribution Date with respect to
a series of Certificates or as soon thereafter as the Trustee has confined
receipt of the payment of all or any part of the Scheduled Payments due on the
Equipment Notes held (subject to the Intercreditor Agreement) in the related
Trust on such date, the Trustee shall distribute out of the applicable
Certificate Account the entire amount deposited therein pursuant to Section
4.01(a). There shall be so distributed to each Certificateholder of record of
such series on the Record Date with respect to such Regular Distribution Date
(other than as provided in Section 11.01 concerning the final distribution) by
check mailed to such Certificateholder, at the address appearing in the
Register, such Certificateholder's pro rata share (based on the Fractional
Undivided Interest in the Trust held by such Certificateholder) of the total
amount in the applicable Certificate Account, except that, with respect to
Certificates registered on the Record Date in the name of a Clearing Agency (or
its nominee), such distribution shall be made by wire transfer in immediately
available funds to the account designated by such Clearing Agency (or such
nominee).
(b) On each Special Distribution Date with respect to any
Special Payment with respect to a series of Certificates or as soon thereafter
as the Trustee has confirmed receipt of any Special Payments due on the
Equipment Notes held (subject to the Intercreditor Agreement) in the related
Trust or realized upon the sale of such Equipment Notes, the Trustee shall
distribute out of the applicable Special Payments Account the entire amount of
such applicable Special Payment deposited therein pursuant to Section 4.01(b).
There shall be so distributed to each Certificateholder of record of such series
on the Record Date with respect to such Special Distribution Date (other than as
provided in Section 11.01 concerning the final distribution) by check mailed to
such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the related Trust held by such Certificateholder) of the total amount in the
applicable Special Payments Account on account of such Special Payment, except
that, with respect to Certificates registered on the Record Date in the name of
a Clearing Agency (or its nominee), such distribution shall be made by wire
transfer in immediately available funds to the account designated by such
Clearing Agency (or such nominee).
<PAGE> 34
-28-
(c) The Trustee shall, at the expense of the Company, cause
notice of each Special Payment with respect to a series of Certificates to be
mailed to each Certificateholder at his address as it appears in the Register.
In the event of redemption or purchase of Equipment Notes held in the related
Trust, such notice shall be mailed not less than 15 days prior to the Special
Distribution Date for the Special Payment resulting from such redemption or
purchase, which Special Distribution Date shall be the date of such redemption
or purchase. In the event that the Trustee receives a notice from the Company
that Postponed Notes will not be purchased by the Trustee pursuant to Section
2.02, such notice of Special Payment shall be mailed as soon as practicable
after receipt of such notice from the Company and shall state the Special
Distribution Date for such Special Payment, which shall occur 15 days after the
date of such notice of Special Payment or (if such 15th day is not practicable)
as soon as practicable thereafter. In the event that any Special Payment is to
be made pursuant to the last paragraph of Section 2.02(b) hereof, there shall be
mailed on the Cut-off Date (or, if such mailing on the Cut-off Date is not
practicable, as soon as practicable after the Cut-off Date), notice of such
Special Payment stating the Special Distribution Date for such Special Payment,
which shall occur 15 days after the date of such notice of such Special Payment
(or, if such 15th day is not practicable, as soon as practicable thereafter). In
the case of any other Special Payments, such notice shall be mailed as soon as
practicable after the Trustee has confirmed that it has received funds for such
Special Payment, stating the Special Distribution Date for such Special Payment
which shall occur not less than 15 days after the date of such notice and as
soon as practicable thereafter. Notices mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date
therefor (except as otherwise provided in Section 11.01);
(ii) the amount of the Special Payment (taking into account
any payment to be made by the Company pursuant to Section 2.02(b)) for
each $1,000 face amount Certificate and the amount thereof constituting
principal, premium, if any, and interest;
(iii) the reason for the Special Payment; and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date for the Certificates, the total amount to be
received on such date for each $1,000 face amount Certificate.
If the amount of (i) premium, if any, payable upon the redemption or purchase of
an Equipment Note has not been calculated at the time that the Trustee mails
notice of a Special Payment, it shall be sufficient if the notice sets forth the
other amounts to be distributed and states that any premium received will also
be distributed.
<PAGE> 35
-29-
If any redemption of the Equipment Notes held in any Trust is
cancelled, the Trustee, as soon as possible after learning thereof, shall cause
notice thereof to be mailed to each Certificateholder at its address as it
appears on the Register.
Section 4.03. Statements to Certificateholders. (a) On each
Regular Distribution Date and Special Distribution Date, the Trustee will
include with each distribution of a Scheduled Payment or Special Payment, as the
case may be, to Certificateholders of the related series a statement setting
forth the information provided below. Such statement shall set forth (per $1,000
aggregate principal amount of Certificate as to (i) and (ii) below) the
following information:
(i) the amount of such distribution hereunder allocable to
principal and the amount allocable to premium, if any;
(ii) the amount of such distribution under this Agreement
allocable to interest;
(iii) the Pool Balance and the Pool Factor of the related
Trust.
With respect to the Certificates registered in the name of a
Clearing Agency or its nominee, on the Record Date prior to each Distribution
Date, the Trustee will request from the Clearing Agency a securities position
listing setting forth the names of all Clearing Agency Participants reflected on
the Clearing Agency's books as holding interests in the Certificates on such
Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) above with respect to the
related Trust for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for the
applicable portion of such 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. With respect to Certificates registered in the name of a
Clearing Agency or its nominee, such statement and such other items shall be
prepared on the basis of information supplied to the Trustee by the Clearing
Agency Participants and shall be delivered by the Trustee to such Clearing
Agency Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Certificates in the manner
described in Section 4.03(a).
<PAGE> 36
-30-
Section 4.04. Investment of Special Payment Moneys. Any money
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not distributed on the date received shall, to the extent
practicable, be invested in Permitted Investments by the Trustee pending
distribution of such Special Payment pursuant to Section 4.02. Any investment
made pursuant to this Section 4.04 shall be in such Permitted Investments having
maturities not later than the date that such moneys are required to be used to
make the payment required under Section 4.02 on the applicable Special
Distribution Date and the Trustee shall hold any such Permitted Investments
until maturity. The Trustee shall have no liability with respect to any
investment made pursuant to this Section 4.04, other than by reason of the
willful misconduct or negligence of the Trustee. All income and earnings from
such investments shall be distributed on such Special Distribution Date as part
of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company,
at its own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.02;
provided, however, that the Company shall not be required to preserve any right
or franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 5.02. Consolidation, Merger, Etc. The Company shall
not consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall be (i) organized and validly existing under the laws of
the United States of America or any state thereof or the District of
Columbia, (ii) a "citizen of the United States" as defined in 49 U.S.C.
Section 40102(a)(15), as amended, and (iii) a United States
certificated air carrier, if and so long as such status is a condition
of entitlement to the benefits of Section 1110 of the Bankruptcy Reform
Act of 1978, as amended (11 U.S.C. Section 1110), with respect to the
Leases or the Aircraft owned by the Company;
(b) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
transfer or lease substantially
<PAGE> 37
-31-
all of the assets of the Company as an entirety shall execute and
deliver to the Trustee applicable to the Certificates of each series a
duly authorized, valid, binding and enforceable agreement in form and
substance reasonably satisfactory to the Trustee containing an
assumption by such successor corporation or Person of the due and
punctual performance and observance of each covenant and condition of
the Note Documents and of this Agreement applicable to the Certificates
of each series to be performed or observed by the Company; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate of the Company and an Opinion of Counsel of the
Company reasonably satisfactory to the Trustee, each stating that such
consolidation, merger, conveyance, transfer or lease and the assumption
agreement mentioned in clause (b) above comply with this Section 5.02
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Upon any consolidation or merger, or any conveyance, transfer
or lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement
applicable to the Certificates of each series with the same effect as if such
successor corporation or Person had been named as the Company herein. No such
conveyance, transfer or lease of substantially all of the assets of the Company
as an entirety shall have the effect of releasing any successor corporation or
Person which shall have become such in the manner prescribed in this Section
5.02 from its liability in respect of this Agreement and any Note Document
applicable to the Certificates of such series to which it is a party.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. (a) Exercise of Remedies.
Upon the occurrence and during the continuation of any Indenture Default under
any Indenture, the Trustee may (i) to the extent it is the Controlling Party at
such time (as determined pursuant to the Intercreditor Agreement), direct the
exercise of remedies as provided in the Intercreditor Agreement and (ii) if
there is no related Intercreditor Agreement, direct the exercise of remedies or
take other action as provided in the relevant Indenture to the extent that it
may do so as the holder of the Equipment Notes issued under such Indenture and
held in the related Trust.
<PAGE> 38
-32-
(b) Purchase Rights of Certificateholders: At any time after
the occurrence and during the continuation of a Triggering Event, each
Certificateholder of Certificates of certain series (each, a "Potential
Purchaser" and, collectively, the "Potential Purchasers") will have certain
rights to purchase the Certificates of one or more other series, all as set
forth in the Trust Supplement applicable to the Certificates held by such
Potential Purchaser. The purchase price with respect to the Certificates of any
series shall be equal to the Pool Balance of the Certificates of such series,
together with accrued and unpaid interest thereon to the date of such purchase,
without premium, but including any other amounts then due and payable to the
Certificateholders of such series under this Agreement, any related
Intercreditor Agreement or any other Note Document or on or in respect of the
Certificates of such series; provided, however, that if such purchase occurs
after a Record Date, such purchase price shall be reduced by the amount to be
distributed hereunder on the related Distribution Date (which deducted amounts
shall remain distributable to, and may be retained by, the Certificateholder as
of such Record Date); provided, further, that no such purchase of Certificates
of such series shall be effective unless the purchasing Certificateholder (each,
a "Purchasing Certificateholder" and, collectively, the "Purchasing
Certificateholders") shall certify to the Trustee that contemporaneously with
such purchase, one or more Purchasing Certificateholders are purchasing,
pursuant to the terms of this Agreement and the other Agreements, if any,
relating to the Certificates of a series that are subject to the same
Intercreditor Agreement (such other Agreements, the "Other Agreements"), the
Certificates of each such series that the Trust Supplement applicable to the
Certificates held by the Purchasing Certificateholder specifies may be purchased
by such Purchasing Certificateholder. Each payment of the purchase price of the
Certificates of any series shall be made to an account or accounts designated by
the Trustee and each such purchase shall be subject to the terms of this Section
6.01. By acceptance of its Certificate, each Certificateholder (each, a "Selling
Certificateholder" and, collectively, the "Selling Certificateholders") of a
series that is subject to purchase by Potential Purchasers, all as set forth in
the Trust Supplement applicable to the Certificates held by the Selling
Certificateholders, agrees that, at any time after the occurrence and during the
continuance of a Triggering Event, it will, upon payment of the purchase price
specified herein by one or more Purchasing Certificateholders, forthwith sell,
assign, transfer and convey to such Purchasing Certificateholder (without
recourse, representation or warranty of any kind except for its own acts), all
of the right, title, interest and obligation of such Selling Certificateholder
in this Agreement, any related Intercreditor Agreement, the related Liquidity
Facility, the related Note Documents and all Certificates of such series held by
such Selling Certificateholder (excluding all right, title and interest under
any of the foregoing to the extent such right, title or interest is with respect
to an obligation not then due and payable as respects any action or inaction or
state of affairs occurring prior to such sale) and the Purchasing
Certificateholder shall assume all of such Selling Certificateholder's
obligations under this Agreement, any related Intercreditor Agreement, the
related Liquidity Facility and the related Note Documents. The Certificates of
such series will be deemed to be purchased on the date payment of the purchase
price is made notwithstanding the failure of any Selling Certificateholder to
deliver any
<PAGE> 39
-33-
Certificates of such series and, upon such a purchase, (i) the only rights of
the Selling Certificateholders will be to deliver the Certificates to the
Purchasing Certificateholder and receive the purchase price for such
Certificates of such series and (ii) if the Purchasing Certificateholder shall
so request, such Selling Certificateholder will comply with all of the
provisions of Section 3.04 hereof to enable new Certificates of such series to
be issued to the Purchasing Certificateholder in such denominations as it shall
request. All charges and expenses in connection with the issuance of any such
new Certificates shall be borne by the Purchasing Certificateholder.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any
sale of all or any part of the Equipment Notes held in the Trust made either
under the power of sale given under this Agreement or otherwise for the
enforcement of this Agreement, the following shall be applicable:
(a) Certificateholders and Trustee May Purchase Equipment
Notes. Any Certificateholder, the Trustee in its individual or any
other capacity or any other Person may bid for and purchase any of the
Equipment Notes held in the Trust, and upon compliance with the terms
of sale, may hold, retain, possess and dispose of such Equipment Notes
in their own absolute right without further accountability.
(b) Receipt of Trustee Shall Discharge Purchaser. The receipt
of the Trustee making such sale shall be a sufficient discharge to any
purchaser for his purchase money, and, after paying such purchase money
and receiving such receipt, such purchaser or its personal
representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for any
loss, misapplication or nonapplication thereof.
(c) Application of Moneys Received upon Sale. Any moneys
collected by the Trustee upon any sale made either under the power of
sale given by this Agreement or otherwise for the enforcement of this
Agreement shall be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee;
Trustee May Bring Suit. If there shall be a failure to make payment of the
principal of, premium, if any, or interest on any Equipment Note held in the
related Trust, or if there shall be any failure to pay Rent (as defined in the
relevant Lease) under any Lease when due and payable, then the Trustee, in, its
own name and as trustee of an express trust, as holder of such Equipment Notes,
to the extent permitted by and in accordance with the terms of any related
Intercreditor Agreement and any related Note Documents (subject to rights of the
applicable Owner Trustee or Owner Participant to cure any such failure to pay
principal of, premium, if any, or interest on any Equipment Note or to pay Rent
under any Lease in accordance with the applicable Indenture), shall be entitled
and empowered to institute any suits, actions or proceedings at law, in equity
<PAGE> 40
-34-
or otherwise, for the collection of the sums so due and unpaid on such Equipment
Notes or under such Lease and may prosecute any such claim or proceeding to
judgment or final decree with respect to the whole amount of any such sums so
due and unpaid.
Section 6.04. Control by Certificateholders. Subject to
Section 6.03 and the related Intercreditor Agreement, the Certificateholders
holding Certificates of a series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the related Trust shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee with respect to the Trust or pursuant to the
terms of the Intercreditor Agreement, or exercising any trust or power conferred
on the Trustee under this Agreement or the Intercreditor Agreement, including
any right of the Trustee as Controlling Party under such Intercreditor Agreement
or as holder of the Equipment Notes held in the related Trust; provided,
however, that
(a) such Direction shall not in the opinion of the Trustee be
in conflict with any rule of law or with this Agreement and would not
involve the Trustee in personal liability or expense,
(b) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Certificateholders of
such series not taking part in such Direction, and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to any related
Intercreditor Agreement, the Certificateholders holding Certificates of a series
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust (i) may on behalf of all of the Certificateholders
waive any past Event of Default hereunder and its consequences or (ii) if the
Trustee is the Controlling Party, may direct the Trustee to instruct the
applicable Loan Trustee to waive any past Indenture Event of Default under any
related Indenture and its consequences, and thereby annul any Direction given by
such Certificateholders or the Trustee to such Loan Trustee with respect
thereto, except a default:
(a) in the deposit of any Scheduled Payment or Special Payment
under Section 4.01 or in the distribution of any payment under Section
4.02 on the Certificates of a series, or
(b) in the payment of the principal of (premium, if any) or
interest on the Equipment Notes held in the related Trust, or
<PAGE> 41
-35-
(c) in respect of a covenant or provision hereof which under
Article IX hereof cannot be modified or amended without the consent of
each Certificateholder holding an Outstanding Certificate of a series
affected thereby.
Upon any such waiver, such default shall cease to exist with respect to the
Certificates of such series and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose and any direction given by the
Trustee on behalf of the Certificateholders of such series to the relevant Loan
Trustee shall be annulled with respect thereto; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon. Upon any such waiver, the Trustee shall vote the Equipment
Notes issued under the relevant Indenture to waive the corresponding Indenture
Event of Default.
Section 6.06. Right of Certificateholders to Receive Payments
Not To Be Impaired. Anything in this Agreement to the contrary notwithstanding,
including, without limitation, Section 6.07 hereof, but subject to any related
Intercreditor Agreement, the right of any Certificateholder to receive
distributions of payments required pursuant to Section 4.02 hereof on the
applicable Certificates when due, or to institute suit for the enforcement of
any such payment on or after the applicable Regular Distribution Date or Special
Distribution Date, shall not be impaired or affected without the consent of such
Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except
Under Certain Conditions. A Certificateholder shall not have the right to
institute any suit, action or proceeding at law or in equity or otherwise with
respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(a) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(b) Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than 25%
of the related Trust shall have requested the Trustee in writing to
institute such action, suit or proceeding and shall have offered to the
Trustee indemnity as provided in Section 7.03(e);
(c) the Trustee shall have refused or neglected to institute
any such action, suit or proceeding for 60 days after receipt of such
notice, request and offer of indemnity; and
(d) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by
Certificateholders holding Certificates of such series evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the Trust.
<PAGE> 42
-36-
It is understood and intended that no one or more of the
Certificateholders of any series shall have any right in any manner whatsoever
hereunder or under the related Trust Supplement or under the Certificates of
such series to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property of the Trust, or the lien of any related
Indenture on any property subject thereto, or the rights of the
Certificateholders of such series or the holders of the Equipment Notes, (ii)
obtain or seek to obtain priority over or preference with respect to any other
such Certificateholder of such series or (iii) enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all the Certificateholders of such series subject to the
provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given
hereunder to the Trustee or to any of the Certificateholders of any series shall
not be exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
Section 6.09. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Agreement, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section 6.09 nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default in respect of a Trust, the Trustee
undertakes to perform such duties in respect of the Trust as are specifically
set forth in this Agreement, and no implied covenants or obligations shall be
read into this Agreement against the Trustee.
(b) In case an Event of Default in respect of a Trust has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement in respect of the Trust, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
<PAGE> 43
-37-
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section 7.01; and
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts.
(d) Whether or not herein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 7.01.
Section 7.02. Notice of Defaults. As promptly as practicable
after, and in any event within 90 days after, the occurrence of any default (as
such term is defined below) hereunder known to the Trustee, the Trustee shall
transmit by mail to the Company, any related Owner Trustees, any related Owner
Participants, the related Loan Trustees and the Certificateholders holding
Certificates of the related series in accordance with Section 313(c) of the
Trust Indenture Act, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal, premium, if
any, or interest on any Equipment Note, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith shall determine that the withholding of such notice is in
the interests of the Certificateholders. For the purpose of this Section 7.02 in
respect of any Trust, the term "default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default in respect of
that Trust.
Section 7.03. Certain Rights of Trustee. Subject to the
provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Request;
<PAGE> 44
-38-
(c) whenever in the administration of this Agreement or the
Intercreditor Agreement, the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate of the Company, any related Owner
Trustee or any related Loan Trustee;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement or any
Intercreditor Agreement at the Direction of any of the
Certificateholders pursuant to this Agreement or the Intercreditor
Agreement, unless the Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the cost, expenses and
liabilities which might be incurred by it in compliance with such
Direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under
this Agreement or any Intercreditor Agreement or perform any duties
under this Agreement or any Intercreditor Agreement either directly or
by or through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it under this Agreement or any
Intercreditor Agreement;
(h) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
Direction of the Certificateholders holding Certificates of any series
evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the related Trust relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement or any Intercreditor Agreement; and
(i) the Trustee shall not be required to expend or risk its
own funds in the performance of any of its duties under this Agreement,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk is not reasonably assured to it.
<PAGE> 45
-39-
Section 7.04. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates of each
series, except the certificates of authentication, shall not be taken as the
statements of the Trustee, and the Trustee assumes no responsibility or their
correctness. Subject to Section 7.15, the Trustee makes no representations as to
the validity or sufficiency of this Basic Agreement, any Equipment Notes, any
Intercreditor Agreement, the Certificates of any series, and Trust Supplement or
any Note Documents, except that the Trustee hereby represents and warrants that
this Basic Agreement has been, and each Trust Supplement, each Certificate, the
Note Purchase Agreement, and each Intercreditor Agreement of, or relating to,
each series will be executed and delivered by one of its officers who is duly
authorized to execute and deliver such document on its behalf.
Section 7.05. May Hold Certificates. The Trustee, any Paying
Agent, Registrar or any of their Affiliates or any other agent, in their
respective individual or any other capacity, may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
if applicable, may otherwise deal with the Company, any Owner Trustees or the
Loan Trustees with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the Trustee
or the Paying Agent in trust under this Agreement need not be segregated from
other funds except to the extent required herein or by law and neither the
Trustee nor the Paying Agent shall have any liability for interest upon any such
moneys except as provided for herein.
Section 7.07. Compensation and Reimbursement. The Company
agrees:
(a) to pay, or cause to be paid, to the Trustee from time to
time reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
<PAGE> 46
-40-
(b) except as expressly provided herein or in any Trust
Supplement, to reimburse, or cause to be reimbursed, the Trustee upon
its request for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Basic Agreement, any Trust Supplement or any
Intercreditor Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence, willful misconduct or bad faith or as may be incurred due
to the Trustee's breach of its representations and warranties set forth
in Section 7.15; and
(c) to indemnify, or cause to be indemnified, the Trustee with
respect to the Certificates of any series, pursuant to the particular
sections of the Note Purchase Agreement specified in the related Trust
Supplement.
The Trustee shall be entitled to reimbursement from, and shall
have a lien prior to the Certificates of each series upon, all property and
funds held or collected by the Trustee in its capacity as Trustee with respect
to any series or the related Trust for any tax incurred without negligence, bad
faith or willful misconduct, on its part, arising out of or in connection with
the acceptance or administration of the Trust (other than any tax attributable
to the Trustee's compensation for serving as such), including any costs and
expenses incurred in contesting the imposition of any such tax. The Trustee
shall notify the Company of any claim for any tax for which it may seek
reimbursement. If the Trustee reimburses itself from the Trust Property of such
Trust for any such tax, it will mail a brief report within 30 days setting forth
the amount of such tax and the circumstances thereof to all Certificateholders
of such series as their names and addresses appear in the Register.
Section 7.08. Corporate Trustee Required; Eligibility. Each
Trust shall at all times have a Trustee which shall be eligible to act as a
trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $75,000,000 (or a combined capital and
surplus in excess of $5,000,000 and the obligations of which, whether now in
existence or hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the United States,
any state or territory thereof or of the District of Columbia and having a
combined capital and surplus of at least $75,000,000). If such corporation
publishes reports of conditions at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 7.08 the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions so
published.
<PAGE> 47
-41-
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee of any
Trust, the Trustee shall resign immediately as Trustee of such Trust in the
manner and with the effect specified in Section 7.09.
Section 7.09. Resignation and Removal, Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee of any Trust pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time as Trustee of any or
all Trusts by giving prior written notice thereof to the Company, the Authorized
Agents, the related Owner Trustees and the related Loan Trustees. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Company, the related Owner Trustees and the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of the
Certificateholders of the related series holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in such Trust delivered to the Trustee and to the Company, the related Owner
Trustees and the related Loan Trustees.
(d) If at any time in respect of the Trust:
(i) the Trustee shall fail to comply with Section 310 of the
Trust Indenture Act, if applicable, after written request therefor by
the Company or by any Certificateholder who has been a bona fide
Certificateholder for at least six months; or
(ii) the Trustee shall cease to be eligible under Section 7.08
and shall fail to resign after written request therefor by the Company
or by any such Certificateholder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder of the related series who has been a bona fide
Certificateholder for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee of the Trust.
<PAGE> 48
-42-
(e) If a Responsible Officer of the Trustee shall obtain
actual knowledge of an Avoidable Tax (as defined below) in respect of any Trust
which has been or is likely to be asserted, the Trustee shall promptly notify
the Company and shall, within 30 days of such notification, resign as Trustee of
such Trust hereunder unless within such 30-day period the Trustee shall have
received notice that the Company has agreed to pay such tax. The Company shall
promptly appoint a successor Trustee of such Trust in a jurisdiction where there
are no Avoidable Taxes. As used herein, an "Avoidable Tax" in respect of such
Trust means a state or local tax: (i) upon (w) such Trust, (x) such Trust
Property, (y) Certificateholders of such Trust or (z) the Trustee for which the
Trustee is entitled to seek reimbursement from the Trust Property of such Trust,
and (ii) which would be avoided if the Trustee were located in another state, or
jurisdiction within a state, within the United States of America. A tax shall
not be an Avoidable Tax in respect of any Trust if the Company or any Owner
Trustee shall agree to pay, and shall pay, such tax.
(f) If the Trustee shall resign, be removed or become
incapable of acting as Trustee of any Trust or if a vacancy shall occur in the
office of the Trustee of any Trust for any cause, the Company shall promptly
appoint a successor Trustee of such Trust. If, within one year after such
resignation, removal or incapability, or other occurrence of such vacancy, a
successor Trustee of such Trust shall be appointed by Direction of the
Certificateholders of the related series holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in such Trust delivered to the Company, the related Owner Trustees,
the related Loan Trustee and the retiring Trustee, then the successor Trustee so
appointed shall, with the approval of the Company of such appointment, which
approval shall not be unreasonably withheld, forthwith upon its acceptance of
such appointment, become the successor Trustee and supersede the successor
Trustee appointed as provided above. If no successor Trustee shall have been so
appointed as provided above and accepted appointment in the manner hereinafter
provided, the resigning Trustee or any Certificateholder who has been a bona
fide Certificateholder of the related series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation
and removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Certificateholders of the related series as their names and addresses appear in
the Register. Each notice shall include the name of such successor Trustee and
the address of its Corporate Trust Office.
<PAGE> 49
-43-
Section 7.10. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute and deliver to the Company
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall execute and deliver an instrument
transferring to such successor Trustee all such rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all Trust Property held by such retiring Trustee in respect of such
Trusts hereunder, subject nevertheless to its lien, if any, provided for in
Section 7.07. Upon request of any such successor Trustee, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver any and
all instruments containing such provisions as shall be necessary or desirable to
transfer and confirm to, and for more fully and certainly vesting in, such
successor Trustee all such rights, powers and trusts.
If a successor Trustee is appointed with respect to one or
more (but not all) Trusts, the Company, the predecessor Trustee and each
successor Trustee with respect to any Trust shall execute and deliver a
supplemental agreement hereto which shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Trusts as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Basic Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental agreement shall constitute such Trustees as co-Trustees of the same
Trust and that each such Trustee shall be Trustee of separate Trusts.
No institution shall accept its appointment as a Trustee
hereunder unless at the time of such acceptance such institution shall be
qualified and eligible under this Article VII.
<PAGE> 50
-44-
Section 7.11. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided, however, that such corporation shall be otherwise qualified and
eligible under this Article VII, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Certificates shall have been executed or authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such execution or authentication and
deliver the Certificates so executed or authenticated with the same effect as if
such successor Trustee had itself executed or authenticated such Certificates.
Section 7.12. Maintenance of Agencies. (a) With respect to
each series of Certificates, there shall at all times be maintained an office or
agency in the location set forth in Section 12.04 where Certificates of such
series may be presented or surrendered for registration of transfer or for
exchange, and for payment thereof, and where notices and demands, to or upon the
Trustee in respect of such Certificates or this Agreement may be served;
provided, however, that, if it shall be necessary that the Trustee maintain an
office or agency in another location with respect to the Certificates (e.g., the
Certificates of such series shall be represented by Definitive Certificates and
shall be listed on a national securities exchange), the Trustee will make all
reasonable efforts to establish such an office or agency. Written notice of the
location of each such other office or agency and of any change of location
thereof shall be given by the Trustee to the Company, any Owner Trustees, the
Loan Trustees (in the case of any Owner Trustee or Loan Trustee, at its address
specified in the Note Documents or such other address as may be notified to the
Trustee) and the Certificateholders of such series. In the event that no such
office or agency shall be maintained or no such notice of location or of change
of location shall be given, presentations and demands may be made and notices
may be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates of each series. Each such Authorized
Agent shall be a bank or trust company, shall be a corporation organized and
doing business under the laws of the United States or any state, with a combined
capital and surplus of at least $75,000,000, or a corporation having a combined
capital and surplus in excess of $5,000,000, the obligations of which are
guaranteed by a corporation organized and doing business under the laws of the
United States or any state, with a combined capital and surplus of at least
$75,000,000, and shall be authorized under such laws to exercise corporate trust
powers, subject to supervision by federal or state authorities. The Trustee
shall initially be the Paying Agent and, as provided in Section 3.04, Registrar
hereunder with respect to the Certificates of each series. Each Registrar shall
furnish to the Trustee, at stated intervals of not more than six months, and at
such
<PAGE> 51
-45-
other times as the Trustee may request in writing, a copy of the Register
maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any Authorized
Agent shall be a party, or any corporation succeeding to the corporate trust
business of any Authorized Agent, shall be the successor of such Authorized
Agent, if such successor corporation is otherwise eligible under this Section
7.12, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, the Company, any related Owner
Trustees and the related Loan Trustees. The Company may, and at the request of
the Trustee shall, at any time terminate the agency of any Authorized Agent by
giving written notice of termination to such Authorized Agent and to the
Trustee. Upon the resignation or termination of an Authorized Agent or in case
at any time any such Authorized Agent shall cease to be eligible under this
Section 7.12 (when, in either case, no other Authorized Agent performing the
functions of such Authorized Agent shall have been appointed), the Company shall
promptly appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Trustee, to perform the functions of the Authorized Agent
which has resigned or whose agency has been terminated or who shall have ceased
to be eligible under this Section 7.12. The Company shall give written notice of
any such appointment made by it to the Trustee, any related Owner Trustees and
the related Loan Trustees; and in each case the Trustee shall mail notice of
such appointment to all Certificateholders of the related series as their names
and addresses appear on the Register for such series.
(e) The Company agrees to pay, or cause to be paid, from time
to time to each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses.
Section 7.13. Money for Certificate Payments to Be Held in
Trust. All moneys deposited with any Paying Agent for the purpose of any payment
on Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section 7.13. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Certificateholders with respect to which such
money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon
<PAGE> 52
-46-
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Section 7.14. Registration of Equipment Notes in Trustee's
Name. Subject to the provisions of any Intercreditor Agreement, the Trustee
agrees that all Equipment Notes to be purchased by any Trust and Permitted
Investments, if any, shall be issued in the name of the Trustee as Trustee for
the applicable Trust or its nominee and held by the Trustee in trust for the
benefit of the Certificateholders of such series, or, if not so held, the
Trustee or its nominee shall be reflected as the owner of such Equipment Notes
or Permitted Investments, as the case may be, in the register of the issuer of
such Equipment Notes or Permitted Investments, as the case may be.
Section 7.15. Representations and Warranties of Trustee. The
Trustee hereby represents and warrants that:
(a) the Trustee is a Delaware banking corporation organized
and validly existing in good standing under the laws of the State of
Delaware;
(b) the Trustee has full power, authority and legal right to
execute, deliver and perform this Agreement, any Intercreditor
Agreement and the Note Purchase Agreements and has taken all necessary
action to authorize execution, delivery and performance by it of this
Agreement, any Intercreditor Agreement and the Note Purchase
Agreements.
(c) the execution, delivery and performance by the Trustee of
this Agreement, any Intercreditor Agreement and the Note Purchase
Agreements (i) will not violate any provision of any United States
federal law or the law of the state of the United States where it is
located governing the banking and trust powers of the Trustee or any
order, writ, judgment, or decree of any court, arbitrator or
governmental authority applicable to the Trustee or any of its assets,
(ii) will not violate any provision of the articles of association or
by-laws of the Trustee, and (iii) will not violate any provision of, or
constitute, with or without notice or lapse of time, a default under,
or result in the creation or imposition of any lien on any properties
included in the Trust Property pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which
it is a party, which violation, default or lien could reasonably be
expected to have an adverse effect on the Trustee's performance or
ability to perform its duties hereunder or thereunder or on the
transactions contemplated herein or therein;
(d) the execution, delivery and performance by the Trustee of
this Agreement, any Intercreditor Agreement and the Note Purchase
Agreements will not require the authorization, consent, or approval of,
the giving of notice to, the filing or registration
<PAGE> 53
-47-
with, or the taking of any other action in respect of, any governmental
authority or agency of the United States or the state of the United
States where it is located regulating the banking and corporate trust
activities of the Trustee; and
(e) this Agreement, any Intercreditor Agreement and the Note
Purchase Agreements have been duly executed and delivered by the
Trustee and constitute the legal, valid and binding agreements of the
Trustee, enforceable against it in accordance with their respective
terms; provided, however, that enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and (ii)
general principles of equity.
Section 7.16. Withholding Taxes: Information Reporting. As to
the Certificates of any series, the Trustee, as trustee of the related grantor
trust created by this Agreement, shall exclude and withhold from each
distribution of principal, premium, if any, and interest and other amounts due
under this Agreement or under the Certificates of such series any and all
withholding taxes applicable thereto as required by law. The Trustee agrees to
act as such withholding agent and, in connection therewith, whenever any present
or future taxes or similar charges are required to be withheld with respect to
any amounts payable in respect of the Certificates, to withhold such amounts and
timely pay the same to the appropriate authority in the name of and on behalf of
the Certificateholders of such series, that it will file any necessary
withholding tax returns or statements when due, and that, as promptly as
possible after the payment thereof, it will deliver to each such
Certificateholder of such series, appropriate documentation showing the payment
thereof, together with such additional documentary evidence as such
Certificateholders may reasonably request from time to time. The Trustee agrees
to file any other information reports as it may be required to file under United
States law.
Section 7.17. Trustee's Liens. The Trustee in its individual
capacity agrees that it will, in respect of each Trust created by this
Agreement, at its own cost and expense promptly take any action as may be
necessary to duly discharge and satisfy in full any mortgage, pledge, lien,
charge, encumbrance, security interest or claim ("Trustee's Liens") on or with
respect to the Trust Property of such Trust which is attributable to the Trustee
either (i) in its individual capacity and which is unrelated to the transactions
contemplated by this Agreement or the related Note Documents or (ii) as Trustee
hereunder or in its individual capacity and which arises out of acts or
omissions which are not contemplated by this Agreement.
Section 7.18. Preferential Collection of Claims. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. If
the Trustee shall resign or be removed as Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
<PAGE> 54
-48-
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders. The Company will furnish to the Trustee within
15 days after each Record Date with respect to a Scheduled Payment, and at such
other times as the Trustee may request in writing within 30 days after receipt
by the Company of any such request, a list, in such form as the Trustee may
reasonably require, of all information in the possession or control of the
Company as to the names and addresses of the Certificateholders of each series,
in each case as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the sole Registrar
for such series, no such list need be furnished; and provided further, however,
that no such list need be furnished for so long as a copy of the Register is
being furnished to the Trustee pursuant to Section 7.12.
Section 8.02. Preservation of Information, Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders of each
series contained in the most recent list furnished to the Trustee as provided in
Section 7.12 or Section 8.01, as the case may be, and the names and addresses of
Certificateholders of each series received by the Trustee in its capacity as
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.12 or Section 8.01, as the case may be, upon receipt of a
new list so furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first full year following the issuance of any
series of Certificates, the Trustee shall transmit to the Certificateholders of
such series, as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15, if required by Section 313(a) of the Trust
Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
<PAGE> 55
-49-
(a) file with the Trustee, within 30 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 copies of such
portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Company is not required to
file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the SEC, in accordance with
rules and regulations prescribed by the SEC, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed by the SEC, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants of the Company provided for
in this Agreement, as may be required by such rules and regulations,
including, in the case of annual reports, if required by such rules and
regulations, certificates or opinions of independent public
accountants, conforming to the requirements of Section 1.02;
(c) transmit to all Certificateholders, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act such
summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this
Section 8.04 as may be required by rules and regulations prescribed by
the SEC; and
(d) furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his knowledge
of the Company's compliance with all conditions and covenants under
this Agreement (it being understood that for purposes of this paragraph
(d), such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the Company
may (but will not be required
<PAGE> 56
-50-
to), and the Trustee (subject to Section 9.03) shall, at the Company's request,
at any time and from time to time, enter into one or more agreements
supplemental hereto or, if applicable, to an Intercreditor Agreement or a
Liquidity Facility, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to provide for the formation of a Trust, the issuance of a
series of Certificates and other matters contemplated by Section 2.01;
or
(b) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein contained or of the Company's obligations under any
Intercreditor Agreement or any Liquidity Facility; or
(c) to add to the covenants of the Company for the benefit of
the Certificateholders of any series, or to surrender any right or
power conferred upon the Company in this Agreement, any Intercreditor
Agreement or any Liquidity Facility; or
(d) to correct or supplement any provision in this Agreement,
any Intercreditor Agreement or any Liquidity Facility which may be
defective or inconsistent with any other provision herein or therein or
to cure any ambiguity or to modify any other provision with respect to
matters or questions arising under this Agreement, any Intercreditor
Agreement or any Liquidity Facility, provided, however, that any such
action shall not materially adversely affect the interests of the
Certificateholders of any series; to correct any mistake in this
Agreement, any Intercreditor Agreement or any Liquidity Facility; or,
as provided in any Intercreditor Agreement, to give effect to or
provide for a Replacement Liquidity Facility (as defined in the
Intercreditor Agreement); or
(e) to comply with any requirement of the SEC, any applicable
law, rules or regulations of any exchange or quotation system on which
the Certificates of any series are listed or of any regulatory body; or
(f) to modify, eliminate or add to the provisions of this
Agreement, any Intercreditor Agreement or any Liquidity Facility to
such extent as shall be necessary to continue the qualification of this
Agreement, any Intercreditor Agreement or any Liquidity Facility
(including any supplemental agreement) under the Trust Indenture Act or
under any similar Federal statute hereafter enacted, and to add to this
Agreement, any Intercreditor Agreement or any Liquidity Facility such
other provisions as may be expressly permitted by the Trust Indenture
Act, excluding, however, the provisions referred to in Section
316(a)(2) of the Trust Indenture Act as in effect at the date as of
which this Basic Agreement was executed or any corresponding provision
in any similar Federal statute hereafter enacted; or
<PAGE> 57
-51-
(g) to evidence and provide for the acceptance of appointment
under this Agreement, any Intercreditor Agreement or any Liquidity
Facility by a successor Trustee with respect to one or more Trusts and
to add to or change any of the provisions of this Agreement, any
Intercreditor Agreement or any Liquidity Facility as shall be necessary
to provide for or facilitate the administration of the Trust, pursuant
to the requirements of Section 7.10; or
(h) to provide the information required under Section 7.12 and
Section 12.04 as to the Trustee; or
(i) to make any other amendments or modifications hereto,
provided, however, that such amendments or modifications shall apply to
Certificates of any series to be thereafter issued;
provided, however, that no such supplemental agreement shall adversely affect
the status of any Trust as a grantor trust under Subpart E, Part I of Subchapter
J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended,
for U.S. federal income tax purposes.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With respect to each separate Trust and the series of
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates of such series (including consents obtained in connection
with a tender offer or exchange offer for the Certificates) evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in such Trust, by Direction of said Certificateholders delivered to the Company
and the Trustee, the Company may (with the consent of the Owner Trustees, if
any, relating to the Certificates, which consent shall not be unreasonably
withheld), but shall not be obligated to, and the Trustee (subject to Section
9.03) shall, enter into an agreement or agreements supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement, any Intercreditor Agreement or any
Liquidity Facility to the extent applicable to such Certificateholders or of
modifying in any manner the rights and obligations of such Certificateholders
under this Agreement any Intercreditor Agreement or any Liquidity Facility;
provided, however, that no such agreement shall, without the consent of the
Certificateholder of each Outstanding Certificate 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 that are required to be made herein on
any Certificate of such series, or change any date of payment on any
Certificate of such series, or change the place of payment where, or
the coin or currency in which, any Certificate of such series is
payable, or impair the right to institute suit for the enforcement of
any such payment or distribution on or after the Regular Distribution
Date or Special Distribution Date applicable thereto; or
<PAGE> 58
-52-
(b) permit the disposition of any Equipment Note included in
the Trust Property of such Trust except as permitted by this Agreement,
or otherwise deprive such Certificateholder of the benefit of the
ownership of the Equipment Notes in such Trust; or
(c) alter the priority of distributions specified in the
Intercreditor Agreement in a manner materially adverse to the interests
of the Certificateholders of any series; or
(d) reduce the specified percentage of the aggregate
Fractional Undivided Interests of such Trust that is required for any
such supplemental agreement, or reduce such specified percentage
required for any waiver (of compliance with certain provisions of this
Agreement or certain defaults hereunder and their consequences)
provided for in this Agreement; or
(e) modify any of the provisions of this Section 9.02 or
Section 6.05, except to increase any such percentage or to provide that
certain other provisions of this Agreement cannot be modified or waived
without the consent of the Certificateholder of each Certificate of
such series affected thereby; or
(f) adversely affect the status of any Trust as a grantor
trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle
A of the Internal Revenue Code of 1986, as amended, for U.S.
federal income tax purposes.
It shall not be necessary for any Direction of such
Certificateholders under this Section 9.02 to approve the particular form of any
proposed supplemental agreement, but it shall be sufficient if such Direction
shall approve the substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in
the opinion of the Trustee any document required to be executed by it pursuant
to the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity
or indemnity in favor of the Trustee under this Basic Agreement or any Trust
Supplement, the Trustee may in its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In
executing, or accepting the additional trusts created by, any supplemental
agreement permitted by this Article or the modifications thereby of the trusts
created by this Agreement, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental agreement is authorized or permitted by this
Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the
execution of any agreement supplemental to this Agreement under this Article,
this Basic Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this
<PAGE> 59
-53-
Basic Agreement for all purposes; and every Certificateholder of each series
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby to the extent applicable to such series.
Section 9.06. Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental
Agreements. Certificates of each series authenticated and delivered after the
execution of any supplemental agreement applicable to such series pursuant to
this Article may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental agreement; and, in such case, suitable
notation may be made upon Outstanding Certificates of such series after proper
presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indenture and
Other Note Documents. In the event that the Trustee, as holder (or beneficial
owner through the Subordination Agent) of any Equipment Notes (or as a
prospective purchaser of any Postponed Notes) in trust for the benefit of the
Certificateholders of any series or as Controlling Party under an Intercreditor
Agreement, receives (directly or indirectly through the Subordination Agent) a
request for a consent to any amendment, modification, waiver or supplement under
any Indenture, other Note Document or any other related document, which request
would require the consent of Certificateholders of any series under Section 9.02
hereof, the Trustee shall forthwith send a notice of such proposed amendment,
modification, waiver or supplement to each Certificateholder of such series
registered on the Register as of the date of such notice. The Trustee shall
request from the Certificateholders of such series a Direction as to (a) whether
or not to take or refrain from taking (or direct the Subordination Agent to take
or refrain from taking) any action which a holder of (or, with respect to
Postponed Notes, a prospective purchaser of) such Equipment Note the option to
direct, (b) whether or not to give or execute (or direct the Subordination Agent
to give or execute) any waivers, consents, amendments, modifications or
supplements as a holder of (or, with respect to Postponed Notes, a prospective
purchaser of) such Equipment Note or as Controlling Party and (c) how to vote
(or direct the Subordination Agent to vote) any Equipment Note (or, with respect
to a Postponed Note, its commitment to acquire such Postponed Note) if a vote
has been called for with respect thereto. Provided such a request for
Certificateholder Direction shall have been made, in directing any action or
casting any vote or giving any consent as the holder of any Equipment
<PAGE> 60
-54-
Note (or in directing the Subordination Agent in any of the foregoing), (i)
other than as Controlling Party, the Trustee shall vote for or give consent to
any such action with respect to such Equipment Note (or Postponed Note) in the
same proportion as that of (A) the aggregate face amounts of all Certificates
actually voted in favor of or for giving consent to such action by such
Direction of Certificateholders to (B) the aggregate face amount of all
Outstanding Certificates and (ii) as Controlling Party, the Trustee shall vote
as directed in such Certificateholder Direction by the Certificateholders of
such series evidencing a Fractional Undivided Interest aggregating not less than
a majority in interest in the Trust. For purposes of the immediately preceding
sentence, a Certificate shall have been "actually voted" if the Holder of such
Certificate has delivered to the Trustee an instrument evidencing such Holder's
consent to such Direction prior to one Business Day before the Trustee directs
such action or casts such vote or gives such consent. Notwithstanding the
foregoing, but subject to Section 6.04 and any Intercreditor Agreement, the
Trustee may, with respect to the Certificates of any series, in its own
discretion and at its own direction, consent and notify the relevant Loan
Trustee of such consent (or direct the Subordination Agent to consent and notify
the Loan Trustee of such consent) to any amendment, modification, waiver or
supplement under any related Indenture or any other related Note Document if an
Event of Default hereunder shall have occurred and be continuing or if such
amendment, modification, waiver or supplement will not materially adversely
affect the interests of the Certificateholders of such series.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts. In respect of each
Trust created by the Basic Agreement as supplemented by a related Trust
Supplement, the respective obligations and responsibilities of the Company and
the Trustee with respect to such Trust shall terminate upon the distribution to
all Holders of Certificates of the series of such Trust and the Trustee of all
amounts required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property of such Trust;
provided, however, that in no event shall the Trust continue beyond one hundred
ten (110) years following the date of the execution of the Trust Supplement with
respect to such Trust (or such other final expiration date as may be specified
in such Trust Supplement).
Notice of any termination of a Trust, specifying the
applicable Regular Distribution Date (or the applicable Special Distribution
Date, as the case may be) upon which the Certificateholders of any series may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be mailed promptly by the Trustee to
Certificateholders of such series not earlier than the minimum of days and not
later than the maximum number of days specified therefor in the related Trust
Supplement preceding such final distri-
<PAGE> 61
-55-
bution specifying (A) the Regular Distribution Date (or Special Distribution
Date, as the case may be) upon which the proposed final payment of the
Certificates of such series will be made upon presentation and surrender of
Certificates of such series at the office or agency of the Trustee therein
specified, (B) the amount of any such proposed final payment, and (C) that the
Record Date otherwise applicable to such Regular Distribution Date (or Special
Distribution Date, as the case may be) is not applicable, payments being made
only upon presentation and surrender of the Certificates of such series at the
office or agency of the Trustee therein specified. The Trustee shall give such
notice to the Registrar at the time such notice is given to Certificateholders
of such series. Upon presentation and surrender of the Certificates of such
series in accordance with such notice, the Trustee shall cause to be distributed
to Certificateholders of such series amounts distributable on such Regular
Distribution Date (or Special Distribution Date, as the case may be) pursuant to
Section 4.02.
In the event that all of the Certificateholders of such series
shall not surrender their Certificates for cancellation within six months after
the date specified in the above-mentioned written notice, the Trustee shall give
a second written notice to the remaining Certificateholders of such series to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. No additional interest shall accrue on the Certificates of
such series after any Regular Distribution Date (or Special Distribution Date,
as the case may be) of such series, as specified in the first written notice. In
the event that any money held by the Trustee for the payment of distributions on
the Certificates of such series shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after 60 days' notice from the
Company, is one month prior to the escheat period provided under applicable law)
after the final distribution date with respect thereto, the Trustee shall pay to
each Loan Trustee the appropriate amount of money relating to such Loan Trustee
and shall give written notice thereof to the related Owner Trustees, the Owner
Participants and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder of any series shall not operate to
terminate this Agreement or the related Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations, and
liabilities of the parties hereto or any of them.
<PAGE> 62
-56-
Section 12.02. Liabilities of Certificateholders. Neither the
existence of the Trust nor any provision in this Agreement is intended to or
shall limit the liability the Certificateholders would otherwise incur if the
Certificateholders owned Trust Property as co-owners, or incurred any
obligations of the Trust, directly rather than through the Trust.
Section 12.03. Registration of Equipment Notes in Name of
Subordination Agent. If the Trust is party to an Intercreditor Agreement, the
Trustee agrees that all Equipment Notes to be purchased by such Trust shall be
issued in the name of the Subordination Agent under such Intercreditor Agreement
or its nominee and held by such Subordination Agent in trust for the benefit of
the Certificateholders, or, if not so held, such Subordination Agent or its
nominee shall be reflected as the owner of such Equipment Notes in the register
of the issuer of such Equipment Notes.
Section 12.04. Notices. (a) Unless otherwise specifically
provided herein or in the applicable Trust Supplement, all notices required
under the terms and provisions of this Basic Agreement or such Trust Supplement
shall be in English and in writing, and any such notice may be given by United
States mail, courier service or telecopy, and any such notice shall be effective
when delivered or received or, if mailed, three days after deposit in the United
States mail with proper postage for ordinary mail prepaid,
(i) if to the Company:
Atlas Air, Inc.
538 Commons Drive
Golden, CO 80401
Attention: Chief Financial Officer
Facsimile: (303) 526-5051
(ii) if to the Trustee:
Wilmington Trust Company
One Rodney Square
1100 N. Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Department
Facsimile: (302) 651-8882
(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders of any
series shall be mailed by first-class mail to the addresses for
Certificateholders of such series shown on the
<PAGE> 63
-57-
Register kept by the Registrar and to addresses filed with the Trustee for
Certificate Owners of such series. Failure so to mail a notice or communication
or any defect in such notice or communication shall not affect its sufficiency
with respect to other Certificateholders or Certificate Owners of such series.
(d) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is conclusively presumed to have
been duly given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders of such series, it shall mail a copy to the Trustee and to
each Paying Agent for such series at the same time.
(f) Notwithstanding the foregoing, all communications or
notices to the Trustee shall be deemed to be given only when received by a
Responsible Officer of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy
of any demand, notice or written communication received by the Trustee hereunder
from any Certificateholder, Owner Trustee or Loan Trustee.
Section 12.05. Governing Law. THIS BASIC AGREEMENT HAS BEEN
DELIVERED IN THE STATE OF NEW YORK AND, TOGETHER WITH ALL TRUST SUPPLEMENTS AND
CERTIFICATES, SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.06. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the related Trust,
or of the Certificates of such series or the rights of the Certificateholders
thereof.
Section 12.07. Trust Indenture Act Controls. This Agreement is
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions. If any provision of this Agreement
limits, qualifies or conflicts with another provision which is required to be
included in this Agreement by the Trust Indenture Act, the required provision
shall control.
<PAGE> 64
-58-
Section 12.08. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 12.09. Successors and Assigns. All covenants,
agreements, representations and warranties in this Agreement by the Trustee and
the Company shall bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
Section 12.10. Benefits of Agreement. Nothing in this
Agreement or in the Certificates of any series, express or implied, shall give
to any Person, other than the parties hereto and their successors hereunder, and
the Certificateholders of such series, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
Section 12.11. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate of
any series shall not be a Business Day, then (notwithstanding any other
provision of this Agreement) payment need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on such Regular Distribution Date or Special Distribution Date, and no
interest shall accrue during the intervening period.
Section 12.12. Counterparts. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.13. Communication by Certificateholders, with Other
Certificateholders. Certificateholders of any series may communicate with other
Certificateholders of any series with respect to their rights under this Basic
Agreement, the related Trust Supplement or the Certificates of such series
pursuant to Section 312(b) of the Trust Indenture Act. The Company, the Trustee
and any and all other persons benefited by this Agreement shall have the
protection afforded by Section 312(c) of the Trust Indenture Act.
Section 12.14. Intention of Parties. The parties hereto intend
that each Trust be classified for U.S. federal income tax purposes as a grantor
trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended, and not as a trust or association taxable as a corporation or
as a partnership. The Trustee agrees to hold all assets of each Trust for
investment purposes only. The powers granted and obligations undertaken pursuant
to this Agreement shall be so construed so as to further such intent.
<PAGE> 65
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized as of the
day and year first written above.
ATLAS AIR, INC.
By:
----------------------------------------
Name: Richard H. Shuyler
Title: Chief Financial Officer, Sr. Vice
Pres., Finance; and Corporate
Treasurer
WILMINGTON TRUST COMPANY,
as Trustee
By:
----------------------------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 66
EXHIBIT A
FORM OF CERTIFICATE
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.(1)
ATLAS AIR PASS THROUGH TRUST
Pass Through Certificate, Series _______
Final Regular Distribution Date: ___________, ____
evidencing a fractional undivided interest in a
trust, the property of which includes certain
equipment notes each secured by Aircraft owned
by or leased to Atlas Air, Inc.
Certificate
No._______ $___________ Fractional Undivided Interest
representing ____% of the Trust
per $1,000 face amount
THIS CERTIFIES THAT _________________________, for value
received, is the registered owner of a $_______ (_______ dollars) Fractional
Undivided Interest in the Atlas Air Pass Through Trust, Series ___ (the "Trust")
created by Wilmington Trust Company, as trustee (the "Trustee"), pursuant to a
Pass Through Trust Agreement dated as of ___,
- ----------
(1) This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company.
<PAGE> 67
-61-
1999 (the "Basic Agreement"), as supplemented by Trust Supplement No. ___
thereto dated ___, 1999 (collectively, the "Agreement"), between the Trustee and
Atlas Air, Inc., a corporation incorporated under Delaware law (the "Company"),
a summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Agreement. This Certificate is one of the
duly authorized Certificates designated as "___% Atlas Air Pass Through
Certificate, Series ___" (herein called the "Certificates"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement. By virtue of its acceptance hereof, the Certificateholder of this
Certificate assents to and agrees to be bound by the provisions of the Agreement
and any related Intercreditor Agreement. The property of the Trust includes
certain Equipment Notes and all rights of the Trust to receive any payments
under any Intercreditor Agreement or Liquidity Facility (the "Trust Property").
Each issue of the Equipment Notes is or will be secured by, among other things,
a security interest in aircraft leased to or owned by the Company.
The Certificates represent fractional undivided interests in
the Trust and the Trust Property, and have no rights, benefits or interest in
respect of any other separate trust established pursuant to the terms of the
Basic Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement
and any related Intercreditor Agreement, from funds then available to the
Trustee, there will be distributed on each ___________ and ___________ (a
"Regular Distribution Date"), commencing on ___________, ____, to the Person in
whose name this Certificate is registered at the close of business on the 15th
day preceding the Regular Distribution Date, an amount in respect of the
Scheduled Payments on the Equipment Notes due on such Regular Distribution Date,
the receipt of which has been confirmed by the Trustee, equal to the product of
the percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Scheduled Payments. Subject to and in accordance with
the terms of the Agreement and any related Intercreditor Agreement , in the
event that Special Payments on the Equipment Notes are received by the Trustee,
from funds then available to the Trustee, there shall be distributed on the
applicable Special Distribution Date, to the Person in whose name this
Certificate is registered at the close of business on the 15th day preceding the
Special Distribution Date, an amount in respect of such Special Payments on the
Equipment Notes, the receipt of which has been confirmed by the Trustee, equal
to the product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Special Payments so received.
If a Regular Distribution Date or Special Distribution Date is not a Business
Day, distribution shall be made on the immediately following Business Day with
the same force and effect as if made on such Regular Distribution Date or
Special Distribution Date and no interest shall accrue during the intervening
period. The Trustee shall mail notice of each Spe-
<PAGE> 68
-62-
cial Payment and the Special Distribution Date therefor to the Certificateholder
of this Certificate.
Distributions on this Certificate will be made by the Trustee
by check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the Trustee
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency of the Trustee specified in such
notice.
The Certificates do not represent a direct obligation of, or
an obligation guaranteed by, or an interest in, the Company or the Trustee or
any affiliate thereof. The Certificates are limited in right of payment, all as
more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Certificateholder
of this Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under the
Agreement at any time by the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust. Any
such consent by the Certificateholder of this Certificate shall be conclusive
and binding on such Certificateholder and upon all future Certificateholders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Certificateholders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar duly endorsed or accompanied by a written instrument
<PAGE> 69
-63-
of transfer in form satisfactory to the Trustee and the Registrar, duly executed
by the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in the
Trust will be issued to the designated transferees or transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided Interest
and integral multiples thereof except that one Certificate may be issued in a
different denomination. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration or
transfer or exchange, but the Trustee shall require payment of a sum sufficient
to cover any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or
the Registrar may treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Trustee, the Registrar,
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
THIS CERTIFICATE AND THE AGREEMENT HAVE EACH BEEN DELIVERED IN
THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES AND
CERTIFICATEHOLDERS HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
<PAGE> 70
-64-
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
ATLAS AIR, INC.
By: Wilmington Trust Company,
as Trustee
By:
------------------------------
Title:
---------------------------
Dated:
---------------------
<PAGE> 71
FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates
referred to in the
within-mentioned Agreement.
WILMINGTON TRUST COMPANY,
as Trustee
By:
--------------------------
Authorized Officer
<PAGE> 1
Exhibit 4.2
- --------------------------------------------------------------------------------
ATLAS AIR, INC.
TO
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
---------
INDENTURE
DATED AS OF ......., 1999
- --------------------------------------------------------------------------------
<PAGE> 2
ATLAS AIR, INC.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TIA INDENTURE
SECTION SECTION
<S> <C> <C>
Section 310(a)(1) ....................................................... 6.09
(a)(2) ....................................................... 6.09
(a)(3) ....................................................... Not Applicable
(a)(4) ....................................................... Not Applicable
(b) ....................................................... 6.08
6.10
Section 311(a) ....................................................... 6.13
(b) ....................................................... 6.13
Section 312(a) ....................................................... 7.01
7.02(a)
(b) ....................................................... 7.02(b)
(c) ....................................................... 7.02(c)
Section 313(a) ....................................................... 7.03(a)
(b) ....................................................... 7.03(a)
(c) ....................................................... 7.03(a)
(d) ....................................................... 7.03(b)
Section 314(a) ....................................................... 7.04
(a)(4) ....................................................... 1.01
10.04
Section (b) ....................................................... Not Applicable
(c)(1) ....................................................... 1.02
(c)(2) ....................................................... 1.02
(c)(3) ....................................................... Not Applicable
(d) ....................................................... Not Applicable
(e) ....................................................... 1.02
Section 315(a) ....................................................... 6.01
(b) ....................................................... 6.02
(c) ....................................................... 6.01
(d) ....................................................... 6.01
(e) ....................................................... 5.14
Section 316(a) ....................................................... 1.01
(a)(1)(A) ....................................................... 5.02
5.12
Section (a)(1)(B) ....................................................... 5.13
(a)(2) ....................................................... Not Applicable
(b) ....................................................... 5.08
(c) ....................................................... 1.04(c)
Section 317(a)(1) ....................................................... 5.03
(a)(2) ....................................................... 5.04
(b) ....................................................... 10.03
Section 318(a) ....................................................... 1.07
</TABLE>
N.A. means Not Applicable
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
Page
----
<TABLE>
<CAPTION>
Page
----
ARTICLE ONE
Definitions and other Provisions of General Application
<S> <C> <C>
Section 1.01. Definitions....................................................................... 1
Section 1.02. Compliance Certificates and Opinions.............................................. 8
Section 1.03. Form of Documents Delivered to Trustee............................................ 9
Section 1.04. Acts of Holders; Record Dates..................................................... 9
Section 1.05. Notices, Etc., to Trustee and Comipany............................................ 11
Section 1.06. Notice to Holders; Waiver......................................................... 11
Section 1.07. Conflict with Trust Indenture Act................................................. 12
Section 1.08. Effect of Headings and Table of Contents.......................................... 12
Section 1.09. Successors and Assigns............................................................ 12
Section 1.10. Separability Clause............................................................... 12
Section 1.11. Benefits of Indenture............................................................. 13
Section 1.12. Governing Law..................................................................... 13
Section 1.13. Legal Holidays.................................................................... 13
ARTICLE TWO
Security Forms
Section 2.01. Forms Generally................................................................... 13
Section 2.02. Form of Face of Security.......................................................... 14
Section 2.03. Form of Reverse of Security....................................................... 17
Section 2.04. Form of Legend for Global Securities.............................................. 22
Section 2.05. Form of Trustee's Certificate of Authentication................................... 22
ARTICLE THREE
The Securities
Section 3.01. Amount Unlimited; Issuable in Series.............................................. 23
Section 3.02. Denominations..................................................................... 26
</TABLE>
- -----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-i-
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 3.03. Execution, Authentication, Delivery and Dating.................................... 26
Section 3.04. Temporary Securities.............................................................. 28
Section 3.05. Registration, Registration of Transfer and Exchange............................... 28
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities.................................. 31
Section 3.07. Payment of Interest; Interest Rights Preserved.................................... 32
Section 3.08. Persons Deemed Owners............................................................. 33
Section 3.09. Cancellation...................................................................... 33
Section 3.10. Computation of Interest........................................................... 34
ARTICLE FOUR
Satisfaction and Discharge
Section 4.01. Satisfaction and Discharge of Indenture........................................... 34
Section 4.02. Application of Trust Money........................................................ 35
ARTICLE FIVE
Remedies
Section 5.01. Events of Default................................................................. 36
Section 5.02. Acceleration of Maturity; Rescission and Annulment................................ 38
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee................... 39
Section 5.04. Trustee May File Proofs of Claim.................................................. 40
Section 5.05. Trustee May Enforce Claims Without Possession of Securities....................... 41
Section 5.06. Application of Money Collected.................................................... 41
Section 5.07. Limitation on Suits............................................................... 41
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest....................................................................... 42
Section 5.09. Restoration of Rights and Remedies................................................ 43
Section 5.10. Rights and Remedies Cumulative.................................................... 43
Section 5.11. Delay or Omission Not Waiver...................................................... 43
Section 5.12. Control by Holders................................................................ 43
Section 5.13. Waiver of Past Defaults........................................................... 44
Section 5.14. Undertaking for Costs............................................................. 44
Section 5.15. Waiver of Stay or Extension Laws.................................................. 45
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
ARTICLE SIX
The Trustee
<S> <C> <C>
Section 6.01. Certain Duties and Responsibilities............................................... 45
Section 6.02. Notice of Defaults................................................................ 45
Section 6.03. Certain Rights of Trustee......................................................... 46
Section 6.04. Not Responsible for Recitals or Issuance of Securities............................ 47
Section 6.05. May Hold Securities............................................................... 47
Section 6.06. Money Held in Trust............................................................... 47
Section 6.07. Compensation and Reimbursement.................................................... 48
Section 6.08. Disqualification; Conflicting Interests........................................... 48
Section 6.09. Corporate Trustee Required; Eligibility........................................... 48
Section 6.10. Resignation and Removal; Appointment of Successor................................. 49
Section 6.11. Acceptance of Appointment by Successor............................................ 51
Section 6.12. Merger, Conversion, Consolidation or Succession to Business....................... 52
Section 6.13. Preferential Collection of Claims Against Company................................. 53
Section 6.14. Appointment of Authenticating Agent............................................... 53
ARTICLE SEVEN
Holders, Lists and Reports by Trustee and Company
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders......................... 55
Section 7.02. Preservation of Information; Communications to Holders............................ 56
Section 7.03. Reports-by Trustee................................................................ 56
Section 7.04. Reports by Company................................................................ 56
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms.............................. 57
Section 8.02. Successor Substituted............................................................. 58
</TABLE>
-iii
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE NINE
Supplemental Indentures
Section 9.01. Supplemental Indentures Without Consent of Holders................................ 58
Section 9.02. Supplemental Indentures with consent of Holders................................... 60
Section 9.03. Execution of Supplemental Indentures.............................................. 61
Section 9.04. Effect of Supplemental Indentures................................................. 61
Section 9.05. Conformity with Trust Indenture Act............................................... 62
Section 9.06. Reference in Securities to Supplemental Indentures................................ 62
ARTICLE TEN
Covenants
Section 10.01. Payment of Principal, Premium and Interest........................................ 62
Section 10.02. Maintenance of Office or Agency................................................... 62
Section 10.03. Money for securities Payments to Be Held in Trust................................. 63
Section 10.04. Statement by Officers-as to Default............................................... 64
Section 10.05. Existence......................................................................... 65
Section 10.06. Waiver of Certain Covenants....................................................... 65
Section 10.07. Calculation of Original Issue Discount; Calculation of Foreign
Currency Equivalents; and Certain Information Concerning Tax
Reporting...................................................................... 65
ARTICLE ELEVEN
Redemption of Securities
Section 11.01. Applicability of Article.......................................................... 66
Section 11.02. Election-to Redeem; Notice to Trustee............................................. 67
Section 11.03. Selection by Trustee of Securities to Be Redeemed................................. 67
Section 11.04. Notice of-Rademption.............................................................. 68
Section 11.05. Deposit of Redemption Price....................................................... 68
Section 11.06. Securities Payable on Redemption Date............................................. 69
Section 11.07. Securities Redeemed in Part....................................................... 69
</TABLE>
-iv-
<PAGE> 7
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE TWELVE
Sinking Funds
Section 12.01. Applicability of Article.......................................................... 70
Section 12.02. Satisfaction of Sinking Fund Payments with Securities............................. 70
Section 12.03. Redemption of Securities for Sinking Fund......................................... 70
ARTICLE THIRTEEN
DEFEASANCE
Section 13.01. Applicability of Article.......................................................... 71
Section 13.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations.................. 71
Section 13.03. Deposited Moneys and U.S. Government Obligations to be Held in Trust.............. 74
Section 13.04. Repayment to Company.............................................................. 75
Section 13.05. Reinstatement..................................................................... 75
ARTICLE FOURTEEN
IMMUNITY
Section 14.01. Personal Immunity of Incorporators, Stockholders, Directors and
Officers....................................................................... 76
TESTIMONIUM .................................................................................................
SIGNATURES AND SEALS ........................................................................................
ACKNOWLEDGMENTS .............................................................................................
</TABLE>
-v-
<PAGE> 8
INDENTURE, dated as of ................., between Atlas Air,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), and State Street Bank and Trust Company,
as Trustee (herein called the "Trustee').
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and other Provisions
of General Application
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance
<PAGE> 9
-2-
with generally accepted accounting principles, and, except an otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) the words "Article" and "Section" refer to an Article
and Section, respectively, of this Indenture; and
(5) the words "herein, "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Thirteen, are
defined in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee appointed by that board, which
committee may consist entirely of members of the board of directors of the
Company, non-members of the board, or a mixture of board and non-board members.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
<PAGE> 10
-3-
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by the Chairman of the Board, the
Chief Executive Officer, the Chief Operating Officer, the President, the Chief
Financial Officer or a Vice President of the Company, and by the Comptroller,
the Treasurer, an Assistant Comptroller, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office on the date hereof is located at Goodwin Square, 225
Asylum Street, Hartford, Connecticut 06103, Att.: Corporate Trust Department.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in Section
3.07.
"Depositary" means, with respect to the Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, the clearing agency registered under the Exchange Act specified for
that purpose as contemplated by Section 3.01.
"Event of Default" has the meaning specified in Section 5.01.
<PAGE> 11
-4-
"Exchange Act" means the Securities Exchange Act of 1934 as it
may be amended and any successor act thereto.
"Global Security" means a Security bearing the legend
specified in Section 2.04 evidencing all or part of a series of Securities,
authenticated and delivered to the Depositary for such series or its nominee,
and registered in the name of such Depositary or nominee.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.01.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the Chief Operating Officer,
the President, the Chief Financial Officer or a Vice President of the Company,
and by the Comptroller, the Treasurer, an Assistant Comptroller, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 10.04 shall be the principal executive, financial or
accounting officer of the Company.
<PAGE> 12
-5-
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be reasonably acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities which have been defeased pursuant to Section
13.02(a); and
(4) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 5.02, (B) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be
<PAGE> 13
-6-
the U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 3.01 on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (A) above) of such Security, and (C) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed,, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
<PAGE> 14
-7-
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture
<PAGE> 15
-8-
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the
certificates provided for in Section 10.04) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(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 each such
individual, 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, in the opinion of each such
individual, such condition or covenant has been complied with.
<PAGE> 16
-9-
Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.04. Acts of Holders; Record Dates.
(a) Any request, demand,, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments.
<PAGE> 17
-10-
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and a Depositary that is a
Holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interests in any such Global Security.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may fix any day as the record date for the
purpose of determining the Holders of Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders of Securities of such series, other than any such action provided or
permitted to be taken under Section 5.01, 5.02 or 5.12. Such record date shall
be not earlier than the 30th day prior to the first solicitation of any Holder
to give or take any such action and not later than the date of such first
solicitation. With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall be entitled to
give or take the relevant action. The Company shall notify the Trustee in
writing of any such record date not later than the date of the first
solicitation of any Holder to give or take any action.
<PAGE> 18
-11-
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
Section 1.05. Notices, Etc., to Trustee and Comipany.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, to the
attention of its Treasurer, with a separate copy to its General Counsel
(provided that the failure of any Holder to send a separate copy shall
not affect the sufficiency of the notice), or at any other address
previously furnished in writing to the Trustee by the Company.
Section 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any
<PAGE> 19
-12-
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
<PAGE> 20
-13-
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture. Section 1.12. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
Section 2.01. Forms Generally.
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities
<PAGE> 21
-14-
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.03 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.02. Form of Face of Security.
[Insert any legend, if any, required by the Internal Revenue
Code and the regulations thereunder.]
Atlas Air, Inc.
.......................................
No. ......... $ .........
Atlas Air, Inc., a corporation duly organized and existing under the laws of
Delaware (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to .............................................., or registered
assigns, the principal sum of ................ ................... Dollars on
........... [if the Security is to bear interest prior to Maturity, insert --,
and to pay interest thereon from ................. or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on .......... and .......... in each year, commencing..........,
at the rate of ....% per annum, until the principal hereof is paid or made
available for payment [if applicable, insert --, and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of ....% per
annum on any overdue principal and premium and on any overdue installment of
interest]. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ......... or .......... (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more
<PAGE> 22
-15-
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 30 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable insert --any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in .........., in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [if applicable, insert
- --; provided, however, that at the option of the Company payment or interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
<PAGE> 23
-16-
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
<PAGE> 24
-17-
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
ATLAS AIR, INC.
By....................
Attest:
........................
Section 2.03. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of ................ (herein called
the "Indenture"), between the Company and State Street Bank and Trust Company as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof[, limited in aggregate principal amount to
$............].
[If applicable, insert --The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert --(1) on .......... in any year commencing with the year
......... and ending with the year .......... through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after 19..], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or on or before .........,
___%, and if redeemed] during the 12-month period beginning ......... of the
years indicated,
<PAGE> 25
-18-
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to .......% of the principal amount,
together in the case or any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
............. in any year commencing with the year .... and ending with the year
.... through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [on or after ...........], as a whole or in part, at the election or
the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
............. of the years indicated,
REDEMPTION PRICE
FOR REDEMPTION REDEMPTION PRICE FOR
THROUGH OPERATION REDEMPTION OTHERWISE
OF THE THAN THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
- ---- ----------------- ----------------------
<PAGE> 26
-19-
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
................., redeem any Securities of this series as contemplated by
[Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than .....% per annum.]
[The sinking fund for this series provides for the redemption
on .......... in each year beginning with the year .......... and ending with
the year .......... of [not less than $.......... ("mandatory sinking fund") and
not more than] $....... aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
[If the Security is subject to redemption, insert --In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of
<PAGE> 27
-20-
principal of the Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture. Such amount shall be
equal to -- insert formula for determining the amount. Upon payment (i) of the
amount of principal so declared due and payable and (ii) of interest on any
overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.]
[If applicable, insert -- The Indenture contains provisions
for defeasance at any time of (1) the entire indebtedness of this Security or
(2) certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As set forth in, and subject to, the provisions of the
Indenture, no Holder of any Security will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default, the Holders of not less than 25% in principal
amount of the Outstanding Securities shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal amount of
<PAGE> 28
-21-
the Outstanding Securities a direction inconsistent with such request and shall
have failed to institute such proceedings within 60 days; provided, however,
that such limitations do not apply to a suit instituted by the Holder hereof for
the enforcement of payment of the principal of (and premium, if any) or any
interest on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $....... and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the
<PAGE> 29
-22-
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to then in the Indenture.
Section 2.04. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is not
exchangeable for Securities registered in the name of a Person other
than the Depositary or its nominee except in the limited circumstances
described in the Indenture, and no transfer of this Security (other
than a transfer of this Security as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary) may be registered
except in the limited circumstances described in the Indenture."
Section 2.05. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
..............................,
As Trustee
----------
...............................
Authorized Officer
------------------
<PAGE> 30
-23-
ARTICLE THREE
The Securities
Section 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 3.03, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or
11.07);
(3) whether Securities of the series are to be in registered
form, bearer form (with or without coupons) or both, any restrictions
applicable to the offer, sale or delivery of Securities in bearer form
and the terms, if any, upon which Securities of the series in bearer
form may be exchanged for Securities of the series in registered form;
(4) whether any Securities of the series are to be issuable
in temporary or permanent global form with or without coupons and
whether beneficial owners of interests in any such global Security may
exchange such interests for Securities of such series and like tenor of
any authorized form and denomination and the circumstances under which
any such exchanges may occur;
(5) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in
<PAGE> 31
-24-
whose name that Security (or one or more Predecessor Securities) is
registered at the close or business on the Regular Record Date for such
interest;
(6) the date or dates on which the principal of the Securities
of the series is payable;
(7) the rate or rates at which the Securities of the series
shall bear interest, if any, the formula pursuant to which interest
shall be determined, if any, the basis upon which interest shall be
calculated if other than a 360 day year of 12 months of 30 days each,
the date or dates from which such interest shall accrue, the Interest
Payment Dates on which any such interest shall be payable and the
Regular Record Date for any interest payable on any Interest Payment
Date;
(8) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(9) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions up-on which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(11) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(12) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency of
the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 1.01:
<PAGE> 32
-25-
(13) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(14) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(15) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(16) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary or Depositaries with respect to such Global
Security or Securities and the circumstances under which any such
Global Security may be registered for transfer or exchange, or
authenticated and delivered, in the name of a Person other than such
Depositary or its nominee, if other than as set forth in Section 3.05;
(17) any other covenant included for the benefit of
Securities of the series in addition to those included in this
Indenture;
(18) the application, if any, of Section 13.02(a) or 13.02(b)
to the Securities of the series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 9.01(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
3.03) set forth, or
<PAGE> 33
-26-
determined in the manner provided, in the officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 3.02. Denominations.
Unless otherwise specified as contemplated by Section 3.01,
the Securities of each series shall be issuable only in registered form without
coupons in such denominations as shall be specified as contemplated by Section
3.01. In the absence of any such specification with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
Section 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any Series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Secu-
<PAGE> 34
-27-
rities, the Trustee shall be entitled to receive, and (subject to Section 6.01)
shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.01, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.01, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication
<PAGE> 35
-28-
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.
Section 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 3.05. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers
<PAGE> 36
-29-
of Securities as herein provided; provided that the Company may, from time to
time, designate (or change any designation of) any other Person or Persons to
act as Security Registrar or co-Security Registrars with respect to the
Securities of one or more series, with notice to the Trustee and as provided in
Section 1.06 to the Holders. At all reasonable times the Security Register shall
be open for inspection by the Company. In the event that the Trustee shall not
be the Security Registrar, it shall have the right to examine the Security
Register at all reasonable times. At all reasonable times the Security Register
shall be open for inspection by the Company. In the event that the Trustee shall
not be the Security Registrar, it shall have the right to examine the Security
Register at all reasonable times.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series,, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other
<PAGE> 37
-30-
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
3.04, 9.06 or 11.07 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
11.03 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing, no Global Security shall be
registered for transfer or exchange, or authenticated and delivered, whether
pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, in the
name of a Person other than the Depositary for such Global Security or its
nominee until (i) the Depositary with respect to a Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security or the Depositary ceases to be a clearing agency registered under the
Exchange Act, (ii) the Company executes and delivers to the Trustee a Company
Order that such Global Security shall be so transferable and exchangeable or
(iii) there shall have occurred and be continuing an Event of Default, or any
event which after notice or lapse of time, or both, would constitute an Event of
Default, with respect to the Securities of such series. Upon the occurrence in
respect of any Global Security of any series of any one or more of the
conditions specified in clauses (i), (ii), (iii) of the preceding sentence or
such other conditions as may be specified as contemplated by Section 3.01 for
such series, such Global Security may be registered for transfer or exchange for
Securities registered in the names of, or authenticated and delivered to, such
Persons as the Depositary with respect to such series shall direct.
Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security, whether pursuant to this Section,
Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall also be a Global Security
and bear the legend specified in Section 2.04.
<PAGE> 38
-31-
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company and the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any mutilated, destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the Company, whether
or not the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
<PAGE> 39
-32-
Section 3.07. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first class postage prepaid,
to each Holder of Securities of such series at such Holder's address as
it appears in the Security Register, not less than 10 days
<PAGE> 40
-33-
prior to such Special Record Date. Notice of the proposed Payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security in registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 3.07) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.09. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the
<PAGE> 41
-34-
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order.
Section 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
<PAGE> 42
-35-
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case any be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07, the
obligations of the Trustee to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section 4.02
and the last paragraph of Section 10.03 shall survive.
Section 4.02. Application of Trust Money.
Subject to provisions of the last paragraph of Section 10.03,
all money deposited with the Trustee pursuant to Section 4.01 shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of
<PAGE> 43
-36-
the principal and any premium and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 5.01. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be affected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity, and the
continuance of such default for a period of 5 Business Days; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series, and the
continuance of such default for a period of 5 Business Days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach in elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be
<PAGE> 44
-37-
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or a
Restricted Subsidiary (including a default with respect to Securities
of any series other than that series) or under any mortgage, indenture
or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness money borrowed by the Company or
any Subsidiary (including this Indenture), whether such indebtedness
now exists or shall hereafter be created, which default (i) shall have
resulted from the failure by the Company or any Subsidiary to pay the
principal amount due upon final stated maturity of such indebtedness in
an amount in excess of $25 million after the expiration of any grace
period or (ii) shall have resulted in such indebtedness in an amount in
excess of $25 million becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable, in
either case without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10
days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder: or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving an properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
<PAGE> 45
-38-
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary came or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due; or
(8) any other Event of Default provided with respect to
Securities of that series.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
<PAGE> 46
-39-
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof and such
default continues for a period of 5 Business Days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount
<PAGE> 47
-40-
then due and payable on such Securities for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other Property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
6.07.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, the Trustee may vote on behalf of
<PAGE> 48
-41-
the Holders for the election of a trustee in bankruptcy or similar official and
may be a member of a creditors or other similar committee.
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise,
<PAGE> 49
-42-
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 3.07) any interest on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
<PAGE> 50
-43-
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 5.12. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
<PAGE> 51
-44-
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company,
by any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
<PAGE> 52
-45-
Section 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 6.01. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expand or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment or such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
Section 6.02. Notice of Defaults.
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of such series
notice of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
Section 5.01(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or
<PAGE> 53
-46-
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
Section 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically proscribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond,
<PAGE> 54
-47-
debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
<PAGE> 55
-48-
Section 6.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, 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 or trusts hereunder,
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 hereunder.
The Trustee shall have a claim prior to the Securities as to
all property and funds held by it hereunder for any amounts owing it or any
predecessor Trustee pursuant to this Section 6.07, except to funds held in trust
for the benefit of the Holders of any Securities.
Section 6.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $100,000,000. If such Person
publishes reports of
<PAGE> 56
-49-
condition at least annually, pursuant to law or to the requirements of
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any
<PAGE> 57
-50-
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security 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 the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. It
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders
<PAGE> 58
-51-
of Securities of such series in the manner provided in Section 1.06. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
as co-trustees of the same trust and that each such Trustee shall be trustee of
a trust or trusts
<PAGE> 59
-52-
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
<PAGE> 60
-53-
Section 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee. to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder wherever reference in
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a
<PAGE> 61
-54-
party, or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticatinq
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
<PAGE> 62
-55-
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
.............................,
As Trustee
By............................,
As Authenticating Agent
By............................,
Authorized Officer
ARTICLE SEVEN
Holders, Lists and Reports by Trustee and Company
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, either (i) not later than ____________ and
_____________ in each year in the case of Original Issue Discount Securities of
any series which by their terms bear interest only after maturity, or (ii) not
more than 15 days after each Regular Record Date in the case of Securities of
any other series, a list of each series of Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
each such series of Securities as of the preceding ____________ or _________ or
Regular Record Date, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
<PAGE> 63
-56-
Section 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.01 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights Of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent or either of then shall be hold accountable by reason of
any disclosure or information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 7.03. Reports by Trustee.
(a) The Trustee shall within 60 days of May 15 of each year,
commencing may 15, 1991, and at such other times as may be required by the Trust
Indenture Act, transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed an any stock
exchange.
Section 7.04. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed
<PAGE> 64
-57-
with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a Person,
shall be organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of the principal of and any
premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
any Subsidiary as a result of such transaction as having been incurred
by the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
<PAGE> 65
-58-
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lion, security interest or
other encumbrance which would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) all indebtedness secured
thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Section 8.02. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or 'more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
<PAGE> 66
-59-
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders or all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that much covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to change, or to add any additional, Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable an to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to or change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Security
with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
<PAGE> 67
-60-
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (9) shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
Section 9.02. Supplemental Indentures with consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or (unless otherwise specified as contemplated
by Section 3.01) the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of
an original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture
<PAGE> 68
-61-
or certain defaults hereunder and their consequences) provided for in
this indenture, or
(3) modify any of the provisions of this Section, Section 5.13
or Section 10.06, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 10.06 or the deletion of this proviso, in accordance with
the requirements of Sections 6.11(b) and 9.01(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, an Opinion of counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of
<PAGE> 69
-62-
Securities theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of and
any premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 10.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at
<PAGE> 70
-63-
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 10.03. Money for securities Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be hold as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying
<PAGE> 71
-64-
Agent and (ii) during the continuance of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any payment
in respect of the Securities of that series, and upon the written request of the
Trustee, forthwith pay to the Trustee all sums hold in trust by such Paying
Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 10.04. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture
<PAGE> 72
-65-
(without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
Section 10.05. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence and rights (charter and statutory); provided, however, that the
Company shall not be required to preserve any such right if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company or that the loss thereof would not materially and
adversely affect the Company's ability to perform its obligations under this
Indenture.
Section 10.06. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in any covenant specified with
respect to any series of Securities as contemplated by Section 3.01 if before
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
Section 10.07. Calculation of Original Issue Discount; Calculation of Foreign
Currency Equivalents; and Certain Information Concerning Tax
Reporting.
As soon as practicable after the issuance of any Original
Issue Discount Security, the Company shall furnish to the Trustee an Officers'
Certificate setting forth (i) the amount of the original issue discount an such
Security expressed as a U.S. dollar amount per $1,000 of principal amount of
such Security, (ii) the yield to maturity for such Security and (iii) a table of
the amounts that would be due and payable upon a declaration of acceleration of
the Maturity of such Security pursuant to Section 5.02 for each day from the
date of
<PAGE> 73
-66-
original issuance of such Security to the Stated Maturity of such Security.
As soon an practicable after the issuance of any Security
denominated in any currency or currencies, including composite currencies, other
than U.S. dollars, the Company shall furnish to the Trustee an Officers'
Certificate specifying the U.S. dollar equivalent of the principal amount of
such Security as of the date of original issuance of such Security (or, in the
case of an Original Issue Discount Security, the U.S. dollar equivalent on the
date of original issuance of such Security of the principal amount thereof that
would be due and payable as of the date of original issuance of such Security
upon a declaration of acceleration of the Maturity thereof pursuant to Section
5.02 as of such date).
The Company covenants to indemnify the Trustee for, and to
hold it harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on its part arising out of or in connection with
actions taken or omitted to be taken by the Trustee in reliance upon any
Officers' Certificate furnished pursuant to this Section.
On or before December 15 of each year during which any
Securities are Outstanding, the Company shall furnish to the Trustee such
information as may be reasonably requested by the Trustee in order that the
Trustee may prepare the information which it is required to report for such year
on Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Internal Revenue Code of 1986, as amended. Such information shall include the
amount of original issue discount includable in income for each $1,000 of
principal amount of Original Issue Discount Securities outstanding during such
year.
ARTICLE ELEVEN
Redemption of Securities
Section 11.01. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
<PAGE> 74
-67-
Section 11.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
Section 11.03. Selection by Trustee of Securities To Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a specified tenor
are to be redeemed), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities
<PAGE> 75
-68-
redeemed or to be redeemed only in part, to the portion of the principal amount
of such securities which has been or is to be redeemed.
Section 11.04. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state;
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable.
Section 11.05. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued inter-
<PAGE> 76
-69-
est on, all the Securities which are to be redeemed on that date.
Section 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon Surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.01, installments of interest
whose Stated Maturity in on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered an such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
<PAGE> 77
-70-
ARTICLE TWELVE
Sinking Funds
Section 12.01. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to an an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 12.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will de-
<PAGE> 78
-71-
liver to the Trustee an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which in to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 12.02 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 11.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.06 and 11.07.
ARTICLE THIRTEEN
DEFEASANCE
Section 13.01. Applicability of Article.
If pursuant to Section 3.01 provision is made for either or
both of (a) defeasance of the securities of a series under Section 1302(a) and
(b) covenant defeasance of the Securities of a series under Section 13.02(b),
then the provisions of such Section or Sections, as the case may be, together
with other provisions of this Article Thirteen, shall be applicable to the
Securities of such series, and the Company may at its option by Board
Resolution, at any time, with respect to the Securities of such series, elect to
have either Section 13.02(a) (if applicable) or Section 13.02(b) (if applicable)
be applied to the Outstanding Securities of such series upon compliance with the
conditions set forth in this Article Thirteen.
Section 13.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations.
At the Company's option, written notice of which shall be
provided to the Trustee by the Company, either (a) the Company shall be deemed
to have been Discharged (as defined below) from its obligations with respect to
Securities of any series after the applicable conditions set forth below have
been satisfied or (b) the Company shall cease to be under any obli-
<PAGE> 79
-72-
gation to comply with any term, provision or condition set forth in Clause (3)
of Section 8.01, or if so specified pursuant to Section 3.01, any other covenant
added for the benefit of such series pursuant to Section 3.01 and the occurrence
of an event specified in Section 5.01(4) (with respect to Clause (3) of Section
8.01) or an event specified in Section 5.01(5) (and any other Event of Default
applicable to such Securities that is determined pursuant to Section 3.01 to be
subject to this provision) shall not be deemed to be an Event of Default with
respect to the Outstanding Securities of such series at any time after the
applicable conditions set forth below have been satisfied:
(1) the company shall have deposited or caused to be deposited
with the Trustee as trust funds in trust and dedicated solely to, the benefit of
the Holders of the Securities of such series (i) money in an amount, or U.S.
Government Obligations (as defined below) that through the payment of interest
and principal in respect thereof in accordance with their terms will provide,
not later than the due date of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, without reinvestment, in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge
principal of and premium, if any, and interest on, the Outstanding Securities of
such series on the Maturity of such principal, premium, if any, or interest;
before such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in accordance
with Article Eleven, which shall be given effect in applying the foregoing;
(2) no Event of Default or event which with notice or lapse of
tine or both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as subsections 5.01(6) and (7) are concerned, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that the condition in this condition shall not be deemed
satisfied until the expiration of such period);
(3) such defeasance or covenant defeasance shall not result in
the trust arising from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940, as
amended;
<PAGE> 80
-73-
(4) such dereasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, any agreement or
instrument to which the Company is a party or by which it is bound if such
breach, violation or default would affect the validity of such defeasance or
covenant defeasance;
(5) in the case of an election under Section 1302(a), the
Company shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has been
a change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at the
same time an would have been the case if such defeasance had not occurred;
(6) in the case of an election under Section 13.02(b), the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the amounts, in
the same manner and at the same time as would have been the case if such
covenant defeasance had not occurred;
(7) such defeasance or covenant defeasance shall be affected
in compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 3.01; and
(8) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided relating to defeasance of Securities under
this Indenture have been complied with.
"Discharged" means that the company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Securities of such series and to have satisfied all the obligations
under this Indenture relating to the Securities of such series (and the Trustee,
upon the request of and at the expense of the Company, shall execute
<PAGE> 81
-74-
proper instruments acknowledging the same), except (A) the rights of Holders of
Securities of such series to receive, from the trust fund described in clause
(1) above, payment of the principal of (and premium, if any) and interest on
such Securities when such payments are due, (B) the Company's obligations with
respect to the securities of such series under Sections 3.04, 3.05, 3.06 and
10.02, (C) this Article Thirteen and (D) the obligations of the Company to the
Trustee under Section 6.07, and the obligations of the Trustee under Section
4.02 and the last paragraph of Section 10.03.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, that, in either
case under clauses (i) or (ii), are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) or the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any U.S. Government Obligation held by
such custodian for the account or the holder of a depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
Section 13.03. Deposited Moneys and U.S. Government Obligations To be Held in
Trust.
Subject to the provisions of the last paragraph of Section
10.03, all moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 13.02 in respect of Securities of a series shall be held in
trust and applied by it, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(but not including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities, of all sums due and to become
due thereon for principal (and premium, if any) and interest, if any, but such
money need not be segregated from other funds except to the extent required by
law.
<PAGE> 82
-75-
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to Section 13.02 or the principal and
interest received in respect thereof.
Section 13.04. Repayment to Company.
Notwithstanding anything in this Indenture to the contrary,
the Trustee and the Paying Agent shall promptly pay or return to the Company
upon Company Request any moneys or U.S. Government Obligations held by it
pursuant to Section 13.02 which, in the opinion of a nationally recognized firm
of independent accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would be
then required to be deposited to effect an equivalent defeasance.
The provisions of the last paragraph of Section 10.03 shall
apply to any money held by the Trustee or any Paying Agent under this Article
that remains unclaimed for two years after the Maturity of any Securities for
which money or U.S. Government Obligations have been deposited pursuant to
Section 13.02.
Section 13.05. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 13.02(a) or 13.02(b) by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Trustee or the Paying Agent, as
the case may be, shall at the Company's request return to the Company all such
money held by the Trustee or the Paying Agent and the Company's obligations
under the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Thirteen. If notwithstanding the
Trustee's and the Paying Agent's obligation to do so pursuant to the preceding
sentence of this Section, the money held by the Trustee or the Paying Agent is
not returned to the Company, such revival and reinstatement shall terminate at
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 13.02(a) or 13.02(b); and provided, further, that,
notwithstanding the Trustee's and the Paying Agent's obligation to do so, the
money hold by the Trustee or the Paying Agent in not returned to the Company, if
the Company makes any payment of principal of (and premium, if any) or interest
on any such Security following the reinstatement of
<PAGE> 83
-76-
its obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
ARTICLE FOURTEEN
IMMUNITY
Section 14.01. Personal Immunity of Incorporators, Stockholders, Directors and
Officers.
No recourse for the payment of the principal of or interest on
any Security, and no recourse under or upon any obligation, covenant or
agreement contained in this Indenture or in any indenture supplemental hereto,
or in any Security, or because of any indebtedness evidenced thereby, shall be
had against any incorporator, or against any past, present or future
stockholder, officer or director, an such, of the Company or any successor
corporation, either directly or through the Company or any successor
corporation, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the holders thereof and as part of the
consideration for the issue of the Securities. Each and every holder of the
Securities, by receiving and holding the same, agrees to the provisions of this
Section 14.01 and waives and releases any and all such recourse, claim and
liability.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
<PAGE> 84
-77-
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ATLAS AIR,INC.
By:
--------------------------------------
Attest:
- ---------------------
STATE STREET BANK AND TRUST
COMPANY
By:
--------------------------------------
Attest:
- -----------------
<PAGE> 85
-78-
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of ________________, _____, before me
personally came __________________________, to me known, who, being by me duly
sworn, did depose and say that he is ___________ of Atlas Air, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
------------------
<PAGE> 86
-79-
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of _______________, _____, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he is ____________________ of State Street Bank and Trust Company, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
-----------------------
<PAGE> 87
-80-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
indenture to be duly executed, all as of the date first written above.
Atlas Air, Inc.
as Issuer
By:
-------------------------------
Name:
Title:
State Street Bank and Trust Company
as Trustee
By:
-------------------------------
Name:
Title:
<PAGE> 1
LETTERHEAD OF CAHILL GORDON & REINDEL EXHIBIT 5.1
February 4, 1999
Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
Re: Registration of Common Stock
Ladies and Gentlemen:
We have acted as counsel for Atlas Air, Inc., a Delaware
corporation ("Atlas"), in connection with the filing by Atlas of its
Registration Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, which registration statement relates to up to
$650,000,000 in aggregate principal amount of certain shares of Common Stock of
Atlas, $0.01 par value per share (the "Common Stock").
In so acting, we have examined and relied upon the accuracy of
original, certified, conformed or photographic copies of such records,
agreements, certificates and other documents as we have deemed necessary or
appropriate to enable us to render the opinions set forth below. In all such
examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies and, as to certificates of
public officials and officers of Atlas, we have assumed the same to have been
properly given and to be accurate.
Based upon the foregoing, we are of the opinion that the
Common Stock, will be validly issued, fully paid and nonassessable when, as and
if (i) the Registration Statement shall have become effective pursuant to the
provisions of the Act, (ii) appropriate corpo-
<PAGE> 2
-2-
rate action shall have been taken to authorize the issuance and sale of such
Common Stock, (iii) a Prospectus Supplement or Prospectus Supplements with
respect to the shares of Common Stock shall have been filed (or transmitted for
filing) with the Commission pursuant to Rule 424(b) of the Act and any exhibits
necessary under the rules and regulations of the Commission shall have been
filed with the Commission in an amendment to the Registration Statement or
incorporated by reference into the Registration Statement pursuant to a Current
Report on Form 8-K of the Company filed with the Commission, (iv) any legally
required consents, approvals, authorizations and other orders of the Commission
and any other regulatory authorities shall have been obtained and (v)
appropriate certificates representing the shares of Common Stock are duly
executed, countersigned by the Company's transfer agent/registrar, registered
and delivered against payment of the agreed consideration therefore in
accordance with the applicable Agreement.
The opinions expressed herein are limited in all respects to
the laws of the State of New York, the corporate laws of the State of Delaware
and the federal laws of the United States.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Validity of
the Common Stock" in the prospectus relating to the Common Stock that
constitutes a part of the Registration Statement.
Very truly yours,
/s/ CAHILL GORDON & REINDEL
<PAGE> 1
LETTERHEAD OF CAHILL GORDON & REINDEL EXHIBIT 5.2
February 4, 1999
Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
Re: Registration of Debt Securities
Ladies and Gentlemen:
We have acted as counsel for Atlas Air, Inc., a Delaware
corporation ("Atlas"), in connection with the filing by Atlas of its
Registration Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, which registration statement relates to up to
$650,000,000 in aggregate principal amount of certain debt securities of Atlas
(the "Debt Securities"). The Debt Securities are to be issued by Atlas in one or
more series pursuant to an Indenture to be entered into between Atlas and State
Street Bank and Trust Company (the "Trustee"), a form of which has been filed as
an exhibit to the Registration Statement.
In so acting, we have examined and relied upon the accuracy of
original, certified, conformed or photographic copies of such records,
agreements, certificates and other documents as we have deemed necessary or
appropriate to enable us to render the opinions set forth below. In all such
examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies and, as to certificates of
public officials and officers of Atlas, we have assumed the same to have been
properly given and to be accurate.
<PAGE> 2
-2-
Based upon the foregoing, we are of the opinion that the Debt
Securities, when the final terms and provisions thereof have been duly
established and when duly executed on behalf of Atlas, authenticated by the
Trustee under the Indenture and sold by Atlas, will be validly issued, will
constitute valid and binding obligations of Atlas in accordance with their terms
and will be entitled to the benefits of the Indenture in accordance with their
terms and the terms of the Indenture.
The opinions set forth above are subject, as to enforcement,
to the effect of (i) any bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the rights and remedies of creditors generally,
(ii) general principles of equity (whether applied by a court of law or equity),
and (iii) requirements that a claim with respect to any Debt Securities
denominated other than in United States dollars (or a foreign currency or
composite currency judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law.
The opinions expressed herein are limited in all respects to
the laws of the State of New York, the corporate laws of the State of Delaware
and the federal laws of the United States.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Validity of
the Debt Securities" in the prospectus relating to the Debt Securities that
constitutes a part of the Registration Statement.
Very truly yours,
/s/ CAHILL GORDON & REINDEL
<PAGE> 1
LETTERHEAD OF CAHILL GORDON & REINDEL EXHIBIT 5.3
February 4, 1999
Atlas Air, Inc.
538 Commons Drive
Golden, Colorado 80401
Re: Registration of Pass Through Certificates
Ladies and Gentlemen:
We have acted as counsel for Atlas Air, Inc., a Delaware
corporation ("Atlas"), in connection with the filing by Atlas of its
Registration Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, which registration statement relates to up to
$650,000,000 in aggregate principal amount of Pass Through Certificates of Atlas
(the "Pass Through Certificates"). The Pass Through Certificates will be issued
pursuant to the provisions of the Pass Through Trust Agreement to be entered
into between Atlas and Wilmington Trust Company, as Pass Through Trustee (the
"Pass Through Trustee"), a form which has been filed as an exhibit to the
Registration Statement (the "Pass Through Agreement"), as supplemented by a
separate Series Supplement for each series of Pass Through Certificates (each, a
"Series Supplement").
In so acting, we have examined and relied upon the accuracy of
original, certified, conformed or photographic copies of such records,
agreements, certificates and other documents as we have deemed necessary or
appropriate to enable us to render the opinions set forth below. In all such
examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies and, as to certificates of
public officials and
<PAGE> 2
-2-
officers of Atlas, we have assumed the same to have been properly given and to
be accurate.
Based upon the foregoing, we are of the opinion that, assuming
(i) the due authorization, execution and delivery of the Pass Through Agreement
and each applicable Series Supplement by each of the parties thereto, (ii) the
due authorization, execution, issue, delivery and authentication by the Pass
Through Trustee of the Pass Through Certificates to be issued under the Pass
Through Agreement and each applicable Series Supplement, (A) the Pass Through
Agreement constitutes, and each applicable Series Supplement, when duly executed
and delivered, will constitute, a valid and binding agreement of each of the
parties thereto, and (B) the Pass Through Certificates, when duly executed,
delivered and authenticated by the Pass Through Trustee in accordance with the
terms of the Pass Through Agreement and each applicable Series Supplement and
sold in accordance with the related purchase agreement or underwriting agreement
between Atlas and the purchasers or underwriters, as the case may be, named
therein, will be validly issued, will constitute valid and binding obligations
of the Pass Through Trustee in accordance with their terms and will be entitled
to the benefits of the Pass Through Agreement and each applicable Series
Supplement in accordance with their terms and the terms of the Pass Through
Agreement and such Series Supplement.
The opinions set forth above are subject, as to enforcement,
to the effect of (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights and remedies of creditors generally and (ii)
general principles of equity (whether applied by a court of law or equity).
The opinions expressed herein are limited in all respects to
the laws of the State of New York, the corporate laws of the State of Delaware
and the federal laws of the United States.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us under the caption "Validity
of the Certificates" and "Certain United States Federal Income Tax Consequences"
in the prospectus relating to the Pass Through Certificates that constitutes a
part of the Registration Statement.
Very truly yours,
/s/ CAHILL GORDON & REINDEL
<PAGE> 1
EXHIBIT 23.1
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 reports dated
February 13, 1998 included in Atlas Air, Inc.'s Form 10-K for the year ended
December 31, 1997 and to all references to our firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
February 4, 1999
Denver, Colorado
<PAGE> 1
EXHIBIT 25.1
Registration No.
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) ____
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(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 of incorporation) (I.R.S. employer identification no.)
538 Commons Drive
Golden, Colorado 80401
(Address of principal executive offices) (Zip Code)
9 3/8% Senior Notes due 2006
(Title of the 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.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(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
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 4th day
of February, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patricia A. Evans By: /s/ Emmett R. Harmon
------------------------ ---------------------------
Assistant Secretary Name: Emmett R. Harmon
Title: Vice President
2
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is WILMINGTON
TRUST COMPANY whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains
and operates branch offices in the City of Newark, New Castle
County, Delaware, the Town of Newport, New Castle County, Delaware,
at Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate
branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of
Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time
by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
to appoint such officers and agents as the business of the
<PAGE> 5
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of
debt, to receive deposits of money, or securities for money,
to buy gold and silver bullion and foreign coins, to buy and
sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises
incident to a corporation which are proper or necessary for
the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
2
<PAGE> 6
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual
3
<PAGE> 7
owners thereof, including the right to vote thereon; to
invest and deal in and with any of the moneys of the
Corporation upon such securities and in such manner as it
may think fit and proper, and from time to time to vary or
realize such investments; to issue bonds and secure the same
by pledges or deeds of trust or mortgages of or upon the
whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when
the Board of Directors shall determine, and in the promotion
of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or
interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien,
and to lease, sell, exchange, transfer, or in any manner
whatever dispose of property, real, personal or mixed,
wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
4
<PAGE> 8
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or inference
from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes
and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board
of Directors each of said series to be distinctly designated. All
shares of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time
outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article FOURTH, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by
resolution or resolutions adopted prior to the issuance of any
shares of a particular series of Preferred Stock, the voting powers
and the designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and restrictions
of such series, including, but without limiting the generality of
the foregoing, the following:
(1) The distinctive designation of, and the number of shares
of Preferred Stock which shall constitute such series, which
number may be increased (except where otherwise provided by
the Board of Directors) or decreased (but not below the
number of shares thereof then outstanding) from time to time
by like action of the Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of
5
<PAGE> 9
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of any series
of the same or any other class or classes of stock of the
Corporation and the terms and conditions of such conversion
or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions
on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such series
of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of sums
as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed in
accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to
time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to
6
<PAGE> 10
receive all of the remaining assets of the Corporation,
tangible and intangible, of whatever kind available for
distribution to stockholders ratably in proportion to the
number of shares of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b) of
this Article FOURTH, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held on
all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or series,
or bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons,
firms, corporations or associations, whether such holders or others,
and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case,
be as fixed from time to time by the Board of Directors in the
resolution or resolutions adopted pursuant to authority granted in
section (b) of this Article FOURTH and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be
required for the issuance by the Board of Directors of any other
series of Preferred Stock whether or not the powers, preferences and
rights of such other series shall be fixed by the Board of Directors
as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in the resolution
or resolutions as to any series of Preferred Stock adopted pursuant
to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be
therein fixed) of the outstanding shares of such series voting
thereon shall be required for the issuance of any or all other
series of Preferred Stock.
7
<PAGE> 11
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than five
nor more than twenty-five as fixed from time to time by vote of a
majority of the whole Board, provided, however, that the number of
directors shall not be reduced so as to shorten the term of any
director at the time in office, and provided further, that the
number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office
for a term expiring at the next succeeding annual meeting, directors
of the second class shall be elected to hold office for a term
expiring at the second succeeding annual meeting and directors of
the third class shall be elected to hold office for a term expiring
at the third succeeding annual meeting. Any vacancies in the Board
of Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by the
Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen
shall hold office until the next annual election of directors. At
such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for
which such director shall have been chosen and until his successor
shall be elected and qualified. No decrease in the number of
directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the By-Laws of the Corporation),
any director or the entire Board of Directors of the
8
<PAGE> 12
Corporation may be removed at any time without cause, but only by
the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called
for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations which
are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be
taken without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from time to
time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
9
<PAGE> 13
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority
of the whole Board, may designate any of their number to constitute
an Executive Committee, which Committee, to the extent provided in
said resolution, or in the By-Laws of the Company, shall have and
may exercise all of the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and shall
have power to authorize the seal of the Corporation to be affixed to
all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the
world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation
by a vote of the majority of the entire Board. The stockholders may
make, alter or repeal any By-Law whether or not adopted by them,
provided however, that any such additional By-Laws, alterations or
repeal may be adopted only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the
State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be
from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair
market value of $1,000,000 or more, or
10
<PAGE> 14
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E) of
paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation of By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any
Subsidiary) who or which as of the record date for the determination
of stockholders entitled to notice of and to vote on
11
<PAGE> 15
such business combination, or immediately prior to the consummation
of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
12
<PAGE> 16
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article FIFTEENTH on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this Charter
or Act of Incorporation by the By-Laws), the affirmative vote of the
holders of at least two-thirds of the outstanding shares of the
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class)
shall be required to amend, alter or repeal any provision of
Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter
or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable
to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director, except to the extent such
exemption from liability or limitation thereof is not permitted
under the Delaware General Corporation Laws as the same exists or
may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
13
<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE> 19
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of Directors,
although less than a quorum, shall have the right to elect the successor who
shall hold office for the remainder of the full term of the class of directors
in which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors from its
own members and who
2
<PAGE> 20
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers
of the Board of Directors when it is not in session to transact all business for
and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company, and
shall direct the disposal of the same, in accordance with such rules and
regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE> 21
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more
than thirteen members who shall be selected by the Board of Directors, a
majority of whom shall be members of the Board of Directors and who shall hold
office during the pleasure of the Board.
(B) The Trust Committee shall have general supervision
over the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members or at the call of its chairman. A
majority of its members shall be necessary to constitute a quorum for the
transaction of business.
(D) Minutes of each meeting of the Trust Committee
shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own members,
none of whom shall be an officer of the Company, and shall hold office at the
pleasure of the Board.
(B) The Audit Committee shall have general supervision
over the Audit Division in all matters however subject to the approval of the
Board of Directors; it shall consider all matters brought to its attention by
the officer in charge of the Audit Division, review all reports of examination
of the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper for the
transaction of its business, and a majority of its Committee shall constitute a
quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE> 22
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise
upon all matters of policy concerning the Company brought to its attention by
the management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee, the Chairman
of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to attend
all directors meetings and participate in the discussion of all matters brought
to the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of
any Committee created under Article III of the By-Laws of this Company, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time confer
and direct. He shall also exercise such powers and perform such duties as may
from time to time be agreed upon between himself and the President of the
Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE> 23
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE> 24
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller and
such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the Auditor and
such duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices, subject
to the direction of the Board of Directors, the Executive Committee, Chairman of
the Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of
the Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders entitled
to notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE> 25
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words "Wilmington
Trust Company" within the inner circle the words
"Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE> 26
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days after a
written claim therefor has been received by the Corporation the claimant may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses
9
<PAGE> 27
under applicable law.
(D) The rights conferred on any person by this Article
X shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
10
<PAGE> 28
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 4, 1999 By: /s/ Emmett R. Harmon
----------------------
Name: Emmett R. Harmon
Title: Vice President
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks
with state publication requirements. It has not been approved by any
state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------------- ------------------
Name of Bank City
in the State of DELAWARE , at the close of business on September 30, 1998.
-------------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins ................ 180,755
Interest-bearing balances .......................................... 0
Held-to-maturity securities .................................................... 148,529
Available-for-sale securities .................................................. 1,216,482
Federal funds sold and securities purchased under agreements to resell ......... 203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income ........................... 3,951,771
LESS: Allowance for loan and lease losses ......................... 64,835
LESS: Allocated transfer risk reserve ............................. 0
Loans and leases, net of unearned income, allowance, and reserve ... 3,886,936
Assets held in trading accounts ................................................ 0
Premises and fixed assets (including capitalized leases) ....................... 137,819
Other real estate owned ........................................................ 1,847
Investments in unconsolidated subsidiaries and associated companies ............ 997
Customers' liability to this bank on acceptances outstanding ................... 0
Intangible assets .............................................................. 3,105
Other assets ................................................................... 82,400
Total assets ................................................................... 5,862,370
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 30
<TABLE>
<S> <C> <C>
LIABILITIES
Deposits:
In domestic offices ............................................................ 4,338,785
Noninterest-bearing ................................................ 792,528
Interest-bearing ................................................... 3,546,257
Federal funds purchased and Securities sold under agreements to repurchase ..... 249,670
Demand notes issued to the U.S. Treasury ....................................... 74,347
Trading liabilities (from Schedule RC-D) ....................................... 0
Other borrowed money: .......................................................... ///////
With original maturity of one year or less ......................... 576,507
With original maturity of more than one year ....................... 43,000
Bank's liability on acceptances executed and outstanding ....................... 0
Subordinated notes and debentures .............................................. 0
Other liabilities (from Schedule RC-G) ......................................... 104,687
Total liabilities .............................................................. 5,386,996
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................................. 0
Common Stock ................................................................... 500
Surplus (exclude all surplus related to preferred stock) ....................... 62,118
Undivided profits and capital reserves ......................................... 399,222
Net unrealized holding gains (losses) on available-for-sale securities ......... 13,534
Total equity capital ........................................................... 475,374
Total liabilities, limited-life preferred stock, and equity capital ............ 5,862,370
</TABLE>
2
<PAGE> 1
EXHIBIT 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF l939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
|_| CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(State of incorporation if (I.R.S. Employer
not a national bank Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Executive Vice President and General Counsel,
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(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 No.)
538 Commons Drive, Golden, Colorado 80401
(Address of principal executive offices) (Zip Code)
Pass Through Certificates and Debt Securities
(Title of the indenture securities)
<PAGE> 2
Item l. 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:
Department of Banking and Insurance of
The Commonwealth of Massachusetts
100 Cambridge Street
Boston, Massachusetts
Board of Governors of the Federal Reserve System
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers:
The trustee is so authorized.
Item 2. Affiliations with obligor. If the obligor is an affiliate of
the trustee, describe each such affiliation.
None with respect to the trustee or its parent, State Street
Corporation.
Item l6. List of exhibits. List below all exhibits filed as a part of
this statement of eligibility and qualification.
l. A copy of the Articles of Association of the trustee as now
in effect.
A copy of the Articles of Association of the trustee, as
now in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1)
filed with Registration Statement of Morse Shoe, Inc. (File
No. 22-17940) and is incorporated herein by reference
thereto.
2. A copy of the Certificate of Authority of the trustee to do
Business.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities
- 2 -
<PAGE> 3
and Exchange Commission as Exhibit 2 to Amendment No. 1 to
the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
3. A copy of the Certification of Fiduciary Powers of the
Trustee.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
4. A copy of the By-laws of the trustee as now in effect.
A copy of the By-Laws of the trustee, as now in effect, is
on file with the Securities and Exchange Commission as
Exhibit 4 to the Statement of Eligibility and Qualification
of Trustee (Form T-1) filed with Registration Statement of
Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
5. A consent of the trustee required by Section 32l(b) of the
Act is annexed hereto as Exhibit 5 and made a part hereof.
6. A copy of the latest Consolidated Reports of Condition of
the trustee, published pursuant to law or the requirements
of its supervising or examining authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 6 and made a part hereof.
- 3 -
<PAGE> 4
NOTES
Inasmuch as this Form T-l is filed prior to the ascertainment
by the trustee of all facts on which to base its answer to Item 2, the answer to
said Item is based upon incomplete information. Said Item may, however, be
considered correct unless amended by an amendment to this Form T-l.
- 4 -
<PAGE> 5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
l939, the trustee, State Street Bank and Trust Company, a Massachusetts trust
company, has duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Hartford, and State of Connecticut, on the 3rd day of February, 1999.
STATE STREET BANK AND TRUST
COMPANY,
Trustee
By /s/ Steven Cimalore
Name: Steven Cimalore
Title: Vice President
- 5 -
<PAGE> 6
EXHIBIT 5
CONSENT OF THE TRUSTEE
REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
The undersigned, as Trustee under an Indenture entered into between
Atlas Air, Inc. and State Street Bank and Trust Company, Trustee, does hereby
consent that, pursuant to Section 321(b) of the Trust Indenture Act of 1939,
reports of examinations with respect to the undersigned by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST
COMPANY,
Trustee
By /s/ Steven Cimalore
Name: Steven Cimalore
Title: Vice President
Dated: February 3, 1999
<PAGE> 7
EXHIBIT 6
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business September 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act and in accordance
with a call made by the Commissioner of Banks under General Laws, Chapter 172,
Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................2,008,956
Interest-bearing balances ....................................................12,286,877
Securities .............................................................................9,654,241
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary ..........................................10,922,779
Loans and lease financing receivables:
Loans and leases, net of unearned income ...7,457,235
Allowance for loan and lease losses ...........82,851
Allocated transfer risk reserve ....................0
Loans and leases, net of unearned income and allowances .......................7,374,384
Assets held in trading accounts ........................................................1,898,804
Premises and fixed assets ................................................................513,372
Other real estate owned ......................................................................100
Investments in unconsolidated subsidiaries ...................................................484
Customers' liability to this bank on acceptances outstanding ..............................48,563
Intangible assets ........................................................................220,613
Other assets ...........................................................................1,333,210
----------
Total assets ..........................................................................46,262,383
==================
LIABILITIES
Deposits:
In domestic offices ...........................................................9,557,938
Noninterest-bearing ...............7,158,356
Interest-bearing ..................2,339,582
In foreign offices and Edge subsidiary .......................................18,451,054
Noninterest-bearing .................429,797
Interest-bearing .................18,021,257
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary ..........................................12,023,438
Demand notes issued to the U.S. Treasury .................................................451,424
Trading liabilities ...........................................................1,582,933
Other borrowed money .....................................................................323,782
Subordinated notes and debentures ..............................................................0
Bank's liability on acceptances executed and outstanding ..................................48,563
Other liabilities ......................................................................1,226,129
Total liabilities .....................................................................43,665,261
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................................................0
Common stock ..............................................................................29,931
Surplus ..................................................................................462,782
Undivided profits and capital reserves/Net unrealized holding gains (losses) ...........2,080,148
Net unrealized holding gains (losses) on available-for-sale securities............27,376
Cumulative foreign currency translation adjustments ......................................(3,115)
Total equity capital ...................................................................2,597,122
----------
Total liabilities and equity capital ..................................................46,262,383
===========
</TABLE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
