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EXHIBIT 1.2
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
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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 Designated
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 Mortgage 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 Mortgage 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
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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 Representatives 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 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
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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 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
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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 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;
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(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 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,
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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 would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole
(an "Atlas Material Adverse Effect");
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(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
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by the Company of any of the transactions contemplated thereby,
requires the consent or approval of, 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;
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(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 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
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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;
(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
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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 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 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
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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 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
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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 the Representatives and counsel for the
Underwriters for the qualification of such Designated Certificates for
sale under the laws of such jurisdictions as the Representatives may
reasonably designate, to maintain such qualifications in effect so long
as required for the distribution of such Designated Certificates and
will cooperate with the Representatives and counsel for the
Underwriters in 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;
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(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 and deliver to the Representatives, such Underwriters
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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.
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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
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:
18
-18-
(1) An opinion of Xxxxxx Xxxxxx & Xxxxxxx, 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 the Representatives 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, Executive Vice President-Strategic Planning, Vice President-Corporate
Finance, Chief Financial Officer or Vice President-Controller, 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 Delivery with the same
effect as if made at the Time of Delivery and the Company has complied
19
-19-
with all the agreements and satisfied all the conditions herein and in
each Note Purchase Agreement 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, Xxxxxx
Xxxxxxxx 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;
20
-20-
(d) Subsequent to the time of execution of the Pricing Agreement
relating to the Designated Certificates, 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 Xxxxx'x 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) 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
(g) 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
21
-21-
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, 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 filing 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 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
22
-22-
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 material 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
23
-23-
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.
(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
24
-24-
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 there may be legal defenses available to it
and/or
25
-25-
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
26
-26-
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 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
27
-27-
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 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
28
-28-
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 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,
29
-29-
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 thereupon 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
30
-30-
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 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
31
-31-
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: Chief Financial Officer (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, administrators, 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.
32
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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:
33
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 _________, 2001 (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.
34
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 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
35
SCHEDULE I
Face
Amount of
Designated
Certificates
to be
Underwriter Purchased*
----------- ------------
--------------------------- ....... ----------
--------------------------- ....... ----------
--------------------------- ....... ----------
Repeat column for each series of Designated Certificates.
----------
Total ....................
==========
36
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 include: (a) funds from time to time deposited
with the Trustee in accounts relating to such Trust; (b) leased aircraft notes
(the "Leased Aircraft Notes" or "Equipment Notes" issued as nonrecourse
obligations by the Owner Trustee in connection with the financing or
37
refinancing of the equity portion of the purchase price paid by such Owner
Trustee on behalf of Owner Trust, in respect of any Aircraft which may be leased
to the Company in a separate leveraged lease transaction hereto, or (c) owned
aircraft notes ("Owned Aircraft Notes" or "Equipment Notes") which may be issued
with recourse to the Company in connection with the financing of the equity
portion of the purchase price paid by the Company in respect of any Owned
Aircraft. 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 forms of the Operative Documents and Pass Through Documents
other than the Pass Through Agreement.
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
38
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;
39
(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 included 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;
40
(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;
(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 modifications should be made to the unaudited
condensed consolidated
41
statements of operations, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or included in the 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 to in Clause (B)
were 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
42
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, 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
43
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.
