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EXHIBIT 4.6
TRUST SUPPLEMENT No. 2000-1B
Dated as of January 28, 2000
between
WILMINGTON TRUST COMPANY
as Trustee,
and
ATLAS AIR INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of January 28, 2000
$44,741,000
Atlas Air Pass Through Trust 2000-1B
9.057% Atlas Air
Pass Through Certificates,
Series 2000-lB
This Trust Supplement No. 2000-1B (herein called the "Trust
Supplement") dated as of January 28, 2000 between Atlas Air, Inc., a Delaware
corporation (the "Company"), and Wilmington Trust Company (the "Trustee") to the
Pass Through Trust Agreement dated as of January 28, 2000, between the Company
and the Trustee (the "Basic Agreement").
W I T N E S S E T H:
WHEREAS, the Basic Agreement, unlimited as to the aggregate
principal amount of Certificates (unless otherwise specified herein, capitalized
terms used herein without definition having the respective meanings specified in
the Basic Agreement) which may be issued thereunder, has heretofore been
executed and delivered;
WHEREAS, the Company has obtained commitments from Boeing for
the delivery of certain Aircraft;
WHEREAS, the Company intends to finance the acquisition of
each such Aircraft either (i) through separate leveraged lease transactions, in
which case the Company will lease such Aircraft (collectively,
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the "Leased Aircraft"), or (ii) through separate secured loan transactions, in
which case the Company will own such Aircraft (collectively, the "Owned
Aircraft");
WHEREAS, in the case of each Leased Aircraft, each Owner
Trustee, acting on behalf of the corresponding Owner Participant, will issue
pursuant to an Indenture, on a non-recourse basis, Equipment Notes in order to
finance a portion of its purchase price of such Leased Aircraft;
WHEREAS, in the case of each Owned Aircraft, the Company will
issue pursuant to an Indenture, on a recourse basis, Equipment Notes to finance
all or a portion of the purchase price of such Owned Aircraft;
WHEREAS, the Trustee hereby declares the creation of this
Atlas Air Pass Through Trust 2000-1B (the "Applicable Trust") for the benefit of
the Applicable Certificateholders, and the initial Applicable Certificateholders
as the grantors of the Applicable Trust, by their respective acceptances of the
Applicable Certificates, join in the creation of the Applicable Trust with the
Trustee;
WHEREAS, all Certificates to be issued by the Applicable Trust
will evidence fractional undivided interests in the Applicable Trust and will
convey no rights, benefits or interests in respect of any property other than
the Trust Property, except for those Certificates to which an Escrow Receipt has
been affixed;
WHEREAS, the Escrow Agent, the Trustee and the Placement
Agents have contemporaneously herewith entered into an Escrow Agreement with the
Escrow Paying Agent pursuant to which the Placement Agents have delivered to the
Escrow Agent the proceeds from the sale of the Applicable Certificates and have
irrevocably instructed the Escrow Agent to withdraw and pay funds from such
proceeds upon request and proper certification by the Trustee to purchase
Equipment Notes as the Aircraft are delivered by Boeing under the Aircraft
Purchase Agreement from time to time prior to the Delivery Period Termination
Date;
WHEREAS, the Escrow Agent on behalf of the Applicable
Certificateholders has contemporaneously herewith entered into a Deposit
Agreement with the Depositary under which the Deposit referred to therein will
be made and from which it will withdraw funds to allow the Trustee to purchase
Equipment Notes from time to time prior to the Delivery Period Termination Date;
WHEREAS, pursuant to the terms and conditions of the Basic
Agreement as supplemented by this Trust Supplement (the "Agreement") and the
Note Purchase Agreement, upon or shortly following delivery of an Aircraft, the
Trustee on behalf of the Applicable Trust, using funds withdrawn under the
Escrow Agreement, shall purchase one or more Equipment Notes having the same
interest rate as, and final maturity date not later than the Final Regular
Distribution Date of, the Applicable Certificates issued hereunder and shall
hold such Equipment Notes in trust for the benefit of the Applicable
Certificateholders;
WHEREAS, all of the conditions and requirements necessary to
make this Trust Supplement, when duly executed and delivered, a valid, binding
and legal instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have
been in all respects duly authorized;
WHEREAS, upon the occurrence of a Registration Event, this
Trust Supplement is subject to the provisions of the Trust Indenture Act of
1939, as amended, and shall, to the extent applicable, be governed by such
provisions;
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NOW THEREFORE, in consideration of the premises herein, it is
agreed between the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. THE CERTIFICATES. There is hereby created a
series of Certificates to be issued under the Agreement to be distinguished and
known as "9.057% Atlas Air Initial Pass Through Certificates, Series 2000-lB"
(the "Initial Certificates"). The exchange certificates which may be issued and
offered in exchange for the Initial Certificates pursuant to the Registration
Rights Agreement shall be known as the "9.057% Atlas Air Exchange Pass Through
Certificates Series 2000-1B" (the "Exchange Certificates"). The Initial
Certificates and the Exchange Certificates hereinafter defined as the
"Applicable Certificates". Each Applicable Certificate represents a fractional
undivided interest in the Applicable Trust created hereby. The Applicable
Certificates shall be the only instruments evidencing a fractional undivided
interest in the Applicable Trust.
The terms and conditions applicable to the Applicable
Certificates are as follows:
(a) The aggregate principal amount of the Applicable
Certificates that shall be authenticated under the Agreement (except for
Applicable Certificates authenticated and delivered pursuant to Sections 3.03,
3.04, 3.05 and 3.06 of the Basic Agreement) is $44,741,000.
(b) The Regular Distribution Dates with respect to any payment
of Scheduled Payments means January 2 and July 2 of each year, commencing on
July 2, 2000, until payment of all of the Scheduled Payments to be made under
the Equipment Notes has been made.
(c) The Special Distribution Dates with respect to the
Applicable Certificates means any Business Day on which a Special Payment is to
be distributed pursuant to the Agreement.
(d) At the Escrow Agent's request under the Escrow Agreement,
the Trustee shall affix the corresponding Escrow Receipt to each Applicable
Certificate. In any event, any transfer or exchange of any Applicable
Certificate shall also effect a transfer or exchange of the related Escrow
Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Applicable Certificate shall be permitted unless the corresponding Escrow
Receipt is attached thereto and also is so transferred or exchanged. By
acceptance of any Applicable Certificate to which an Escrow Receipt is attached,
each Holder of such an Applicable Certificate acknowledges and accepts the
restrictions on transfer of the Escrow Receipt set forth herein and in the
Escrow Agreement.
(e) (i) The Applicable Certificates shall be in the form
attached hereto as Exhibit A. Any Person acquiring or accepting an Applicable
Certificate or an interest therein will, by such acquisition or acceptance, be
deemed to represent and warrant to and for the benefit of, among other persons,
each Owner Participant, the Company, the Placement Agents and the Trustee that
either (i) the assets of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or of a
plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code"), have not been used to purchase Applicable Certificates or an
interest therein or (ii) the purchase and holding of Applicable Certificates
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or an interest therein is exempt from the prohibited transaction restrictions of
ERISA and the Code pursuant to one or more prohibited transaction statutory or
administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry
Certificates and shall be subject to the conditions set forth in the Letter of
Representations between the Company and the Clearing Agency attached hereto as
Exhibit B.
(f) The Applicable Certificates are subject to the
Intercreditor Agreement, the Deposit Agreement and the Escrow Agreement.
(g) The Applicable Certificates will have the benefit of the
Liquidity Facility.
(h) The Responsible Party is the Company.
(i) The date referred to in clause (i) of the definition of
the term "PTC Event of Default" in the Basic Agreement is the Final Maturity
Date.
(j) The particular "sections of the Note Purchase Agreement",
for purposes of clause (3) of Section 7.07 of the Basic Agreement, are Section
8.1 (with respect to Owned Aircraft) and Section 9.1 (with respect to Leased
Aircraft) of each Participation Agreement.
(k) The Equipment Notes to be acquired and held in the
Applicable Trust, and the related Aircraft and Note Documents, are described in
the Note Purchase Agreement.
ARTICLE II
DEFINITIONS
Section 2.01. DEFINITIONS. For all purposes of the Basic
Agreement as supplemented by this Trust Supplement, the following capitalized
terms have the following meanings (any term used herein which is defined in both
this Trust Supplement and the Basic Agreement shall have the meaning assigned
thereto in this Trust Supplement for purposes of the Basic Agreement as
supplemented by this Trust Supplement):
Agent Members: has the meaning specified in Section 8.04 of
this Trust Supplement.
Agreement: has the meaning specified in the recitals hereto.
Aircraft: means each of the Aircraft or Substitute Aircraft in
respect of which a Participation Agreement is or is to be, as the case may be,
entered into in accordance with the Note Purchase Agreement.
Aircraft Purchase Agreement: has the meaning specified in the
Note Purchase Agreement.
Applicable Certificates: has the meaning specified in Section
1.01 of this Trust Supplement.
Applicable Certificateholder: means the Person in whose name
an Applicable Certificate is registered on the Register for the Applicable
Certificates.
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Applicable Delivery Date: has the meaning specified in Section
5.01(b) of this Trust Supplement.
Applicable Participation Agreement: has the meaning specified
in Section 5.01(b) of this Trust Supplement.
Applicable Trust: has the meaning specified in the recitals
hereto.
Basic Agreement: has the meaning specified in the first
paragraph of this Trust Supplement.
Boeing: means The Boeing Company.
Business Day: means any day other than a Saturday, a Sunday or
a day on which commercial banks are required or authorized to close in Denver,
Colorado, New York, New York, Salt Lake City, Utah or, so long as any Applicable
Certificate is Outstanding, the city and state in which the Trustee or any Loan
Trustee maintains its Corporate Trust Office or receives and disburses funds.
Cedel: means Clearstream Banking, societe anonyme.
Class D Certificateholder: has the meaning specified in
Section 4.01(b)(ii) of this Trust Supplement.
Company: has the meaning specified in the first paragraph of
this Trust Supplement.
Cut-Off Date: means the earlier of (a) the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
Delivery Notice: has the meaning specified in the Note
Purchase Agreement.
Delivery Period Termination Date: means December 31, 2000
(provided that, if a labor strike occurs at Boeing prior to December 31, 2000,
such date shall be extended by adding thereto the number of days that such
strike continues in effect).
Deposit: has the meaning specified in the Deposit Agreement.
Deposit Agreement: means the Deposit Agreement dated as of
January 28, 2000 relating to the Applicable Certificates between the Depositary
and the Escrow Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Depositary: means Westdeutsche Landesbank Girozentrale, a
German banking institution organized under the laws of the State of North
Rhine-Westphalia, acting through its New York branch.
Distribution Date: means any Regular Distribution Date or
Special Distribution Date as the context requires.
DTC: means The Depositary Trust Company, and any successor
entity to DTC as depositary for the Applicable Certificates.
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Xxxxxx Xxxxx: means, First Security Bank, National
Association, or any replacement or successor therefor appointed in accordance
with the Escrow Agreement.
Escrow Agreement: means the Escrow and Paying Agent Agreement
dated as of January 28, 2000 relating to the Applicable Certificates, among the
Escrow Agent, the Escrow Paying Agent, the Trustee and the Placement Agents, as
the same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Escrow Paying Agent: means the Person acting as paying agent
under the Escrow Agreement.
Escrow Receipt: means the receipt substantially in the form
annexed to the Escrow Agreement representing a fractional undivided interest in
the funds held in escrow thereunder.
Euroclear: means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as the operator of the Euroclear System.
Exchange Certificates: means the certificates substantially in
the form of Exhibit A attached hereto issued in exchange for the Initial
Certificates pursuant to the Registration Rights Agreement and authenticated
hereunder.
Exchange Offer Registration Statement: has the meaning
specified in the Registration Rights Agreement.
Final Maturity Date: means July 2, 2017.
Final Withdrawal: has the meaning specified in the Escrow
Agreement.
Final Withdrawal Date: has the meaning specified in the Escrow
Agreement.
Final Withdrawal Notice: has the meaning specified in Section
4.02 of this Trust Supplement.
Global Certificates: has the meaning specified in Section
8.01(c) of this Trust Supplement.
Global Exchange Certificate: has the meaning specified in
Section 8.01(e) of this Trust Supplement.
Indenture: means each of the separate trust indentures and
mortgages relating to the Aircraft, each as specified or described in a Delivery
Notice delivered pursuant to the Note Purchase Agreement or the related
Participation Agreement, in each case as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
Institutional Accredited Investor: means an institutional
investor that is an "accredited investor" within the meaning set forth in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act.
Intercreditor Agreement: means the Intercreditor Agreement
dated as of January 28, 2000, among the Trustee, the Other Trustees, the
Liquidity Provider, the Liquidity Providers relating to the Certificates issued
under each of the Other Agreements, and Wilmington Trust Company, as
Subordination Agent and as
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trustee thereunder, as amended, supplemented or otherwise modified from time to
time in accordance with its terms.
Investors: means the Placement Agents together with all
subsequent beneficial owners of the Applicable Certificates.
Lease: means, with respect to each Leased Aircraft, the lease
between an Owner Trustee, as the lessor, and the Company, as the lessee,
referred to in the related Indenture, as such lease may be amended, supplemented
or otherwise modified in accordance with its terms.
Leased Aircraft: has the meaning specified in the third
recital to this Trust Supplement.
Leased Aircraft Indenture: has the meaning specified in the
Note Purchase Agreement.
Liquidity Facility: means, initially, the Revolving Credit
Agreement dated as of January 28, 2000 relating to the Applicable Certificates,
between the Liquidity Provider and Wilmington Trust Company, as Subordination
Agent, as agent and trustee for the Applicable Trust, and, from and after the
replacement of such agreement pursuant to the Intercreditor Agreement, the
replacement liquidity facility therefor, in each case as amended, supplemented
or otherwise modified from time to time in accordance with their respective
terms.
Liquidity Provider: means Xxxxxx Xxxxxxx Capital Services
Inc., a Delaware corporation.
Non-U.S. Person: means a Person that is not a "U.S. Person,"
as defined in Regulation S.
Note Documents: means the Equipment Notes with respect to the
Applicable Certificates and, with respect to any such Equipment Note, (i) the
Indenture and the Participation Agreement relating to such Equipment Note, and
(ii) in the case of any Equipment Note related to a Leased Aircraft, the Lease
relating to such Leased Aircraft.
Note Purchase Agreement: means the Note Purchase Agreement
dated as of January 28, 2000 among the Trustee, the Other Trustees, the Company,
the Escrow Agent, the Escrow Paying Agent and the Subordination Agent, providing
for, among other things, the purchase of Equipment Notes by the Trustee on
behalf of the Trust, as the same may be amended, supplemented or otherwise
modified from time to time, in accordance with its terms.
Notice of Prepayment Withdrawal: has the meaning specified in
the Deposit Agreement.
Notice of Purchase Withdrawal: has the meaning specified in
the Deposit Agreement.
Offering Memorandum: means the offering memorandum dated
January 20, 2000 relating to the offering of the Initial Certificates.
Offshore Certificates Exchange Date: has the meaning specified
in Section 8.01(c) of this Trust Supplement.
Offshore Global Certificates: has the meaning specified in
Section 8.01(c) of this Trust Supplement.
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Offshore Physical Certificates: has the meaning specified in
Section 8.01(d) of this Trust Supplement.
Other Agreements: means (i) the Basic Agreement as
supplemented by Trust Supplement No. 2000-lA dated as of the date hereof
relating to Atlas Air Pass Through Trust 2000-lA; (ii) the Basic Agreement as
supplemented by Trust Supplement No. 2000-lC dated as of the date hereof
relating to Atlas Air Pass Through Trust 2000-1C; and (iii) if Class D
Certificates are issued, the Basic Agreement as supplemented by Trust Supplement
No. 2000-1D relating to Atlas Air Pass Through Trust 2000-1D.
Other Trustees: means the trustees under the Other Agreements,
and any successor or other trustee appointed as provided therein.
Other Trusts: means the Atlas Air Pass Through Trust 2000-lA
and the Atlas Air Pass Through Trust 2000-lC, each created on the date hereof,
and if Class D Certificates are issued, the Atlas Air Pass Through Trust
2000-1D.
Owned Aircraft: has the meaning specified in the third recital
to this Trust Supplement.
Owned Aircraft Indenture: has the meaning specified in the
Note Purchase Agreement.
Owner Participant: with respect to any Equipment Note relating
to a Leased Aircraft, means the "Owner Participant" as referred to in the
Indenture pursuant to which such Equipment Note is issued and any permitted
successor or assign of such Owner Participant; and "Owner Participants" at any
time of determination means all of the Owner Participants thus referred to in
the Indentures.
Owner Trustee: with respect to any Equipment Note relating to
a Leased Aircraft, means the "Owner Trustee", as referred to in the Indenture
pursuant to which such Equipment Note is issued, not in its individual capacity
but solely as trustee; and "Owner Trustees" means all of the Owner Trustees
party to any of the Indentures.
Owner Trustee's Purchase Agreement: means, with respect to any
Leased Aircraft, the agreement between the Company and the relevant Owner
Trustee pursuant to which, inter alia, the Company assigns to the Owner Trustee
certain rights of the Company under the aircraft purchase agreement with respect
to such Leased Aircraft.
Participation Agreement: means each Participation Agreement to
be entered into, or entered into (as the case may be), by the Trustee pursuant
to the Note Purchase Agreement, as the same may be amended, supplemented or
otherwise modified in accordance with its terms.
Permanent Offshore Global Certificate: has the meaning
specified in Section 8.01(c) of this Trust Supplement.
Physical Certificates: has the meaning specified in Section
8.01(d) of this Trust Supplement.
Placement Agents: means, collectively, Xxxxxx Xxxxxxx & Co.
Incorporated, Deutsche Bank Securities Inc. and Xxxxxxx Xxxxx Barney Inc.
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Placement Agreement: means the Placement Agreement dated
January 20, 2000 among the Placement Agents and the Company, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
Pool Balance: means, as of any date, (i) the original
aggregate face amount of the Applicable Certificates less (ii) the aggregate
amount of all payments made in respect of such Applicable Certificates or in
respect of the Deposit relating to the Applicable Trust other than payments made
in respect of interest or premium thereon or reimbursement of any costs or
expenses incurred in connection therewith. The Pool Balance as of any
Distribution Date shall be computed after giving effect to any special
distribution with respect to the unused Deposit, payment of principal of the
Equipment Notes or payment with respect to other Trust Property and the
distribution thereof to be made on that date.
Pool Factor: means, as of any Distribution Date, the quotient
(rounded to the seventh decimal place) computed by dividing (i) the Pool Balance
by (ii) the original aggregate face amount of the Applicable Certificates. The
Pool Factor as of any Distribution Date shall be computed after giving effect to
any special distribution with respect to the unused Deposit, payment of
principal of the Equipment Notes or payments with respect to other Trust
Property and the distribution thereof to be made on that date.
Prepayment Withdrawal Certificate: has the meaning specified
in the Escrow Agreement.
Private Placement Legend: has the meaning specified in Section
8.02(a) of this Trust Supplement.
QIB: means a qualified institutional buyer as defined in Rule
144A.
Registration Event: has the meaning set forth in the
Registration Rights Agreement.
Registration Rights Agreement: means the Registration Rights
Agreement dated January 28, 2000 among the Placement Agents, the Trustee, the
Other Trustees and the Company, as amended, supplemented or otherwise modified
from time to time in accordance with its terms.
Registration Statement: has the meaning set forth in the
Registration Rights Agreement.
Regulation S: means Regulation S under the Securities Act or
any successor regulation thereto.
Rule 144A: means Rule 144A under the Securities Act or any
successor rule thereto.
Scheduled Delivery Date: has the meaning specified in the Note
Purchase Agreement.
Securities Act: means the U.S. Securities Act of 1933, as
amended.
Shelf Registration Statement: has the meaning set forth in the
Registration Rights Agreement.
Special Payment: means any payment (other than a Scheduled
Payment) in respect of, or any proceeds of, any Equipment Note, Trust Indenture
Estate (as defined in each Leased Aircraft Indenture), or Collateral (as defined
in each Owned Aircraft Indenture) or any Special Redemption Premium.
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Special Redemption Premium: means the premium payable by the
Company pursuant to Section 3(a)(i) of the Note Purchase Agreement.
Substitute Aircraft: has the meaning specified in the Note
Purchase Agreement.
Temporary Offshore Global Certificate: has the meaning
specified in Section 8.01(c) of this Trust Supplement.
Triggering Event: has the meaning assigned to such term in the
Intercreditor Agreement.
Trust Property: means (i) subject to the Intercreditor
Agreement, the Equipment Notes held as the property of the Applicable Trust, all
monies at any time paid thereon and all monies due and to become due thereunder,
(ii) funds from time to time deposited in the Certificate Account and the
Special Payments Account and, subject to the Intercreditor Agreement, any
proceeds from the sale by the Trustee pursuant to Article VI of the Basic
Agreement of any Equipment Note and (iii) all rights of the Applicable Trust and
the Trustee, on behalf of the Applicable Trust, under the Intercreditor
Agreement, the Escrow Agreement, the Note Purchase Agreement and the Liquidity
Facility, including, without limitation, all rights to receive certain payments
thereunder, and all monies paid to the Trustee on behalf of the Applicable Trust
pursuant to the Intercreditor Agreement or the Liquidity Facility, provided that
rights with respect to the Deposit or under the Escrow Agreement, except for the
right to direct withdrawals for the purchase of Equipment Notes to be held
herein, will not constitute Trust Property.
Trust Supplement: has the meaning specified in the first
paragraph of this Trust Supplement.
U.S. Global Certificate: has the meaning specified in Section
8.01(b) of this Trust Supplement.
U.S. Physical Certificates: has the meaning specified in
Section 8.01(d) of this Trust Supplement.
ARTICLE III
STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. ADDITIONS TO ARTICLE IV OF THE BASIC AGREEMENT.
In addition to the provisions of Article IV of the Basic Agreement, the
following provisions shall apply to the Applicable Trust:
(a) Upon the payment of Special Redemption Premium to the
Trustee under the Note Purchase Agreement, the Trustee, upon receipt thereof,
shall immediately deposit the aggregate amount of such Special Redemption
Premium in the Special Payments Account;
(b) The distribution of amounts of Special Redemption Premium
as provided for in Section 4.02(b) of the Basic Agreement shall be on the
Special Distribution Date with respect to such Special Payment or as soon
thereafter as the Trustee has confirmed receipt of the related Special
Redemption Premium;
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(c) In the event of the payment of a Special Redemption
Premium by the Company to the Trustee under the Note Purchase Agreement, the
notice provided for in Section 4.02(c) of the Basic Agreement shall be mailed,
together with the notice by the Escrow Paying Agent under Section 2.06 of the
Escrow Agreement, not less than 15 days prior to the Special Distribution Date
for such amount, which Special Distribution Date shall be the Final Withdrawal
Date; and
(d) The last sentence of the first paragraph of Section
4.02(c) of the Basic Agreement shall apply equally if the amount of Special
Redemption Premium, if any, has not been calculated at the time the Trustee
mails notice of a Special Payment.
Section 3.02. STATEMENTS TO APPLICABLE CERTIFICATEHOLDERS. (a)
On each Distribution Date, the Trustee will include with each distribution to
Applicable Certificateholders of a Scheduled Payment or Special Payment, as the
case may be, a statement setting forth the information provided below (in the
case of a Special Payment, reflecting in part the information provided by the
Escrow Paying Agent under the Escrow Agreement). Such statement shall set forth
(per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v)
below) the following information:
(i) the aggregate amount of funds distributed on such
Distribution Date under the Agreement and under the
Escrow Agreement, indicating the amount allocable to
each source;
(ii) the amount of such distribution under the Agreement
allocable to principal and the amount allocable to
premium (including any premium paid with respect to
unused Deposits), if any;
(iii) the amount of such distribution under the Agreement
allocable to interest;
(iv) the amount of such distribution under the Escrow
Agreement allocable to interest;
(v) the amount of such distribution under the Escrow
Agreement allocable to unused Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the
name of a Clearing Agency, on the Record Date prior to each Distribution Date,
the Trustee will request from such Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agency's books as holding interests in the Applicable Certificates on
such Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was an
Applicable Certificateholder of record a statement containing the sum of the
amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and
(a)(v) above for such calendar year or, in the event such Person was an
Applicable Certificateholder of record during a portion of such calendar year,
for such portion of such year, and such other items as are readily available to
the Trustee and which an Applicable Certificateholder
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shall reasonably request as necessary for the purpose of such Applicable
Certificateholder's preparation of its federal income tax returns. Such
statement and such other items shall be prepared on the basis of information
supplied to the Trustee by the Clearing Agency Participants and shall be
delivered by the Trustee to such Clearing Agency Participants to be available
for forwarding by such Clearing Agency Participants to the holders of interests
in the Applicable Certificates in the manner described in Section 3.02(a) of
this Trust Supplement.
(c) If the aggregate principal payments scheduled for January
2, 2001, on the Equipment Notes held as Trust Property as of December 8, 2000,
differs from the amount thereof set forth for the Applicable Certificates on
page 47 of the Offering Memorandum, by no later than December 15, 2000 the
Trustee shall mail written notice of the actual amount of such scheduled
payments to the Applicable Certificateholders of record as of a date within 10
Business Days prior to the date of mailing.
(d) Promptly following (i) any reoptimization and the Delivery
Period Termination Date, in each case if there has been any change in the
information set forth in clauses (x), (y) and (z) below from that set forth in
page 47 of the Offering Memorandum, and (ii) any early redemption or purchase
of, or any default in the payment of principal or interest in respect of, any of
the Equipment Notes held in the Applicable Trust, or any Final Withdrawal, the
Trustee shall furnish to Applicable Certificateholders of record on such date a
statement setting forth (x) the expected Pool Balances for each subsequent
Regular Distribution Date following the Delivery Period Termination Date, (y)
the related Pool Factors for such Regular Distribution Dates and (z) the
expected principal distribution schedule of the Equipment Notes, in the
aggregate, held as Trust Property at the date of such notice. With respect to
the Applicable Certificates registered in the name of a Clearing Agency, on the
Delivery Period Termination Date, the Trustee will request from such Clearing
Agency a securities position listing setting forth the names of all Clearing
Agency Participants reflected on such Clearing Agency's books as holding
interests in the Applicable Certificates on such date. The Trustee will mail to
each such Clearing Agency Participant the statement described above and will
make available additional copies as requested by such Clearing Agency
Participant for forwarding to holders of interests in the Applicable
Certificates.
(e) This Section 3.02 supersedes and replaces Section 4.03 of
the Basic Agreement, with respect to the Applicable Trust.
ARTICLE IV
DEFAULT
Section 4.01. PURCHASE RIGHTS OF CERTIFICATEHOLDERS. (a) At
any time after the occurrence and during the continuance of a Triggering Event,
each Applicable Certificateholder shall have the right to purchase, for the
purchase price set forth in the Class A Trust Agreement, all, but not less than
all, of the Class A Certificates upon ten days' written notice to the Class A
Trustee and each other Applicable Certificateholder, provided that (i) if prior
to the end of such ten-day period any other Applicable Certificateholder
notifies such purchasing Applicable Certificateholder that such other Applicable
Certificateholder wants to participate in such purchase, then such other
Applicable Certificateholder may join with the purchasing Applicable
Certificateholder to purchase all, but not less than all, of the Class A
Certificates pro rata based on the Fractional Undivided Interest in the
Applicable Trust held by each such Applicable Certificateholder and (ii) if
prior to the end of such ten-day period any other Applicable Certificateholder
fails to notify the purchasing Applicable Certificateholder of such other
Applicable Certificateholder's desire to
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participate in such a purchase, then such other Applicable Certificateholder
shall lose its right to purchase the Class A Certificates;
(b) By acceptance of its Applicable Certificate, each
Applicable Certificateholder agrees that at any time after the occurrence and
during the continuation of a Triggering Event,
(i) each Class C Certificateholder shall have the
right (which shall not expire upon any purchase of the Class A
Certificates pursuant to the Class A Trust Agreement) to purchase all,
but not less than all, of the Applicable Certificates and the Class A
Certificates upon ten days' written notice to the Trustee, the Class A
Trustee and each other Class C Certificateholder, provided that (A) if
prior to the end of such ten-day period any other Class C
Certificateholder notifies such purchasing Class C Certificateholder
that such other Class C Certificateholder wants to participate in such
purchase, then such other Class C Certificateholder may join with the
purchasing Class C Certificateholder to purchase all, but not less than
all, of the Applicable Certificates and the Class A Certificates pro
rata based on the Fractional Undivided Interest in the Class C Trust
held by each such Class C Certificateholder and (B) if prior to the end
of such ten-day period any other Class C Certificateholder fails to
notify the purchasing Class C Certificateholder of such other Class C
Certificateholder's desire to participate in such a purchase, then such
other Class C Certificateholder shall lose its right to purchase the
Applicable Certificates and the Class A Certificates pursuant to this
Section 4.01(b); and
(ii) each holder of a Class D Certificate (a "Class D
Certificateholder") shall have the right (which shall not expire upon
any purchase of the Class A Certificates pursuant to clause (a) above
or any purchase of the Applicable Certificates pursuant to clause
(b)(i) above) to purchase all, but not less than all, of the Class A
Certificates, the Class B Certificates and the Class C Certificates
upon ten days' written notice to the Trustee, the Class A Trustee, the
Class C Trustee and each other Class D Certificateholder, provided that
(A) if prior to the end of such ten-day period any other Class D
Certificateholder notifies such purchasing Class D Certificateholder
that such other Class D Certificateholder wants to participate in such
purchase, then such other Class D Certificateholder may join with the
purchasing Class D Certificateholder to purchase all, but not less than
all, of the Applicable Certificates, the Class A Certificates and the
Class C Certificates pro rata based on the Fractional Undivided
Interest in the Class D Trust held by each such Class D
Certificateholder and (B) if prior to the end of such ten-day period
any other Class D Certificateholder fails to notify the purchasing
Class D Certificateholder of such other Class D Certificateholder's
desire to participate in such a purchase, then such other Class D
Certificateholder shall lose its right to purchase the Applicable
Certificates, the Class A Certificates and the Class C Certificates
pursuant to this Section 4.01(b).
The purchase price with respect to the Applicable Certificates
shall be equal to the Pool Balance of the Applicable Certificates, together with
accrued and unpaid interest thereon to the date of such purchase, without
premium, but including any other amounts then due and payable to the Applicable
Certificateholders under the Agreement, the Intercreditor Agreement, the Escrow
Agreement or any Note Document or on or in respect of the Applicable
Certificates; provided, however, that (x) if such purchase occurs after a record
date specified in Section 2.03 of the Escrow Agreement relating to the
distribution of unused Deposits and/or accrued and unpaid interest on Deposits
and prior to or on the related distribution date thereunder, such purchase price
shall be reduced by the aggregate amount of unused Deposits and/or interest to
be distributed under the Escrow Agreement (which deducted amounts shall remain
distributable to, and may be
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retained by, the Applicable Certificateholder as of such record date) and (y) if
such purchase occurs after a Record Date and prior to or on the related
Distribution Date, such purchase price shall be reduced by the amount to be
distributed under this Agreement on the related Distribution Date (which
deducted amounts shall remain distributable to, and may be retained by, the
Applicable Certificateholder as of such Record Date); provided further that no
such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the
Agreement and the Other Agreements, the Applicable Certificates, the Class A
Certificates and the Class C Certificates which are senior to the securities
held by such purchaser(s). Each payment of the purchase price of the Applicable
Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the Trustee and each such purchase shall be
subject to the terms of this Section 4.01(b). Each Applicable Certificateholder
agrees by its acceptance of its Applicable Certificate that (at any time after
the occurrence and during the continuation of a Triggering Event) it will, upon
payment from such Class C Certificateholder(s) or Class D Certificateholder(s),
as the case may be, of the purchase price set forth in the first sentence of
this paragraph, forthwith sell, assign, transfer and convey to the purchaser(s)
thereof (without recourse, representation or warranty of any kind except for its
own acts), all of the right, title, interest and obligation of such Applicable
Certificateholder in the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the Note Purchase
Agreement, the Note Documents and all Applicable Certificates and Escrow
Receipts held by such Applicable Certificateholder (subject to clauses (x) and
(y) in the first sentence of this paragraph and excluding all right, title and
interest under any of the foregoing to the extent such right, title or interest
is with respect to an obligation not then due and payable as respects any action
or inaction or state of affairs occurring prior to such sale) and the purchaser
shall assume all of such Applicable Certificateholder's obligations under the
Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor
Agreement, the Liquidity Facility, the Note Purchase Agreement, the Note
Documents and all such Applicable Certificates and Escrow Receipts). The
Applicable Certificates will be deemed to be purchased on the date payment of
the purchase price is made notwithstanding the failure of the Applicable
Certificateholders to deliver any Applicable Certificates and, upon such a
purchase, (I) the only rights of the Applicable Certificateholders will be to
deliver the Applicable Certificates to the purchaser(s) and receive the purchase
price for such Applicable Certificates and (II) if the purchaser(s) shall so
request, such Applicable Certificateholder will comply with all the provisions
of Section 3.04 of the Basic Agreement to enable new Applicable Certificates to
be issued to the purchaser in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new Applicable
Certificates shall be borne by the purchaser thereof.
As used in this Section 4.01 and elsewhere in this Trust
Supplement, the terms "Class A Certificate", "Class A Certificateholder", "Class
A Trust", "Class A Trustee", "Class C Certificate", "Class C Certificateholder",
"Class C Trust", "Class C Trustee", "Class D Certificate" and "Class D Trust",
shall have the respective meanings assigned to such terms in the Intercreditor
Agreement.
(c) This Section 4.01 supersedes and replaces Section 6.01(b)
of the Basic Agreement, with respect to the Applicable Trust.
ARTICLE V
THE TRUSTEE
Section 5.01. DELIVERY OF DOCUMENTS; DELIVERY DATES. (a) The
Trustee is hereby directed (i) to execute and deliver the Intercreditor
Agreement, the Escrow Agreement and the Note Purchase Agreement on or prior to
the Issuance Date, each in the form delivered to the Trustee by the Company, and
(ii) subject to the respective terms thereof, to perform its obligations
thereunder. Upon request of the Company and the satisfaction or waiver of the
closing conditions specified in the Placement Agreement, the
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Trustee shall execute, deliver, authenticate, issue and sell Applicable
Certificates in authorized denominations equaling in the aggregate the amount
set forth, with respect to the Applicable Trust, in Schedule I to the Placement
Agreement evidencing the entire ownership interest in the Applicable Trust,
which amount equals the maximum aggregate principal amount of Equipment Notes
which may be purchased by the Trustee pursuant to the Note Purchase Agreement.
Except as provided in Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement,
the Trustee shall not execute, authenticate or deliver Applicable Certificates
in excess of the aggregate amount specified in this paragraph. The provisions of
this Section 5.01(a) supersede and replace the first sentence of Section 3.02(a)
of the Basic Agreement, with respect to the Applicable Trust.
(b) On or after the Issuance Date, the Company may deliver
from time to time to the Trustee a Delivery Notice relating to one or more
Equipment Notes. After receipt of a Delivery Notice and in any case no later
than one Business Day prior to a Scheduled Delivery Date as to which such
Delivery Notice relates (the "Applicable Delivery Date"), the Trustee shall (as
and when specified in the Delivery Notice) instruct the Escrow Agent to provide
a Notice of Purchase Withdrawal to the Depositary requesting (A) the withdrawal
of all or a portion of the Deposit on the Applicable Delivery Date in accordance
with and to the extent permitted by the terms of the Escrow Agreement and the
Deposit Agreement and (B) the payment of all, or a portion, of such Deposit in
an amount equal in the aggregate to the purchase price of such Equipment Notes
to or on behalf of the Owner Trustee or the Company, as the case may be, issuing
such Equipment Notes, all as shall be described in the Delivery Notice. The
Trustee shall (as and when specified in such Delivery Notice), subject to the
conditions set forth in Section 2 of the Note Purchase Agreement, enter into and
perform its obligations under the Participation Agreement specified in such
Delivery Notice (the "Applicable Participation Agreement") and cause such
certificates, documents and legal opinions relating to the Trustee to be duly
delivered as required by the Applicable Participation Agreement. If at any time
prior to the Applicable Delivery Date, the Trustee receives a notice of
postponement pursuant to Section 1(e) or 1(f) of the Note Purchase Agreement,
then the Trustee shall give the Depositary (with a copy to the Escrow Agent) a
notice of cancellation of such Notice of Purchase Withdrawal relating to such
Deposit on such Applicable Delivery Date. Upon satisfaction of the conditions
specified in the Note Purchase Agreement and the Applicable Participation
Agreement, the Trustee shall purchase the applicable Equipment Notes with the
proceeds of the withdrawals of all or a portion of the Deposit made on the
Applicable Delivery Date in accordance with the terms of the Deposit Agreement
and the Escrow Agreement. The purchase price of such Equipment Notes shall equal
the principal amount of such Equipment Notes. Amounts withdrawn from such
Deposit in excess of the purchase price of the Equipment Notes or to the extent
not applied on the Applicable Delivery Date to the purchase price of the
Equipment Notes, shall be re-deposited by the Trustee with the Depositary on the
Applicable Delivery Date in accordance with the terms of the Deposit Agreement.
The provisions of this Section 5.01(b) supersede and replace the provisions of
Section 2.02 of the Basic Agreement, with respect to the Applicable Trust, and
all provisions of the Basic Agreement relating to Postponed Notes and Section
2.02 of the Basic Agreement shall not apply to the Applicable Trust.
(c) The Trustee acknowledges its acceptance of all right,
title and interest in and to the Trust Property to be acquired pursuant to
Section 5.01(b) of this Trust Supplement, the Note Purchase Agreement and each
Applicable Participation Agreement, and declares that it holds and will hold
such right, title and interest for the benefit of all present and future
Applicable Certificateholders, upon the trusts set forth in this Agreement. By
its acceptance of an Applicable Certificate, each initial Applicable
Certificateholder, as a grantor of the Applicable Trust, joins with the Trustee
in the creation of the Applicable Trust. The provisions of this Section 5.01(c)
supersede and replace the provisions of Section 2.03 of the Basic Agreement,
with respect to the Applicable Trust.
Section 5.02. WITHDRAWAL OF DEPOSITS. (a) If the Company shall
receive written notice from Boeing that the delivery date of any Aircraft will
be delayed beyond the Delivery Period
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Termination Date, the Company may deliver to the Trustee written notice to such
effect and requesting that the Trustee deliver to the Escrow Agent a Prepayment
Withdrawal Certificate pursuant to the Escrow Agreement directing the Escrow
Agent to provide a Notice of Prepayment Withdrawal to the Depositary requesting
the withdrawal of all or a portion of the Deposit relating to Equipment Notes in
respect of such Aircraft in accordance with and to the extent permitted by the
terms of the Escrow Agreement and the Deposit Agreement.
(b) If any portion of the Deposit remains outstanding on the
Business Day next succeeding the Cut-off Date, the Trustee shall (i) give the
Escrow Agent notice that the Trustee's obligation to purchase Equipment Notes
under the Note Purchase Agreement has terminated and instruct the Escrow Agent
to provide a notice of Final Withdrawal to the Depositary substantially in the
form of Exhibit B to the Deposit Agreement (the "Final Withdrawal Notice") and
(ii) shall make demand upon the Company pursuant to the Note Purchase Agreement
for an amount equal to the Deposit Make Whole Amount, if any, such payment to be
made on the Final Withdrawal Date.
Section 5.03. THE TRUSTEE. (a) Subject to Section 5.04 of this
Trust Supplement and Section 7.15 of the Basic Agreement, the Trustee shall not
be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement, the Note Purchase
Agreement or the Escrow Agreement or the due execution hereof or thereof by the
Company or the other parties thereto (other than the Trustee), or for or in
respect of the recitals and statements contained herein or therein, all of which
recitals and statements are made solely by the Company, except that the Trustee
hereby represents and warrants that each of this Trust Supplement, the Basic
Agreement, each Applicable Certificate, the Intercreditor Agreement, the Note
Purchase Agreement and the Escrow Agreement has been executed and delivered by
one of its officers who is duly authorized to execute and deliver such document
on its behalf.
(b) Except as herein otherwise provided and except during the
continuance of an Event of Default in respect of the Applicable Trust created
hereby, no duties, responsibilities or liabilities are assumed, or shall be
construed to be assumed, by the Trustee by reason of this Trust Supplement other
than as set forth in the Agreement, and this Trust Supplement is executed and
accepted on behalf of the Trustee, subject to all the terms and conditions set
forth in the Agreement, as fully to all intents as if the same were herein set
forth at length.
Section 5.04. REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE.
The Trustee hereby represents and warrants that:
(a) the Trustee has full power, authority and legal right to
execute, deliver and perform this Trust Supplement, the Intercreditor Agreement,
the Escrow Agreement, the Note Purchase Agreement and the Note Documents to
which it is or is to become a party and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust
Supplement, the Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement and the Note Documents to which it is or is to become a party;
(b) the execution, delivery and performance by the Trustee of
this Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
Note Purchase Agreement and the Note Documents to which it is or is to become a
party (i) will not violate any provision of any United States federal law or the
law of the state of the United States where it is located governing the banking
and trust powers of the Trustee or any order, writ, judgment, or decree of any
court, arbitrator or governmental authority applicable to the Trustee or any of
its assets, (ii) will not violate any provision of the articles of association
or by-laws of the Trustee, and (iii) will not violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of any lien on any properties included in the
Trust Property pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation, default
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or lien could reasonably be expected to have an adverse effect on the Trustee's
performance or ability to perform its duties hereunder or thereunder or on the
transactions contemplated herein or therein;
(c) the execution, delivery and performance by the Trustee of
this Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
Note Purchase Agreement and the Note Documents to which it is or is to become a
party will not require the authorization, consent, or approval of, the giving of
notice to, the filing or registration with, or the taking of any other action in
respect of, any governmental authority or agency of the United States or the
state of the United States where it is located regulating the banking and
corporate trust activities of the Trustee; and
(d) this Trust Supplement, the Intercreditor Agreement, the
Escrow Agreement, the Note Purchase Agreement and the Note Documents to which it
is or is to become a party have been, or will be, as applicable, duly executed
and delivered by the Trustee and constitute, or will constitute, as applicable,
the legal, valid and binding agreements of the Trustee, enforceable against it
in accordance with their respective terms; provided, however, that
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally and (ii) general principles of equity.
Section 5.05. TRUSTEE LIENS. The Trustee in its individual
capacity agrees, in addition to the agreements contained in Section 7.17 of the
Basic Agreement, that it will at its own cost and expense promptly take any
action as may be necessary to duly discharge and satisfy in full any Trustee's
Liens on or with respect to the Trust Property which is attributable to the
Trustee in its individual capacity and which is unrelated to the transactions
contemplated by the Intercreditor Agreement or the Note Purchase Agreement.
ARTICLE VI
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section 6.01. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF
APPLICABLE CERTIFICATEHOLDERS. Without limitation of Section 9.01 of the Basic
Agreement, under the terms of, and subject to the limitations contained in,
Section 9.01 of the Basic Agreement, the Company may (but will not be required
to), and the Trustee (subject to Section 9.03 of the Basic Agreement) shall, at
the Company's request, at any time and from time to time, (i) enter into one or
more agreements supplemental to the Escrow Agreement, the Note Purchase
Agreement or the Deposit Agreement, for any of the purposes set forth in clauses
(a) through (i) of such Section 9.01, and (without limitation of the foregoing
or Section 9.01 of the Basic Agreement) clauses (b) and (c) of such Section 9.01
shall also be deemed to include the Company's obligations under (in the case of
clause (b)), and the Company's rights and powers conferred by (in the case of
clause (c)), the Note Purchase Agreement and references in clauses (d), (f) and
(g) of such Section 9.01 to "any Intercreditor Agreement or any Liquidity
Facility" shall also be deemed to refer to "the Intercreditor Agreement, the
Liquidity Facility, the Escrow Agreement, the Note Purchase Agreement or the
Deposit Agreement" and (ii) enter into one or more agreements supplemental to
the Basic Agreement to provide for the formation of a Class D Trust, the
issuance of Class D Certificates, the purchase by the Class D Trust of Equipment
Notes and other matters incidental thereto or otherwise contemplated by Section
2.01(b) of the Basic Agreement.
Section 6.02. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF
APPLICABLE CERTIFICATEHOLDERS. Without limitation of Section 9.02 of the Basic
Agreement, the provisions of Section 9.02 of the Basic Agreement shall apply to
agreements or amendments for the purpose of adding any
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provisions to or changing in any manner or eliminating any of the provisions of
the Escrow Agreement, the Deposit Agreement or the Note Purchase Agreement or
modifying in any manner the rights and obligations of the Applicable
Certificateholders under the Escrow Agreement, the Deposit Agreement or the Note
Purchase Agreement; provided that the provisions of Section 9.02(a) of the Basic
Agreement shall be deemed to include reductions in any manner of, or delay in
the timing of, any receipt by the Applicable Certificateholders of payments upon
the Deposits.
ARTICLE VII
TERMINATION OF TRUST
Section 7.01. TERMINATION OF THE APPLICABLE TRUST. (a) The
respective obligations and responsibilities of the Company and the Trustee with
respect to the Applicable Trust shall terminate upon distribution to all
Applicable Certificateholders and the Trustee of all amounts required to be
distributed to them pursuant to this Agreement and the disposition of all
property held as part of the Trust Property; provided, however, that in no event
shall the Applicable Trust continue beyond one hundred ten (110) years following
the date of the execution of this Trust Supplement.
ARTICLE VIII
THE CERTIFICATES
Section 8.01. ADDITIONS TO ARTICLE III OF THE BASIC AGREEMENT.
In addition to the provisions of Article III of the Basic Agreement, the
following provisions shall apply to the Applicable Trust:
(a) The Initial Certificates will be issued in minimum
denominations of $100,000 or integral multiples of $1,000 in excess thereof. The
Exchange Certificates will be issued in denominations of $1,000 or integral
multiples thereof. Each Exchange Certificate shall be dated the date of its
authentication. The aggregate Fractional Undivided Interest of Applicable
Certificates shall not at any time exceed $44,741,000;
(b) Initial Certificates offered and sold in reliance on Rule
144A shall be issued initially in the form of one or more global Certificates in
definitive, fully registered form without interest coupons, substantially in the
form set forth as Exhibit A hereto (the "U.S. Global Certificate"), duly
executed and authenticated by the Trustee as hereinafter provided. The U.S.
Global Certificate will be registered in the name of a nominee for DTC and
deposited with the Trustee, as custodian for DTC. The aggregate principal amount
of the U.S. Global Certificate may from time to time be increased or decreased
by adjustments made on the records of DTC or its nominee, or of the Trustee, as
custodian for DTC or its nominee, as hereinafter provided;
(c) Initial Certificates offered and sold in offshore
transactions in reliance on Regulation S shall be issued initially in the form
of one or more temporary global Certificates in definitive, fully registered
form without interest coupons, substantially in the form set forth as Exhibit A
hereto (the "Temporary Offshore Global Certificate") duly executed and
authenticated by the Trustee as hereinafter provided. The Temporary Offshore
Global Certificate will be registered in the name of a nominee of DTC for credit
to the account of the
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Agent Members acting as depositaries for Euroclear and Cedel and deposited with
the Trustee as custodian for DTC. At any time following March 9, 2000 (the
"Offshore Certificates Exchange Date"), upon receipt by the Trustee of a
certificate substantially in the form of Exhibit B hereto, a single permanent
global Certificate in registered form substantially in the form set forth in
Exhibit A (the "Permanent Offshore Global Certificate"; and together with the
Temporary Offshore Global Certificate, the "Offshore Global Certificates"), duly
executed and authenticated by the Trustee as hereinafter provided, shall be
registered in the name of a nominee for DTC and deposited with the Trustee, as
custodian for DTC, and the Registrar shall reflect on its books and records the
date of such transfer and a decrease in the principal amount of any Temporary
Offshore Global Certificate in an amount equal to the principal amount of the
beneficial interest in such Temporary Offshore Global Certificate transferred.
The U.S. Global Certificate and the Offshore Global Certificates are sometimes
referred to as the "Global Certificates";
(d) Initial Certificates offered and sold to Institutional
Accredited Investors shall be issued in the form of permanent certificated
Certificates in registered form in substantially the form set forth as Exhibit A
hereto (the "U.S. Physical Certificates"). Certificates issued pursuant to
Section 8.04(b) in exchange for interests in any Offshore Global Certificate
shall be in the form of permanent certificated Certificates in registered form
substantially in the form set forth in Exhibit A (the "Offshore Physical
Certificates"). The Offshore Physical Certificates and U.S. Physical
Certificates are sometimes collectively herein referred to as the "Physical
Certificates";
(e) The Exchange Certificates shall be issued in the form of
one or more global Certificates substantially in the form of Exhibit A hereto
(each, a "Global Exchange Certificate"), except that (i) the Private Placement
Legend (hereinafter defined) shall be omitted and (ii) such Exchange
Certificates shall contain such appropriate insertions, omissions, substitutions
and other variations from the form set forth in Exhibit A hereto relating to the
nature of the Exchange Certificates as the Responsible Officer of the Trustee
executing such Exchange Certificates on behalf of the Trust may determine, as
evidenced by such officer's execution on behalf of the Trust of such Exchange
Certificates. Such Global Exchange Certificates shall be in registered form and
be registered in the name of DTC and deposited with the Trustee, at its
Corporate Trust Office, as custodian for DTC. The aggregate principal amount of
any Global Exchange Certificate may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for DTC for such
Global Exchange Certificate, which adjustments shall be conclusive as to the
aggregate principal amount of any such Global Exchange Certificate. Subject to
clause (i) and (ii) of the first sentence of this Section 8.01(e), the terms
hereof applicable to U.S. Global Certificates and/or Global Certificates shall
apply to the Global Exchange Certificates, mutatis mutandis;
(f) The definitive Applicable Certificates shall be in
registered form and shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner, all as determined by the officers executing such Applicable
Certificates, as evidenced by their execution of such Applicable Certificates.
Section 8.02. RESTRICTIVE LEGENDS. (a) Subject to Section
8.05, unless and until (i) an Initial Certificate is sold under an effective
Shelf Registration Statement or (ii) an Initial Certificate is exchanged for an
Exchange Certificate pursuant to an effective Exchange Offer Registration
Statement, in each case as provided for in the Registration Rights Agreement,
each Global Certificate (other than the Permanent Offshore Global Certificate)
and each U.S. Physical Certificate shall bear the following legend (the "Private
Placement Legend") on the face thereof:
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[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES
LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT, PRIOR TO
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION) RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE
EXCEPT (A) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (B) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE AGGREGATE
PRINCIPAL AMOUNT OF SUCH CERTIFICATE, THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS CERTIFICATE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES
TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), OR (F) TO ATLAS OR ANY
SUBSIDIARY THEREOF; (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(E) ABOVE), IT WILL FURNISH TO THE TRUSTEE SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (4) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THIS CERTIFICATE PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE CERTIFICATES UNDER RULE 144(K) UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK
THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IS A
PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO
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SUCH TRANSFER, FURNISH TO THE TRUSTEE, SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THE CERTIFICATES PURSUANT TO CLAUSE 2(E) ABOVE OR UPON ANY
TRANSFER OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE PASS THROUGH
TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.](a)
(b) Each Global Certificate shall also bear the following
legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE 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
HEREON 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.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 8.04 AND 8.05 OF THE TRUST
SUPPLEMENT TO THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.
Section 8.03. TRANSFER AND EXCHANGE. An Applicable
Certificateholder may transfer an Applicable Certificate by written application
to the Registrar stating the name of the proposed transferee and otherwise
complying with the terms of this Agreement, including providing a written
certificate or other evidence of compliance with any restrictions on transfer.
No such transfer shall be effected until, and such
----------------
(a) Not to be included on the face of the Permanent Offshore Global Certificate.
22
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transferee shall succeed to the rights of an Applicable Certificateholder only
upon, final acceptance and registration of the transfer by the Registrar in the
Register. Prior to the registration of any transfer by an Applicable
Certificateholder as provided herein, the Trustee shall treat the person in
whose name the Applicable Certificate is registered as the owner thereof for all
purposes, and the Trustee shall not be affected by notice to the contrary.
Furthermore, DTC shall, by acceptance of a Global Certificate, agree that
transfers of beneficial interests in such Global Certificate may be effected
only through a book-entry system maintained by DTC (or its agent), and that
ownership of a beneficial interest in the Certificate shall be required to be
reflected in a book entry. When Applicable Certificates are presented to the
Registrar with a request to register the transfer or to exchange them for an
equal face amount of Applicable Certificates of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met. To permit registrations of
transfers and exchanges in accordance with the terms, conditions and
restrictions hereof, the Trustee shall execute and authenticate Applicable
Certificates at the Registrar's request.
Section 8.04. BOOK-ENTRY PROVISIONS FOR U.S. GLOBAL
CERTIFICATE AND OFFSHORE GLOBAL CERTIFICATES. (a) Members of, or participants
in, DTC ("Agent Members") shall have no rights under this Agreement with respect
to any Global Certificate held on their behalf by DTC, or the Trustee as its
custodian, and DTC may be treated by the Trustee and any agent of the Trustee as
the absolute owner of such Global Certificate for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trustee or any
agent of the Trustee from giving effect to any written certification, proxy or
other authorization furnished by DTC or shall impair, as between DTC and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a holder of any Applicable Certificate. Upon the issuance of any
Global Certificate, the Registrar or its duly appointed agent shall record a
nominee of DTC as the registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited to
transfers of such Global Certificate or Offshore Global Certificate in whole,
but not in part, to nominees of DTC, its successor or such successor's nominees.
Beneficial interests in the U.S. Global Certificate and any Offshore Global
Certificate may be transferred in accordance with the rules and procedures of
DTC and the provisions of Section 8.05. Beneficial interests in the U.S. Global
Certificate or an Offshore Global Certificate shall be delivered to all
beneficial owners in the form of U.S. Physical Certificates or Offshore Physical
Certificates, as the case may be, if (i) DTC notifies the Trustee that it is
unwilling or unable to continue as depositary for the U.S. Global Certificate or
such Offshore Global Certificate, as the case may be, and a successor depositary
is not appointed by the Trustee within 90 days of such notice or (ii) an Event
of Default has occurred and Applicable Certificateholders with fractional
undivided interests aggregating not less than a majority in interest in the
Applicable Trust advise the Trustee, the Company and DTC through Agent Members
in writing that the continuation of a book-entry system through DTC (or a
successor thereto) is no longer in the Applicable Certificateholders' best
interests.
(c) Any beneficial interest in one of the Global Certificates
that is transferred to a Person who takes delivery in the form of an interest in
the other Global Certificate will, upon such transfer, cease to be an interest
in such Global Certificate and become an interest in the other Global
Certificate and, accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable to beneficial interests in
such other Global Certificate for as long as it remains such an interest.
(d) In connection with the transfer of the entire U.S. Global
Certificate or an entire Offshore Global Certificate to the beneficial owners
thereof pursuant to paragraph (b) of this Section 8.04, such U.S. Global
Certificate or Offshore Global Certificate, as the case may be, shall be deemed
to be surrendered to the Trustee for cancellation, and the Trustee shall
execute, authenticate and deliver, to each beneficial owner identified by DTC in
exchange for its beneficial interest in such U.S. Global Certificate or Offshore
Global Certificate,
23
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as the case may be, an equal aggregate principal amount of U.S. Physical
Certificates or Offshore Physical Certificates, as the case may be, of
authorized denominations.
(e) Any U.S. Physical Certificate delivered in exchange for an
interest in the U.S. Global Certificate pursuant to paragraph (b) of this
Section 8.04 shall, except as otherwise provided by paragraph (f) of Section
8.05, bear the Private Placement Legend.
(f) Any Offshore Physical Certificate delivered in exchange
for an interest in an Offshore Global Certificate pursuant to paragraph (b) of
this Section shall, except as otherwise provided by paragraph (f) of Section
8.05, bear the applicable legend regarding transfer restrictions set forth in
Section 8.02(a).
(g) The registered holder of the U.S. Global Certificate or
any Offshore Global Certificate may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Agreement or the Applicable Certificates.
Section 8.05. SPECIAL TRANSFER PROVISIONS. Unless and until
(i) an Initial Certificate is sold under an effective Shelf Registration
Statement, or (ii) an Initial Certificate is exchanged for an Exchange
Certificate pursuant to an effective Exchange Offer Registration Statement, in
each case pursuant to the Registration Rights Agreement, the following
provisions shall apply to such Initial Certificates:
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS.
The following provisions shall apply with respect to the registration of any
proposed transfer of an Applicable Certificate to any Institutional Accredited
Investor which is not a QIB (excluding transfers to or by Non-U.S. Persons):
(i) The Registrar shall register the transfer of any
Applicable Certificate, whether or not such
Applicable Certificate bears the Private Placement
Legend, if (x) the requested transfer is after the
time period referred to in Rule 144(k) under the
Securities Act as in effect with respect to such
transfer or (y) the proposed transferee has delivered
to the Registrar a letter substantially in the form
of Exhibit D hereto and the aggregate principal
amount of the Applicable Certificates being
transferred is at least $100,000.
(ii) If the proposed transferor is an Agent Member holding
a beneficial interest in the U.S. Global Certificate,
upon receipt by the Registrar of (x) the documents,
if any, required by paragraph (i) and (y)
instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect
on its books and records the date of the transfer and
a decrease in the principal amount of such U.S.
Global Certificate in an amount equal to the
principal amount of the beneficial interest in such
U.S. Global Certificate to be transferred, and the
Company shall execute, and the Trustee shall
authenticate and deliver to the transferor or at its
direction, one or more U.S. Physical Certificates of
like tenor and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply
with respect to the registration of any proposed transfer of an Initial
Certificate to a QIB (excluding Non-U.S. Persons):
(i) If the Initial Certificate to be transferred consists
of U.S. Physical Certificates or an interest in any
Temporary Offshore Global Certificate, the Registrar
shall register the transfer if such transfer is being
made by a proposed transferor who has checked the
24
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box provided for on the form of Initial Certificate
stating, or has otherwise advised the Trustee and the
Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided
for on the form of Initial Certificate stating, or
has otherwise advised the Trustee and the Registrar
in writing, that it is purchasing the Initial
Certificate for its own account or an account with
respect to which it exercises sole investment
discretion and that it, or the Person on whose behalf
it is acting with respect to any such account, is a
QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such
information regarding the Trust and/or the Company as
it has requested pursuant to Rule 144A or has
determined not to request such information and that
it is aware that the transferor is relying upon its
foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
(ii) Upon receipt by the Registrar of the documents
referred to in clause (i) above and instructions
given in accordance with DTC's and the Registrar's
procedures therefor, the Registrar shall reflect on
its books and records the date of such transfer and
an increase in the principal amount of the U.S.
Global Certificate in an amount equal to the
principal amount of the U.S. Physical Certificates or
interests in the Temporary Offshore Global
Certificate, as the case may be, being transferred,
and the Trustee shall cancel such Physical
Certificates or decrease the amount of such Temporary
Offshore Global Certificate so transferred.
(c) TRANSFERS OF INTERESTS IN THE PERMANENT OFFSHORE GLOBAL
CERTIFICATE OR OFFSHORE PHYSICAL CERTIFICATES. The Registrar shall register any
transfer of interests in the Permanent Offshore Global Certificate or Offshore
Physical Certificates without requiring any additional certification.
(d) TRANSFERS TO NON-U.S. PERSONS AT ANY TIME. The following
provisions shall apply with respect to any registration of any transfer of an
Initial Certificate to a Non-U.S. Person:
(i) Prior to the Offshore Certificates Exchange Date, the
Registrar shall register any proposed transfer of an
Initial Certificate to a Non-U.S. Person upon receipt
of a certificate substantially in the form set forth
as Exhibit C hereto from the proposed transferor.
(ii) On and after the Offshore Certificates Exchange Date,
the Registrar shall register any proposed transfer to
any Non-U.S. Person if the Initial Certificate to be
transferred is a U.S. Physical Certificate or an
interest in the U.S. Global Certificate, upon receipt
of a certificate substantially in the form of Exhibit
C from the proposed transferor. The Registrar shall
promptly send a copy of such certificate to the
Company.
(iii) (A) Upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (ii) and (y)
instructions in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect
on its books and records the date of such transfer
and a decrease in the principal amount of such U.S.
Global Certificate in an amount equal to the
principal amount of the beneficial interest in such
U.S. Global Certificate to be transferred, and (B)
upon receipt by the Registrar of instructions given
in accordance
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with DTC's and the Registrar's procedures, the
Registrar shall reflect on its books and records the
date and an increase in the principal amount of the
Offshore Global Certificate in an amount equal to the
principal amount of the U.S. Physical Certificate or
the U.S. Global Certificate, as the case may be, to
be transferred, and the Trustee shall cancel the
Physical Certificate, if any, so transferred or
decrease the amount of such U.S. Global Certificate.
(e) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Applicable Certificates not bearing the Private Placement Legend,
the Registrar shall deliver Applicable Certificates that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Applicable
Certificates bearing the Private Placement Legend, the Registrar shall deliver
only Applicable Certificates that bear the Private Placement Legend unless
either (i) the circumstances contemplated by paragraph (a)(i)(x) or (e)(ii) of
this Section 8.05 exist or (ii) there is delivered to the Registrar an Opinion
of Counsel to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act.
(f) GENERAL. By its acceptance of any Applicable Certificate
bearing the Private Placement Legend, each Holder of such an Applicable
Certificate acknowledges the restrictions on transfer of such Applicable
Certificate set forth in this Agreement and agrees that it will transfer such
Applicable Certificate only as provided in this Agreement. The Registrar shall
not register a transfer of any Applicable Certificate unless such transfer
complies with the restrictions on transfer of such Applicable Certificate set
forth in this Agreement. In connection with any transfer of Applicable
Certificates, each Applicable Certificateholder agrees by its acceptance of the
Applicable Certificates to furnish the Registrar or the Trustee such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine the sufficiency of any such certifications, legal opinions or other
information.
Until such time as no Applicable Certificates remain
Outstanding, the Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 8.04 or this Section 8.05.
The Trustee, if not the Registrar at such time, shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the
Registrar.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. BASIC AGREEMENT RATIFIED. Except and so far as
herein expressly provided, all of the provisions, terms and conditions of the
Basic Agreement are in all respects ratified and confirmed; and the Basic
Agreement and this Trust Supplement shall be taken, read and construed as one
and the same instrument. All replacements of provisions of, and other
modifications of the Basic Agreement set forth in this Trust Supplement are
solely with respect to the Applicable Trust.
26
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SECTION 9.02. GOVERNING LAW. THIS TRUST SUPPLEMENT AND THE
APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Section 9.03. EXECUTION IN COUNTERPARTS. This Trust Supplement
may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same
instrument.
Section 9.04. INTENTION OF PARTIES. The parties hereto intend
that the Applicable Trust be classified for U.S. federal income tax purposes as
a grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue
Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Applicable Certificateholder and Investor,
by its acceptance of its Applicable Certificate or a beneficial interest
therein, agrees to treat the Applicable Trust as a grantor trust for all U.S.
federal, state and local income tax purposes. The powers granted and obligations
undertaken pursuant to the Agreement shall be so construed so as to further such
intent.
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IN WITNESS WHEREOF, the Company and the Trustee have caused
this Trust Supplement to be duly executed by their respective representatives
thereto duly authorized, as of the day and year first written above.
ATLAS AIR, INC.
By:
-------------------------------------------
Name: Xxxx X. xxXxxxx
Title: Senior Director - Corporate Finance
WILMINGTON TRUST COMPANY,
as Trustee
By:
-------------------------------------------
Name:
Title:
28
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED
No. ______________
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT; (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE EXCEPT (A) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (B) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE AGGREGATE PRINCIPAL
AMOUNT OF SUCH CERTIFICATE, THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER), OR (F) TO ATLAS OR ANY SUBSIDIARY
THEREOF; (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
2(E) ABOVE), IT WILL FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (4) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS CERTIFICATE PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES
ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR IS A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE, SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION
29
A-2
AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THE CERTIFICATES PURSUANT TO CLAUSE 2(E)
ABOVE OR UPON ANY TRANSFER OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE PASS THROUGH TRUST AGREEMENT
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.](a)
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IN EXCHANGE FOR THIS CERTIFICATE 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 HEREON 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.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 8.05
AND 8.06 OF THE TRUST SUPPLEMENT OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO
HEREIN.]
[BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT EITHER (A) NO ASSETS OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
SECURITIES ACT OF 1974, AS AMENDED ("ERISA"), OR OF A PLAN SUBJECT TO SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") HAVE BEEN
USED TO PURCHASE THIS CERTIFICATE OR (B) THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND
THE CODE PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR
ADMINISTRATIVE EXEMPTIONS.]
--------------------
(a) Not to be included on the face of the Permanent Offshore Global Certificate.
30
A-3
[GLOBAL CERTIFICATE](a)
ATLAS AIR 2000-1B PASS THROUGH TRUST
9.057% Atlas Air [Initial] [Exchange] Pass Through Certificate
Issuance Date: _______________
Final Expected Distribution Date: ________
Evidencing A Fractional Undivided Interest In The Atlas Air Pass Through Trust
2000-1B, The Property Of Which Shall Include Certain Equipment Notes Each
Secured By An Aircraft Lease To Or Owned By Atlas Air, Inc.
$__________ Fractional Undivided Interest
representing _____% of the Trust per $1,000 face amount
THIS CERTIFIES THAT ________________, for value received, is
the registered owner of a $____________ (_____________ dollars) Fractional
Undivided Interest in the Atlas Air 2000-1B Pass Through Trust (the "Trust")
created pursuant to a Pass Through Trust Agreement, dated as of January 28, 2000
(the "BASIC AGREEMENT"), between the Trustee and Atlas Air, Inc., a Delaware
corporation (the "Company"), as supplemented by Trust Supplement No. 2000-1B
thereto, dated as of January 28, 2000 (the "Trust Supplement" and, together with
the Basic Agreement, the "AGREEMENT") between the Trustee and the Company, a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Agreement. This Certificate is one of the
duly authorized Certificates designated as "9.057% Atlas Air [Initial]
[Exchange] Pass Through Certificates Series 2000-1B" (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 holder of this Certificate (the "CERTIFICATEHOLDER") and, together with all
other holders of Certificates issued by the Trust, the "CERTIFICATEHOLDERS")
assents to and agrees to be bound by the provisions of the Agreement and the
Intercreditor Agreement. The property of the Trust includes certain Equipment
Notes and all rights of the Trust to receive payments under the Intercreditor
Agreement and the Liquidity Facility (the "Trust Property"). Each issue of the
Equipment Notes is secured by, among other things, a security interest in an
Aircraft leased to or owned by the Company.
The Certificates represent fractional undivided interests in
the Trust and the Trust Property, and have no rights, benefits or interest in
respect of any other separate trust established pursuant to the terms of the
Basic Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement
and the Intercreditor Agreement, from and to the extent of funds then available
to the Trustee, there will be distributed on each January 2 and July 2 (a
"Regular Distribution Date"), commencing on July 2, 2000, to the Person in whose
name this Certificate is registered at the close of business on the 15th day
preceding the Regular Distribution Date, an amount
-------------------
(a) To be included only on each Global Certificate.
31
A-4
in respect of the Scheduled Payments on the Equipment Notes due on such Regular
Distribution Date, the receipt of which has been confirmed by the Trustee, equal
to the product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Scheduled Payments. Subject
to and in accordance with the terms of the Agreement and the Intercreditor
Agreement, in the event that Special Payments on the Equipment Notes are
received by the Trustee, from funds then available to the Trustee, there shall
be distributed on the applicable Special Distribution Date, to the Person in
whose name this Certificate is registered at the close of business on the 15th
day preceding the Special Distribution Date, an amount in respect of such
Special Payments on the Equipment Notes, the receipt of which has been confirmed
by the Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Special
Payments so received. If a Regular Distribution Date or Special Distribution
Date is not a Business Day, distribution shall be made on the immediately
following Business Day with the same force and effect as if made on such Regular
Distribution Date or Special Distribution Date and no interest shall accrue
during the intervening period. The Trustee shall mail notice of each Special
Payment and the Special Distribution Date therefor to the Certificateholder of
this Certificate.
[The Holder of this Certificate is entitled to the benefits of
the Registration Rights Agreement, dated as of January 28, 2000, among the
Company, the Trustee and the Placement Agents named therein (the "Registration
Rights Agreement"). In the event that neither the consummation of the Exchange
Offer nor the declaration by the Commission of a Shelf Registration to be
effective (a "Registration Event") occurs on or prior to the 210th day after the
date of the issuance of the Certificates, the interest rate per annum borne by
the Equipment Notes shall be increased by 0.50%, from and including such 210th
day, to but excluding the date on which a Registration Event occurs. In the
event that the Shelf Registration Statement ceases to be effective at any time
during the period specified by the Registration Rights Agreement for more than
60 days, whether or not consecutive, during any 12-month period, the interest
rate per annum borne by the Equipment Notes shall be increased by 0.50% from the
61st day of the applicable 12-month period such Shelf Registration Statement
ceases to be effective until such time as the Shelf Registration Statement again
becomes effective.](a)
Each Certificateholder and Investor, by its acceptance of this
Certificate or a beneficial interest herein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes.
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 AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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.
------------------
(a) To be included only on each Initial Certificate.
32
A-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: [__________ __], 2000 ATLAS AIR
2000-1B PASS THROUGH TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
Attest: By:
-----------------------------
Name:
Title:
--------------------
Authorized Signature
33
A-6
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred to
in the within-mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By:
-----------------------------------
Authorized Officer
34
A-7
[REVERSE OF CERTIFICATE]
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 of their affiliates. 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 therein 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, in the Borough of Manhattan, the City
of New York, duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Registrar duly executed by the
Certificateholder hereof or such Certificateholder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Trust will be
issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of [$100,000](a) [$1,000](b) Fractional
Undivided Interest and integral multiples of $1,000 in excess thereof [except
that one Certificate may be in a denomination of less than $100,000]*. 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.
---------------
(a) To be included only on each Initial Certificate.
(b) To be included only on each Exchange Certificate.
35
A-8
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment by the Holder 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.
36
A-9
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
----------------------------
----------------------------
please print or typewrite name and address including zip code of assignee
----------------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
----------------------------
attorney to transfer said Certificate on the books of the Trustee with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT EXCHANGE CERTIFICATES AND
PERMANENT OFFSHORE GLOBAL AND
UNLEGENDED OFFSHORE PHYSICAL CERTIFICATES]
In connection with any transfer of this Certificate occurring
prior to the date that is the earlier of (i) the date of Registration Event or
(ii) the end of the period referred to in Rule 144(k) of the Securities Act, the
undersigned confirms that without utilizing any general solicitation or general
advertising that:
[Check One]
[ ](a) this Certificate is being transferred in compliance with the
exemption from registration under the Securities Act of 1933, as
amended, provided by Rule 144A thereunder.
or
[ ](b) this Certificate is being transferred other than in accordance
with (a) above and documents are being furnished that comply
with the conditions of transfer set forth in this Certificate
and the Agreement.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Certificate in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 8.06 of the Trust
Supplement shall have been satisfied.
37
A-10
Date: [Name of Transferor]
------------------- -----------------------------------
NOTE: The signature must correspond
with the name as written upon the
face of the within-mentioned
instrument in every particular,
Signature Guarantee: without alteration or any change
------------------- whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Certificate for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated:
-------------------- ----------------------------------
NOTE: To be executed by an
executive officer.
38
EXHIBIT B
FORM OF CERTIFICATE FOR UNLEGENDED CERTIFICATES
[DATE]
Wilmington Trust Company
One Xxxxxx Square
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: Atlas Air 2000-1B Pass Through Trust, Class B Pass Through
Trust Certificates
(the "Certificates")
Dear Sirs:
This letter relates to U.S. $__________ Fractional Undivided
Interest of Certificates represented by a Certificate (the "Legended
Certificate") which bears a legend outlining restrictions upon transfer of such
Legended Certificate. Pursuant to Section 3.01 of the Pass Through Trust
Agreement dated as of January 28, 2000 (the "Basic Agreement") between the
Trustee and Atlas Air, Inc., a Delaware corporation (the "Company"), as
supplemented by Trust Supplement No. 2000-1B thereto (the "Trust Supplement",
and together with the Basic Agreement, the "Agreement"), we hereby certify that
we are (or we will hold such securities on behalf of) a person outside the
United States to whom the Certificates could be transferred in accordance with
Rule 904 of Regulation S promulgated under the U.S. Securities Act of 1933, as
amended. Accordingly, you are hereby requested to exchange the legended
certificate for an unlegended certificate representing an identical principal
amount of Certificates, all in the manner provided for in the Agreement.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Certificateholder]
By:
-------------------------------------
Authorized Signature
39
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
[DATE]
Wilmington Trust Company
One Xxxxxx Square
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: Atlas Air 2000-1B Pass Through Trust (the "Trust"),
9.057% Atlas Air Pass Through Trust Certificates
Series 2000-1B (the "Certificates")
Sirs:
In connection with our proposed sale of $_______ Fractional
Undivided Interest of the Certificates, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended, and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States
or (b) the transaction was executed in, on or through the facilities of
a designated off-shore securities market and neither we nor any person
acting on our behalf knows that the transaction has been pre-arranged
with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may
be.
You and Atlas Air, Inc. are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-------------------------------------
Authorized Signature
40
EXHIBIT D
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
[DATE]
Wilmington Trust Company
One Xxxxxx Square
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: Atlas Air 2000-1B Pass Through Trust (the "Trust"),
9.057% Atlas Air Pass Through Trust Certificates
Series 2000-1B (the "Certificates")
Dear Sirs:
In connection with our proposed purchase of $_______________
aggregate principal amount of the Certificates, we confirm that:
(1) We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Pass
Through Trust Agreement dated as of January 28, 2000 (the "Basic
Agreement") between the Trustee and Atlas Air, Inc., a Delaware
corporation (the "Company"), as supplemented by Trust Supplement No.
2000-1B thereto (the "Trust Supplement", and together with the Basic
Agreement, the "Agreement") relating to the Certificates and the
undersigned agrees to be bound by the Agreement, and not to resell,
pledge or otherwise transfer the Certificates except in compliance
with, such restrictions and conditions contained in the Agreement and
the Securities Act of 1933, as amended (the "Securities Act").
(2) We understand that the Certificates have not been registered under
the Securities Act, and that the Certificates may not be offered or
sold except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Certificate, we will do
so only (A) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (B) to an
institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company, a signed letter substantially
in the form of this letter, (C) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (D) pursuant to
the exemption from registration provided by Rule 144 under the
Securities Act, (E) pursuant to an effective registration statement
under the Securities Act, or (F) to the Company or any subsidiary
thereof, and we further agree to provide to any person purchasing any
of the Certificates from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein. We further
understand that the Certificates purchased by us will bear a legend to
the foregoing effect.
(3) We understand that, on any proposed resale of any Certificates, we
will be required to furnish to you and the Company such certifications,
legal opinions and other information as you and the Company
41
may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Certificates
purchased by us will bear a legend to the foregoing effect.
(4) We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Certificates and we and any accounts for which we are
acting are each able to bear the economic risk of our or its
investment.
(5) We are acquiring the Certificates purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
-------------------------------------
Authorized Signature
