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Exhibit 10.111
EXECUTION COPY
ATLAS AIR, INC.
as Issuer
and
STATE STREET BANK AND TRUST COMPANY
as Trustee
-----------------------------
INDENTURE
Dated as of April 9, 1998
-----------------------------
$175,000,000
9 1/4% SENIOR NOTES DUE 2008, SERIES A
9 1/4% SENIOR NOTES DUE 2008, SERIES B
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a) (1)...........................................................................7.10
(a)(2)........................................................................7.10
(a)(3)........................................................................N.A.
(a)(4)........................................................................N.A.
(b)...........................................................................7.8; 7.10
(c)...........................................................................N.A.
311 (a) ..........................................................................7.11
(b)...........................................................................7.11
(c)...........................................................................N.A.
312 (a)...........................................................................2.5
(b)...........................................................................10.3
(c)...........................................................................10.3
313 (a)...........................................................................7.6
(b)(1)........................................................................N.A.
(b)(2)........................................................................7.6
(c)...........................................................................7.6
(d)...........................................................................7.6
314 (a)...........................................................................4.2; 4.10; 10.2
(b)...........................................................................N.A.
(c)(1)........................................................................10.4
(c)(2)........................................................................10.4
(c)(3)........................................................................N.A.
(d)...........................................................................N.A.
(e)...........................................................................10.5
(f)...........................................................................4.9
315 (a)...........................................................................7.1
(b)...........................................................................7.5; 10.2
(c)...........................................................................7.1
(d)...........................................................................7.1
(e)...........................................................................6.11
316 (a)(last sentence)............................................................10.6
(a)(1)(A).....................................................................6.5
(a)(1)(B).....................................................................6.4
(a)(2)........................................................................N.A.
(b)...........................................................................6.7
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317 (a)(1)........................................................................6.8
(a)(2)........................................................................6.9
(b)...........................................................................2.4
318 (a)...........................................................................12.1
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions...........................................................................1
SECTION 1.2. Other Definitions....................................................................18
SECTION 1.3. Incorporation by Reference of Trust Indenture Act....................................19
SECTION 1.4. Rules of Construction................................................................19
ARTICLE II
The Securities
SECTION 2.1. Form and Dating......................................................................20
SECTION 2.2. Execution and Authentication.........................................................21
SECTION 2.3. Registrar and Paying Agent...........................................................22
SECTION 2.4. Paying Agent to Hold Money in Trust..................................................22
SECTION 2.5. Securityholder Lists.................................................................23
SECTION 2.6. Transfer and Exchange................................................................23
SECTION 2.7. Replacement Securities...............................................................24
SECTION 2.8. Outstanding Securities...............................................................24
SECTION 2.9. Treasury Securities..................................................................24
SECTION 2.10. Temporary Securities................................................................25
SECTION 2.11. Cancellation........................................................................25
SECTION 2.12. Defaulted Interest..................................................................25
SECTION 2.13. CUSIP Number........................................................................25
SECTION 2.14. Deposit of Moneys...................................................................26
SECTION 2.15. Restrictive Legends.................................................................26
SECTION 2.16. Book-Entry Provisions for Global Security...........................................29
SECTION 2.17. Special Transfer Provisions.........................................................30
SECTION 2.18. Persons Deemed Owners...............................................................33
SECTION 2.19. Record Date.........................................................................33
ARTICLE III
Redemption
SECTION 3.1. Notices to Trustee...................................................................33
SECTION 3.2. Selection of Securities to be Redeemed...............................................33
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SECTION 3.3. Notice of Redemption.................................................................34
SECTION 3.4. Effect of Notice of Redemption.......................................................35
SECTION 3.5. Deposit of Redemption Price..........................................................35
SECTION 3.6. Securities Redeemed in Part..........................................................35
ARTICLE IV
Covenants
SECTION 4.1. Payment of Securities................................................................35
SECTION 4.2. Reports..............................................................................36
SECTION 4.3. Limitation on Incurrence of Additional Indebtedness..................................36
SECTION 4.4. Limitation on Restricted Payments....................................................37
SECTION 4.5. Limitation on Issuances and Sales of Capital
Stock of Subsidiaries....................................................40
SECTION 4.6. Limitation on Transactions with Affiliates...........................................40
SECTION 4.7. Limitation on Liens..................................................................41
SECTION 4.8. Limitation on Asset Sales and Disposition of
Proceeds of Asset Sales..................................................41
SECTION 4.9. Change of Control....................................................................44
SECTION 4.10. Limitation on Guarantees of Indebtedness by Subsidiaries............................46
SECTION 4.11. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries......................................46
SECTION 4.12. Further Instruments and Acts........................................................47
SECTION 4.13. Use of Proceeds.....................................................................47
SECTION 4.14. Compliance Certificates.............................................................47
SECTION 4.15. Maintenance of Office or Agency.....................................................48
SECTION 4.16. Taxes...............................................................................48
SECTION 4.17. Stay, Extension and Usury Laws......................................................48
SECTION 4.18. Corporate Existence.................................................................48
ARTICLE V
Surviving Entity
SECTION 5.1. Limitations on Consolidations, Mergers and Sales of Assets...........................49
ARTICLE VI
Defaults and Remedies
SECTION 6.1. Events of Default....................................................................50
SECTION 6.2. Acceleration.........................................................................52
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SECTION 6.3. Other Remedies.......................................................................53
SECTION 6.4. Waiver of Past Defaults..............................................................53
SECTION 6.5. Control by Majority..................................................................53
SECTION 6.6. Limitation on Suits..................................................................53
SECTION 6.7. Rights of Holders to Receive Payment.................................................54
SECTION 6.8. Collection Suit by Trustee...........................................................54
SECTION 6.9. Trustee May File Proofs of Claim.....................................................54
SECTION 6.10. Priorities..........................................................................54
SECTION 6.11. Undertaking for Costs...............................................................55
ARTICLE VII
Trustee
SECTION 7.1. Duties of Trustee....................................................................55
SECTION 7.2. Rights of Trustee....................................................................56
SECTION 7.3. Individual Rights of Trustee.........................................................57
SECTION 7.4. Trustee's Disclaimer.................................................................57
SECTION 7.5. Notice of Defaults...................................................................57
SECTION 7.6. Reports by Trustee to Holders........................................................58
SECTION 7.7. Compensation and Indemnity...........................................................58
SECTION 7.8. Replacement of Trustee...............................................................59
SECTION 7.9. Successor Trustee by Merger..........................................................60
SECTION 7.10. Eligibility; Disqualification.......................................................60
SECTION 7.11. Preferential Collection of Claims Against Company...................................60
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Securities; Defeasance.....................................60
SECTION 8.2. Conditions to Defeasance.............................................................62
SECTION 8.3. Application of Trust Money...........................................................63
SECTION 8.4. Repayment to Company.................................................................63
SECTION 8.5. Indemnity for U.S. Government Obligations............................................64
SECTION 8.6. Reinstatement........................................................................64
ARTICLE IX
Amendments
SECTION 9.1. Without Consent of Holders...........................................................64
SECTION 9.2. With Consent of Holders..............................................................65
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SECTION 9.3. Compliance with Trust Indenture Act..................................................67
SECTION 9.4. Revocation and Effect of Consents and Waivers........................................67
SECTION 9.5. Notation on or Exchange of Securities................................................67
SECTION 9.6. Trustee to Sign Amendments...........................................................68
ARTICLE X
Miscellaneous
SECTION 10.1. Trust Indenture Act Controls........................................................68
SECTION 10.2. Notices.............................................................................68
SECTION 10.3. Communication by Holders with Other Holders.........................................69
SECTION 10.4 Certificate and Opinion as to Conditions Precedent...................................69
SECTION 10.5 Statements Required in Certificate or Opinion........................................69
SECTION 10.6. When Securities Disregarded.........................................................70
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar........................................70
SECTION 10.8. Legal Holidays......................................................................70
SECTION 10.9. Governing Law.......................................................................70
SECTION 10.10. No Recourse Against Others.........................................................70
SECTION 10.11. Successors.........................................................................71
SECTION 10.12. Multiple Originals.................................................................71
SECTION 10.13. Variable Provisions................................................................71
SECTION 10.14. Qualification of Indenture.........................................................71
SECTION 10.15. Table of Contents; Headings........................................................71
SECTION 10.16. Severability.......................................................................71
SECTION 10.17. No Adverse Interpretation of Other Agreements......................................71
Exhibit A - Form of Series A Security.................................................................A-1
Exhibit B - Form of Series B Security.................................................................B-1
Exhibit C - Form of Certificate to be Delivered in Connection with Transfers to Non-QIB
Accredited Investors......................................................................C-1
Exhibit D - Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S..................................................................D-1
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Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
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INDENTURE dated as of April 9, 1998, between Atlas Air, Inc.,
a Delaware corporation (as further defined below, the "Company"), and State
Street Bank and Trust Company, a Massachusetts bank and trust company (the
"Trustee").
The Company has duly authorized the creation and issuance of
up to $175,000,000 aggregate principal amount of 9 1/4% Senior Notes due 2008
(the "Initial Securities") and $175,000,000 aggregate principal amount of 9 1/4%
Senior Notes due 2008 (the "Exchange Securities", and together with the Initial
Securities, the "Securities") and, to provide therefor, the Company has duly
authorized the execution and delivery of this Indenture. All things necessary to
make the Securities (as defined herein), when duly issued and executed by the
Company, and authenticated and delivered hereunder, the valid obligations of the
Company, and to make this Indenture a valid and binding agreement of the Company
have been done.
The Company and the Trustee agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders of the
Securities:
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
"ACMI Contracted Aircraft" means an aircraft acquired by the
Company or its Subsidiaries and dedicated to a new ACMI Contract entered into
within 60 days of the acquisition of such aircraft (which ACMI Contract shall
not represent a renewal or replacement of a prior ACMI Contract unless the
aircraft dedicated to such prior ACMI Contract was operated under an operating
lease and returned to the lessor) which is in effect on the date of calculation
and has a remaining term of three years or more on the date such aircraft was
dedicated to such ACMI Contract provided that in any calendar year two ACMI
contracts may have a term of not less than one year (subject to cancellation
terms, which may include the right to cancel on no less than six months notice).
Pro forma effect shall be given to the acquisition of an ACMI Contracted
Aircraft by adding to the appropriate components of the Consolidated Fixed
Charge Coverage Ratio (i) the net projected annualized revenues from the
operation of the ACMI Contracted Aircraft under such ACMI Contract for that
portion of the period for which the Consolidated Fixed Charge Coverage Ratio is
being calculated prior to the acquisition of such aircraft, assuming operation
for the minimum guaranteed number of block hours (less any block hours subject
to cancellation) at the minimum guaranteed rate under such ACMI Contract less
(ii) the projected annualized cash operating expenses from such operation for
the same period for which the related projected revenues are determined in
clause (i) above, provided that such projected cash operating expenses shall not
be less on a per block hour basis than the average historical per block hour
cash operating expenses of the Company for such aircraft model for the four full
fiscal quarters immediately preceding the date of calculation, and provided,
further, that if such aircraft is of a model not then currently operated by the
Company, such projected cash operating expenses shall include
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maintenance costs which shall not be less than the average for such aircraft
type disclosed on the most recently available DOT Forms 41 with respect to such
aircraft type or any summary of such data as reported in a nationally recognized
industry publication or as provided in a written estimate prepared by a
nationally recognized air transportation consulting group. For purposes of this
definition, "ACMI Contract" shall include contracts pursuant to which the
Company does not pay any crew costs, in which event pro forma effect shall be
given as described above but excluding from the projected annualized cash
operating expenses all crew costs. Cash operating expenses means for purposes of
this definition consolidated operating expenses, less consolidated depreciation
and amortization and consolidated rental expenses, to the extent included in
computing consolidated operating expenses.
"Acquired Indebtedness" means Indebtedness of a Person (a)
existing at the time such Person becomes a Subsidiary or (b) assumed in
connection with the acquisition of assets from such Person.
"AFL II" means a wholly owned Unrestricted Subsidiary formed
in August 1997 for the sole purpose of owning and leasing four 747-200 aircraft
and nine spare engines previously owned by the Company and financed by the
Company's existing revolving credit facility.
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person or (ii) any other
Person that owns, directly or indirectly, 5% or more of such specified Person's
Capital Stock or any executive officer or director of any such specified Person
or other Persons or, with respect to any natural Person, any Person having a
relationship with such Person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control," when used
with respect to any specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Appraised Fair Market Value" means the Adjusted Current
Market Value. Current Market Value is the most likely trading price that, in the
opinion of an appraiser, may be generated from an aircraft under the market
conditions that are perceived to exist at the time in question. Current Market
Value assumes that the aircraft is valued for its highest, best use, that the
parties to the hypothetical transaction are willing, able, prudent and
knowledgeable, and under no unusual pressure for a prompt sale, and that the
transaction would be negotiated in an open and unrestricted market on an arm's
length basis, for cash or equivalent consideration, and given an adequate amount
of time for effective exposure to prospective buyers. Adjusted Current Market
Value, in the opinion of the appraiser, is the Current Market Value of the
aircraft adjusted for the actual technical status and maintenance condition of
the aircraft.
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"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (i) any
Capital Stock of any Subsidiary; (ii) all or substantially all of the properties
and assets of the Company or its Subsidiaries; or (iii) any other properties or
assets of the Company or any Subsidiary, other than in the ordinary course of
business. For the purposes of this definition, the term "Asset Sale" shall not
include any transfer of properties or assets (A) that is governed by the
provisions of this Indenture, described in Section 5.1, (B) by the Company to
any Subsidiary, or by any Subsidiary of the Company or any Subsidiary and in
accordance with the terms of the Indenture, (C) of aircraft engines, components,
parts or spare parts pursuant to customary pooling, exchange or similar
agreements or, (D) asset swaps involving aircraft engines, components, parts or
spare parts (provided that the assets received by the Company or any Subsidiary
have a Fair Market Value at least equal to the asset transferred (provided that
with respect to any asset swap or series of related asset swaps involving assets
with a Fair Market Value exceeding $3 million, such determination shall be made
by the Board of Directors)), (E) constituting an Investment that is permitted
under the Indenture in an Unrestricted Subsidiary, joint venture or other Person
in which the Company or a Subsidiary retains an ownership interest, or (F)
having a Fair Market Value per transaction or series of related transactions of
less than $1,000,000.
"Atlas Freighter Leasing Transactions" means the transactions
in which Atlas Freighter Leasing, Inc. and AFL II, each a wholly-owned
Unrestricted Subsidiary of the Company, refinanced six 747-200 aircraft and four
747-200 aircraft all previously owned by the Company, respectively.
"Aviation Act" means the Federal Aviation Act of 1958, as
amended, and the applicable regulations thereunder.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, as
amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Board of Directors" means the Board of Directors of any
Person or any committee thereof duly authorized to act on behalf of such Board
of Directors.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"Boeing Purchase Contract" means the agreement dated June 9,
1997 between Atlas Air, Inc. and The Boeing Company to purchase ten new 747-400
aircraft.
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"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations, rights in or
other equivalents (however designated) of such Person's capital stock or other
equity participations, including partnership interests, whether general or
limited, in such Person, including any Preferred Stock, and any rights (other
than debt securities convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock, whether now outstanding
or issued after the date of this Indenture.
"Capitalized Lease Obligation" of any Person means any
obligation of such Person and its subsidiaries on a consolidated basis under a
lease of (or other agreement conveying the right to use) any property (whether
real, personal or mixed) that is required to be classified and accounted for as
a capital lease obligation under GAAP, and, for the purpose of the Indenture,
the amount of such obligation at any date shall be the capitalized amount
thereof at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) any evidence of Indebtedness with
a maturity of one year or less issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof); (ii) certificates of deposit or acceptances and
money market deposits with a maturity of one year or less of any financial
institution that is a member of the Federal Reserve System, in each case having
combined capital and surplus and undivided profits of not less than
$500,000,000; (iii) commercial paper with a maturity of one year or less issued
by a corporation that is not an Affiliate of the Company and is organized under
the laws of any state of the United States or the District of Columbia and rated
at least A-1 by S&P or at least P-1 by Moody's and (iv) investment in money
market funds substantially all of whose assets are comprised of Cash Equivalents
described in clauses (i) through (iii).
"Cedel Bank" has the meaning set forth in Section 2.1.
"Change of Control" means the occurrence of any of the
following events: (a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than Permitted Holders, is
or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 40% of the total outstanding Voting Stock
of the Company; (b) the Company consolidates with, or merges with or into,
another Person or conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person consolidates with,
or merges with or into, the Company, in any such event pursuant to a transaction
in which the outstanding Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such
transaction where (i) the outstanding Voting Stock of the Company is not
converted or exchanged at all (except to the extent necessary to reflect a
change in the jurisdiction of
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incorporation of the Company) or is converted into or exchanged for (A) Voting
Stock (other than Redeemable Capital Stock) of the surviving or transferee
corporation or (B) cash, securities and other property (other than Capital Stock
of the Surviving Entity) in an amount that could be paid by the Company as a
Restricted Payment as described in Section 4.4 (or a combination of (A) and (B))
and (ii) immediately after such transaction, no "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than
Permitted Holders, is the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 40% of the total outstanding
Voting Stock of the surviving transferee corporation; (c) during any consecutive
two year period, individuals who at the beginning of such period constituted the
Board of Directors of the Company (together with any new directors whose
election to such Board of Directors, or whose nomination for election by the
stockholders of the Company was approved by a vote of 66 2/3% of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of the Company
then in office; or (d) the Company is liquidated or dissolved or adopts a plan
of liquidation or dissolution other than in a transaction which complies with
the provisions described in Section 5.1. For purposes of this definition, a
Permitted Holder shall be deemed to beneficially own Voting Stock that has been
pledged to a financial institution, unless the pledgee has the present right to
vote such Voting Stock in the election of directors or has exercised remedies
with respect to such Voting Stock.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Atlas Air, Inc., a Delaware corporation until
a successor replaces it and, thereafter, means the successor.
"Commission" or "SEC" means the U.S. Securities and Exchange
Commission or its successor.
"Consolidated Adjusted Net Income" means, for any period, the
consolidated net income (or loss) of the Company and all Subsidiaries for such
period as determined in accordance with GAAP, adjusted by excluding, without
duplication, (a) any net after-tax extraordinary gains or losses (less all fees
and expenses relating thereto), (b) any net after-tax gains or losses (less all
fees and expenses relating thereto) attributable to asset dispositions other
than in the ordinary course of business, (c) the portion of net income (or loss)
of any Person (other than the Company or a Subsidiary), including Unrestricted
Subsidiaries, in which the Company or any Subsidiary has an ownership interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Company or any Subsidiary in cash during such period, (d) for
purposes of calculating Consolidated Adjusted Net Income in Section 4.4, the net
income (or loss) of any Person combined with the Company or any Subsidiary on a
"pooling of interests" basis attributable to any period prior to the date of
combination and (e) the net income of any Subsidiary, to the
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extent that the declaration or payment of dividends or similar distributions by
such Subsidiary is not at the date of determination permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary or its stockholders.
"Consolidated Fixed Charge Coverage Ratio" of the Company
means, for any period, the ratio of (a) the sum of Consolidated Adjusted Net
Income, Consolidated Interest Expense, Consolidated Income Tax Expense and
Consolidated Non-Cash Charges deducted in computing Consolidated Adjusted Net
Income, in each case, for such period, of the Company and all Subsidiaries as
determined on a consolidated basis in accordance with GAAP to (b) such
Consolidated Interest Expense.
"Consolidated Income Tax Expense" means, for any period, the
provision for federal, state, local and foreign income taxes of the Company and
all Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" of the Company means, for any
period, without duplication, the sum of (a) the interest expense of the Company
and its Subsidiaries for such period, including, without limitation, (i)
amortization of debt discount, (ii) the net cost of interest rate contracts
(including amortization of discounts), (iii) the interest portion of any
deferred payment obligation, (iv) amortization of debt costs and (v) accrued
interest and capitalized interest, plus (b) the interest component of
Capitalized Lease Obligations of the Company and its Subsidiaries during such
period, plus (c) cash dividends due (whether or not declared) on Redeemable
Capital Stock by the Company and any Subsidiary (to any Person other than the
Company and any wholly owned Subsidiary), in each case as determined on a
consolidated basis in accordance with GAAP; provided that (x) the Consolidated
Interest Expense attributable to interest on any Indebtedness computed on a pro
forma basis and (A) bearing a floating interest rate shall be computed as if the
rate in effect on the date of computation had been the applicable rate for the
entire period and (B) which was not outstanding during the period for which the
computation is being made but which bears, at the option of the Company, a fixed
or floating rate of interest, shall be computed by applying at the option of the
Company, either the fixed or floating rate, and (y) in making such computation,
the Consolidated Interest Expense attributable to interest on any Indebtedness
under a revolving credit facility computed on a pro forma basis shall be
computed based upon the average daily balance of such Indebtedness during the
applicable period. For purposes of clause (c) of the preceding sentence,
dividends shall be deemed to be an amount equal to the dividends due (whether or
not declared) divided by one minus the applicable actual combined federal,
state, provincial, local and foreign income tax rate of the Company and its
Subsidiaries (expressed as a decimal).
"Consolidated Non-Cash Charges" means, for any period, the
aggregate depreciation, amortization and other non-cash items of the Company and
any Subsidiary reducing Consolidated Adjusted Net Income for such period,
determined on a consolidated basis in
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accordance with GAAP (excluding any such non-cash charge which represents an
accrual of or reserve for cash charges for any future period).
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 10.2 or such other address as to
which the Trustee may give notice to the Company.
"Currency Agreements" means any spot or forward foreign
exchange agreements and currency swap, currency option or other similar
financial agreements or arrangements entered into by the Company or any of its
Subsidiaries in the ordinary course of business and designed to protect against
or manage exposure to fluctuations in foreign currency exchange rates.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors and assigns, or such other depository
institution hereinafter appointed by the Company.
"Disinterested Director" means, with respect to any
transaction or series of transactions in respect of which the Board of Directors
is required to deliver a resolution of the Board of Directors under the
Indenture, a member of the Board of Directors who does not have any material
direct or indirect financial interest in or with respect to such transaction or
series of transactions.
"Euroclear" has the meaning set forth in Section 2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Securities" means the 9 1/4% Senior Notes due 2008,
Series B, to be issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, that are in effect on the date of this Indenture.
"guarantee" means, as applied to any obligation, (a) a
guarantee (other than by endorsement of negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation and (b) an agreement, direct or
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indirect, contingent or otherwise, the practical effect of which is to assure in
any way the payment or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of credit.
"Guarantee" means any guarantee of the Securities by any
Subsidiary in accordance with the provisions of Section 4.10 hereof. When used
as a verb, "Guarantee" shall have a corresponding meaning.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all liabilities of such Person for borrowed money (including
overdrafts) or for the deferred purchase price of property or services,
excluding any trade payables and other accrued current liabilities (including
outstanding disbursements owed to trade creditors) incurred in the ordinary
course of business (whether or not evidenced by a note), but including, without
limitation, all obligations, contingent or otherwise, of such Person in
connection with any letters of credit and acceptances issued under letter of
credit facilities, acceptance facilities or other similar facilities, (b) all
obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments, (c) all indebtedness of such Person created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even if the rights and remedies of the seller
or lender under such agreement in the event of default are limited to
repossession or sale of such property), but excluding trade accounts payable
arising in the ordinary course of business, (d) all Capitalized Lease
Obligations of such Person, (e) all Indebtedness referred to in (but not
excluded from) the preceding clauses of other Persons and all dividends of other
Persons, the payment of which is secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or with respect to property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness (the amount of
such obligation being deemed to be the lesser of the value of such property or
asset or the amount of the obligation so secured), (f) all guarantees by such
Person of Indebtedness referred to in this definition of any other Person, (g)
all Redeemable Capital Stock of such Person valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends and (h) all obligations of such Person under or in respect of Interest
Rate Agreements or Currency Agreements. For purposes hereof, the "maximum fixed
repurchase price" of any Redeemable Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on
any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Redeemable Capital Stock, such Fair Market Value shall be
determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock.
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"Indenture" means this Indenture as amended or supplemented
from time to time.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Securities.
"Interest Rate Agreements" means any interest rate protection
agreements and other types of interest rate hedging agreements or arrangements
(including, without limitation, interest rate swaps, caps, floors, collars and
similar agreements) designed to protect against or manage exposure to
fluctuations in interest rates in respect of Indebtedness.
"Investment" means, with respect to any Person, any direct or
indirect advance, loss or other extension of credit or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase,
acquisition or ownership by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued or owned by,
any other Person and all other items that would be classified as investments on
a balance sheet prepared in accordance with GAAP. In addition, the Fair Market
Value of the net assets of any Subsidiary at the time that such Subsidiary is
designated an Unrestricted Subsidiary shall be deemed to be an "Investment" made
by the Company in such Unrestricted Subsidiary at such time. "Investment" shall
exclude extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices.
"Initial Securities" has the meaning set forth in the preamble
to this Indenture.
"Issue Date" means the date of original issuance of the
Securities.
"Legal Holiday" has the meaning ascribed in Section 10.8.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or preference or priority or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired. A Person shall be deemed to own subject to a Lien
any property which such Person has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale, agreement, capital lease or other
title retention agreement.
"Maturity" means, with respect to any Security, the date on
which any principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity with respect to such principal,
by sinking fund payment or by declaration of acceleration, call for redemption
or purchase or otherwise.
"Maturity Date" means April 15, 2008.
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"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means (a) with respect to any Asset Sale,
the proceeds thereof in the form of cash or Cash Equivalents including payments
in respect of deferred payment obligations, but only when received in the form
of, or stock or other assets when disposed for, cash or Cash Equivalents (except
to the extent that such obligations are financed or sold with recourse to the
Company or any Subsidiary), net of (i) brokerage commissions and other fees and
expenses (including fees and expenses of legal counsel and investment banks)
related to such Asset Sale, (ii) provisions for all taxes payable as a result of
such Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties the subject of such
Asset Sale, (iv) amounts required to be paid to any Person (other than the
Company or any Subsidiary) owning a beneficial interest in the assets subject to
the Asset Sale and (v) appropriate amounts to be provided by the Company or any
Subsidiary, as the case may be, as a reserve required in accordance with GAAP
against any liabilities associated with such Asset Sale and retained by the
Company or any Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as reflected in
an Officers' Certificate delivered to the Trustee and (b) with respect to any
issuance or sale of Capital Stock or options, warrants or rights to purchase
Capital Stock, or debt securities or Redeemable Capital Stock that have been
converted into or exchanged for Qualified Capital Stock, as referred to in
Section 4.4, the proceeds of such issuance or sale in the form of cash or Cash
Equivalents, including payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed for, cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Subsidiary of the Company), net of
attorney's fees, accountant's fees and brokerage, consultation, underwriting and
other fees and expenses actually incurred in connection with such issuance or
sale and net of taxes paid or payable as a result thereof.
"Offering Memorandum" means the Offering Memorandum dated
April 7, 1998 relating to the Securities;
"Officer" means the Chairman of the Board, the President, any
Senior Vice President, any Vice President, the Treasurer or the Secretary of,
the Company or any other officer designated by Board of Directors serving in a
similar capacity.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee and which complies, if
applicable, with Section 10.5. The counsel may be an employee of or counsel to
the Company.
"Paying Agent" has the meaning provided in Section 2.3.
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"Permitted Holders" means Xxxxxxx X. Xxxxxxx, the Related
Parties and/or a trustee or other fiduciary holding Voting Stock under an
employee benefit plan of the Company.
"Permitted Indebtedness" means any of the following:
(a) Indebtedness of the Company in an aggregate principal
amount at any one time outstanding not to exceed $100 million provided
that such Indebtedness is incurred to finance the acquisition of
additional aircraft by the Company and is secured by Liens on such
aircraft;
(b) Indebtedness of the Company outstanding on the Issue Date;
(c) Indebtedness of the Company to any wholly owned
Subsidiary; provided that any Indebtedness of the Company owing to any
such Subsidiary is made pursuant to an intercompany note and is
subordinated in right of payment from and after such time as the
Securities shall become due and payable (whether at Stated Maturity,
upon acceleration or otherwise) to the payment and performance of the
Company's obligations under the Securities; provided further, that any
disposition, pledge or transfer of any such Indebtedness to a Person
(other than the Company or another wholly owned Subsidiary) shall be
deemed to be an incurrence of such Indebtedness by the Company not
permitted by this clause (c);
(d) Indebtedness of the Company under Currency Agreements and
Interest Rate Agreements entered into in the ordinary course of
business, provided that the notional amount of such obligations does
not exceed the amount of the related obligation on Indebtedness
outstanding or committed to be incurred on the date such Currency
Agreement or Interest Rate Agreements are entered into;
(e) any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") by
the Company of any Indebtedness of the Company pursuant to clause (b)
of this definition, including any successive refinancings by the
Company, so long as (i) any such new Indebtedness shall be in a
principal amount that does not exceed the principal amount (or, if such
Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of
determination) so refinanced, plus the amount of any premium required
to be paid in connection with such refinancing pursuant to the terms of
the Indebtedness refinanced or the amount of any premium reasonably
determined by the Company as necessary to accomplish such refinancing,
plus the amount of expenses of the Company incurred in connection with
such refinancing, (ii) in the case of any refinancing of Subordinated
Indebtedness, such new Indebtedness is made subordinate to the
Securities at least to the same extent as the Indebtedness being
refinanced and (iii) such new Indebtedness has no scheduled principal
payments prior to the final Stated Maturity of the Securities;
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(f) Indebtedness of the Company in addition to any amounts
listed in clauses (a) through (e) above in an aggregate principal
amount at any one time outstanding not to exceed $20 million less the
amount of Permitted Subsidiary Indebtedness then outstanding pursuant
to clause (f) of the definition thereof;
(g) Indebtedness under the Securities and this Indenture;
(h) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within two business
days of incurrence; and
(i) Indebtedness of the Company and its Subsidiaries incurred
in connection with the acquisition of ten new Boeing 747-400 aircraft
pursuant to the Boeing Purchase Contract provided that such
Indebtedness shall not exceed 80% of Appraised Fair Market Value of
such aircraft at the time of borrowing, neither individually nor in the
aggregate.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any wholly owned Subsidiary;
(c) Investments in Subsidiaries and Unrestricted Subsidiaries
in an amount not to exceed $20 million in aggregate which Subsidiaries
or Unrestricted Subsidiaries are in the business of the Company as
conducted on the Issue Date or, a business reasonably related thereto
or involved in outsourcing for the air cargo industry or the leasing of
aircraft to the Company;
(d) Investments by the Company or any Subsidiary in another
Person, if as a result of such Investment (i) such other Person becomes
a wholly owned Subsidiary or (ii) such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially
all of its assets to, the Company or a wholly owned Subsidiary;
(e) Currency Agreements and Interest Rate Agreements;
(f) Loans and advances to employees and officers of the
Company and its Subsidiaries in the ordinary course of business not in
excess of $2.0 million at any one time outstanding;
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(g) Investments in securities of trade creditors or customers
received pursuant to a plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such trade creditors or customers;
(h) Investments existing on the Issue Date; or
(i) Investments by the Company in AFL II.
"Permitted Liens" means the following types of Liens:
(a) Liens existing as of the date of this Indenture;
(b) Liens on any property or assets of a wholly owned
Subsidiary granted in favor of the Company or any other wholly owned
Subsidiary;
(c) Liens on property acquired after the date of this
Indenture that secures Indebtedness permitted to be incurred pursuant
to Section 4.3 and provided further that such Liens shall not extend to
any other property of the Company or its Subsidiaries;
(d) statutory Liens of landlords and carrier's,
warehouseman's, mechanics, supplier's, materialmen's, repairmen's or
other like Liens arising in the ordinary course of business and with
respect to amounts not yet delinquent or being contested in good faith
by appropriate proceeding, if a reserve or other appropriate provision,
if any, as shall be required in conformity with GAAP shall have been
made therefor;
(e) Liens for taxes, assessments, government charges or claims
that are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and if a reserve or other
appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor;
(f) Liens incurred or deposits made to secure the performance
of tenders, bids, leases, statutory obligations, surety and appeal
bonds, government contracts, performance bonds and other obligations of
a like nature incurred in the ordinary course of business (other than
contracts for the payment of money);
(g) easements, rights-of-way, restrictions and other similar
charges or encumbrances not interfering in any material respect with
the business of the Company or any Subsidiary incurred in the ordinary
course of business;
(h) Liens arising by reason of any judgment, decree or order
of any court so long as such Lien is adequately bonded and any
appropriate legal proceedings that may have been duly initiated for the
review of such judgment, decree or order shall not have
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been finally terminated or the period within which such proceedings may
be initiated shall not have expired; and
(i) any extension, renewal or replacement, in whole or in
part, of any Lien described in the foregoing clauses (a) through (i);
provided that any such extension, renewal or replacement shall be no
more restrictive in any material respect that the Lien so extended,
renewed or replaced and shall not extend to any additional property or
assets.
"Permitted Subsidiary Indebtedness" means any of the
following:
(a) Indebtedness of Subsidiaries outstanding on the Issue
Date;
(b) Indebtedness of any Subsidiary under Currency Agreements
and Interest Rate Agreements, provided that the notional principal
amount of such obligations does not exceed the amount of Indebtedness
outstanding or committed to be incurred on the date such Currency
Agreements or Interest Rate Agreements are entered into;
(c) Indebtedness of any wholly owned Subsidiary to any other
wholly owned Subsidiary or to the Company;
(d) any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") by
any Subsidiary of any Indebtedness of such Subsidiary pursuant to
clause (a) of this definition, including any successive refinancings by
such Subsidiary, so long as any such new Indebtedness shall be in a
principal amount that does not exceed the principal amount (or, if such
Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of
determination) so refinanced plus the amount of any premium required to
be paid in connection with such refinancing pursuant to the terms of
the Indebtedness refinanced or the amount of any premium reasonably
determined by such Subsidiary as necessary to accomplish such
refinancing, plus the amount of expenses of such Subsidiary incurred in
connection with such refinancing;
(e) guarantees by Subsidiaries of Indebtedness of the Company
entered into in accordance with Section 4.10 and guarantees by
Subsidiaries of Permitted Subsidiary Indebtedness of wholly owned
Subsidiaries; and
(f) Indebtedness of Subsidiaries in addition to any amounts
listed in clauses (a) through (e) above in an aggregate principal
amount at any one time outstanding not to exceed $20 million, less the
amount of Permitted Indebtedness then outstanding pursuant to clause
(f) of the definition thereof.
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"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Securities" has the meaning provided in Section 2.1.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated)
of such person's preferred or preference stock whether outstanding on the date
of this Indenture, or issued thereafter, and including, without limitation, all
classes and series of preferred or preference stock of such Person.
"Private Placement Legend" has the meaning provided in Section
2.15.
"Proceeds Purchase Date" has the meaning provided in Section
4.8.
"QIB" means any "qualified institutional buyer" (as defined
under the Securities Act).
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"Record Date" means the record dates specified in the
Securities, whether or not a Legal Holiday.
"Redeemable Capital Stock" means any class or series of
Capital Stock that, either by its terms, by the terms of any security into which
it is convertible or exchangeable or by contract or otherwise is, or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the final Stated Maturity of the Securities or is redeemable at the option of
the holder thereof at any time prior to such final Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to such
final Stated Maturity.
"Redemption Date" when used with respect to any security,
means the date fixed for such redemption pursuant to this Indenture and the
Securities delivered pursuant to Section 3.3 as the date on which the Company
has elected to redeem all of the Securities pursuant to paragraph 7 of the
Securities after the occurrence of a Change of Control.
"Registrar" has the meaning provided for in Section 2.3.
"Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated April 9, 1998, between the Company and
Placement Agents.
"Regulation S" means Regulation S under the Securities Act.
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"Regulation S Global Note" has the meaning set forth in
Section 2.1.
"Related Parties" means (a) the spouse, children or other
descendants (by blood or adoption), stepchildren, siblings, and in-laws of
Xxxxxxx X. Xxxxxxx or the spouse of Xxxxxxx X. Xxxxxxx; (b) the heirs, legatees,
devisees, distributees, personal representatives, or the estate of Xxxxxxx X.
Xxxxxxx or of persons listed in the foregoing clause (a); (c) any trust
primarily for the benefit of Xxxxxxx X. Xxxxxxx or any of the persons or
entities listed in the foregoing clauses of this definition; (d) any trust,
corporation, limited or general partnership, limited liability company or
partnership or other entity of which Xxxxxxx X. Xxxxxxx and/or any of the other
persons or entities listed in the foregoing clauses of this definition are the
beneficial owners (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time) of a controlling
interest in the outstanding voting and equity securities or interests; (e) a
transferee pursuant to a decree of dissolution of marriage relating to Xxxxxxx
X. Xxxxxxx or a Person that has been immediately prior to the disposition a
Related Party under any clause of this definition; or (f) a transferee by
disposition in an involuntary manner without the consent of Xxxxxxx X. Xxxxxxx
or a Person that has been immediately prior to the disposition a Related Party
under any clause of this definition, including, but not limited to, disposition
under judicial orders.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Period" means 40 days after the later of
commencement of the offering of the Securities and the Issue Date.
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee
shall be entitled to request and conclusively rely on an Opinion of Counsel with
respect to whether any Security constitutes a Restricted Security.
"Rule 144A Global Note" has the meaning set forth in Section
2.1.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc., and its successors.
"Securities" means the Initial Securities and the Exchange
Securities treated as a single class of securities, as amended or supplemented
from time to time in accordance with the terms hereof, that are issued pursuant
to this Indenture.
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"Securities Act" means the Securities Act of 1933, as amended
and the rules and regulations of the Commission promulgated thereunder.
"Significant Subsidiary" means any Subsidiary of the Company
that, together with its Subsidiaries, (i) for the most recent fiscal year of the
Company, accounted for more than 10% of the consolidated revenues of the Company
and its Subsidiaries or (ii) as of the end of such fiscal year, was the owner of
more than 10% of the consolidated assets of the Company and its Subsidiaries,
all as set forth on the most recently available consolidated financial
statements of the Company for such fiscal year.
"Stated Maturity" means, when used with respect to the
Securities or any installment of interest thereon, the date specified in the
Security as the fixed date on which the principal of the Security or such
installment of interest is due and payable, and, when used with respect to any
other Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
that is expressly subordinated in right of payment to the Securities.
"Subsidiary" means any Person a majority of the equity
ownership or Voting Stock of which is at the time owned, directly or indirectly,
by the Company or by one or more other Subsidiaries or by the Company and one or
more other Subsidiaries. For purposes of this Indenture, the term Subsidiary
shall not include any Unrestricted Subsidiary, except in the definition of
Unrestricted Subsidiary.
"Surviving Entity" has the meaning provided in Section 5.1.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that, in the event the Trust Indenture Act of 1939 is amended after such date,
"TIA" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trustee" means the party named as such in the preamble to
this Indenture until a successor replaces it in accordance with the provisions
of Article VII of this Indenture and, thereafter, means the successor.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"Unrestricted Subsidiary" means (a) any Subsidiary of the
Company that at the time of determination shall be an Unrestricted Subsidiary
(as designated by the Board of Directors of the Company, as provided below) and
(b) any Subsidiary of an Unrestricted Subsidiary and (c)
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Atlas Freighter Leasing, Inc. and Atlas Freighter Leasing II, Inc. ("AFL II")
are Unrestricted Subsidiaries as of the Issue Date. The Board of Directors of
the Company may designate any Subsidiary (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary so long as (i) neither the
Company nor any Subsidiary is directly or indirectly liable for any Indebtedness
of such Subsidiary, (ii) no default with respect to any Indebtedness of such
Subsidiary would permit (upon notice, lapse of time or otherwise) any holder of
any other Indebtedness of the Company or any Subsidiary to declare a default on
such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity, (iii) any Investment in such Subsidiary
made as a result of designation of such Subsidiary an Unrestricted Subsidiary or
otherwise was permitted under paragraph (a), clause (iv) of Section 4.4, (iv)
neither the Company nor any Subsidiary has a contract, agreement, arrangement,
understanding or obligation of any kind, whether written or oral, with such
Subsidiary other than those that might be obtained at the time from Persons who
are not affiliates of the Company, and (v) neither the Company nor any
Subsidiary has any obligation (1) to subscribe for additional shares of Capital
Stock or other equity interests in such Subsidiary, or (2) to maintain or
preserve such Subsidiary's financial condition or to cause such Subsidiary to
achieve certain levels of operating results. Any such designation by the Board
of Directors of the Company shall be evidenced to the Trustee by filing a board
resolution with the Trustee giving effect to such designation. The Board of
Directors of the Company may designate any Unrestricted Subsidiary as a
Subsidiary if immediately after giving effect to such designation, there would
be no Default or Event of Default under this Indenture and the Company could
incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.3.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"Voting Stock" means, with respect to any Person, any class or
classes of Capital Stock pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such Person (irrespective of whether
or not, at the time, stock of any other class or classes shall have, or might
have, voting power by reason of the happening of any contingency).
SECTION 1.2. Other Definitions.
Defined in
Term Section
---- -------
"Agent Members" 2.16
"Change of Control Purchase Date" 4.9
"Change of Control Purchase Price" 4.9
"covenant defeasance" 8.1(b)
"Custodian" 6.1
"Event of Default" 6.1
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"Excess Proceeds" 4.8(b)
"Excess Proceeds Offer" 4.8(c)
"Global Notes" 2.1
"incur" 4.3(a)
"legal defeasance" 8.1(b)
"Offered Price" 4.8(c)
"Replacement Assets" 4.8(b)
"Restricted Payment" 4.4
"Rule 144A" 2.1
"Surviving Entity 5.1
SECTION 1.3. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, and
any other obligor on the securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by the TIA reference to another statute or defined under rules
promulgated by the Commission have the meanings assigned to them by such
definitions.
SECTION 1.4. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
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(5) words in the singular include the plural and words in the
plural include the singular;
(6) references to Article and Section numbers refers to the
corresponding Articles and Sections of this Indenture unless otherwise
specified; and
(7) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
ARTICLE II
The Securities
SECTION 2.1. Form and Dating. The Initial Securities, and the
Trustee's certificate of authentication thereon shall be substantially in the
form of Exhibit A hereto. The Exchange Securities, and the Trustee's certificate
of authentication thereon shall be substantially in the form of Exhibit B
hereto. The Securities may have notations, legends or endorsements required by
law, stock exchange rule or Depository rule or usage. The Company and the
Trustee shall approve the form of the Securities and any notation, legend or
endorsement on them. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the forms of the
Securities annexed hereto as Exhibits A and B, shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A under the
Securities Act ("Rule 144A") shall be issued initially in the form of one or
more permanent global notes in registered form, in substantially the form set
forth in Exhibit A (the "Rule 144A Global Note"), deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the Rule
144A Global Note may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary, as
hereinafter provided. Securities offered and sold in reliance on Regulation S
under the Securities Act shall be issued in the form of one or more permanent
global notes in registered form in substantially the form set forth in Exhibit A
with the legend set forth in Exhibit A-2 (the "Regulation S Global Note" and
together with the 144A Global Note, the "Global Notes"). The Regulation S Global
Note, which shall be deposited with the Trustee, as custodian for the
Depositary, and registered in the name of the Depositary or the nominee of the
Depositary for the accounts of designated agents holding on behalf of the
Euroclear System ("Euroclear") or Cedel Bank, S.A. ("Cedel Bank"). The aggregate
principal amount of the Regulation S Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, as hereinafter provided.
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Securities issued in exchange for interests in the Rule 144A
Global Note pursuant to Section 2.17 may be issued in the form of permanent
certificated Securities in registered form in substantially the form set forth
in Exhibit A (the "Physical Securities").
Each of the Global Notes shall represent such amount of the
outstanding Securities as shall be specified therein and each shall provide that
it shall represent the aggregate amount of outstanding Securities from time to
time endorsed thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Securities represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section
2.6 hereof.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the
"Management Resolutions" and "Instructions to Participants" of Cedel Bank shall
be applicable to interests in the Regulation S Global Notes that are held by the
Agent Members through Euroclear or Cedel Bank.
SECTION 2.2. Execution and Authentication. (a) Two Officers of
the Company, or one Officer shall sign, and one Officer or an Assistant
Secretary (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to, the Securities for the Company by
manual or facsimile signature. If an Officer whose signature is on a Security no
longer holds that office at the time the Security is authenticated, the Security
shall nevertheless be valid.
(b) A Security shall not be valid until authenticated by the
manual signature of the Trustee. The signature of the Trustee shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
(c) The Trustee shall authenticate (i) Initial Securities for
original issue in the aggregate principal amount not to exceed $175,000,000, and
(ii) Exchange Securities from time to time for issue only in exchange for a like
principal amount of Initial Securities, in each case upon receipt of a written
order of the Company. Each such written order shall specify the amount of
Securities to be authenticated and the date on which the Securities are to be
authenticated, whether the Securities are to be Initial Securities or Exchange
Securities and whether the Securities are to be issued as Physical Securities or
Global Notes and such other information as the Trustee may reasonably request.
The aggregate principal amount of Securities outstanding at any time may not
exceed $175,000,000.
(d) The Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference
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in this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to deal with
the Company or an Affiliate.
(e) The Securities shall be issuable in fully registered form
only, without coupons, in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.3. Registrar and Paying Agent. (a) The Company shall
maintain an office or agency (which shall be located in the Borough of Manhattan
in the City of New York, State of New York) where (i) Securities may be
presented for registration of transfer or for exchange ("Registrar"), (ii)
Securities may be presented for payment ("Paying Agent") and (iii) notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Securityholder. The Company shall
notify the Trustee and the Trustee shall notify the Securityholders of the name
and address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company may act as Paying Agent, Registrar or
co-registrar. The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which shall incorporate the provisions
of the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such, and shall be entitled to appropriate compensation in accordance with
Section 7.7.
(b) The Company initially appoints the Trustee as Registrar,
Paying Agent, authenticating agent and agent for service of notices and demands
in connection with the Securities. The Trustee's address for purposes of Section
2.3(a) is 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(c) Any of the Registrar, the Paying Agent or any other agent
may resign upon 30 days' notice to the Company. The office of the Paying Agent
as Registrar for purposes of this Section 2.03 shall initially be at 00
Xxxxxxxx, Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx.
SECTION 2.4. Paying Agent to Hold Money in Trust. The Company
or any other obligor on the Securities shall require each Paying Agent other
than the Trustee to agree in writing that the Paying Agent shall hold in trust
for the benefit of the Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of, premium, if any, and interest on
the Securities, and shall notify the Trustee of any Default by the Company or
any other obligor on the Securities in making any such payment. While any such
Default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company or any other obligor on the Securities at any
time may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company) shall
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have no further liability for the money delivered to the Trustee. If the Company
or any other obligor on the Securities acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Securityholders all
money held by it as Paying Agent.
SECTION 2.5. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders and shall otherwise comply
with TIA Section 312(a). If the Trustee is not the Registrar, the Company or any
other obligor on the Securities shall furnish to the Trustee at least five
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders,
including the aggregate principal amount of the Securities held by each thereof,
and the Company or any other obligor on the Securities shall otherwise comply
with TIA Section 312(a).
SECTION 2.6. Transfer and Exchange. (a) Subject to Sections
2.16 and 2.17 where Securities are presented to the Registrar or a co-registrar
with a request to register the transfer thereof or exchange them for an equal
principal amount of Securities of other denominations, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met; provided, that any Security presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar and the
Trustee duly executed by the Securityholder thereof or his attorney duly
authorized in writing. To permit registrations of transfer and exchanges, the
Company shall issue and the Trustee shall authenticate Securities at the
Registrar's request.
(b) The Company and the Registrar shall not be required (i) to
issue, to register the transfer of or to exchange Securities during a period
beginning at the opening of business on a Business Day 15 days before the day of
any selection of Securities for redemption pursuant to Article 3 and ending at
the close of business on the day of selection, (ii) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part or (iii) to
register the transfer or exchange of a Security between the Record Date and the
next succeeding Interest Payment Date.
(c) No service charge shall be made for any registration of a
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment by the Securityholder of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge payable upon
exchanges pursuant to Section 2.10, 3.6 or 9.5).
(d) Any Holder of either of the Global Notes shall, by
acceptance of such Global Note, agree that transfers of beneficial interests in
such Global Note may be effected only through a book entry system maintained by
the Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Global Note shall be required to be reflected in a
book entry.
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SECTION 2.7. Replacement Securities. (a) If any mutilated Security is
surrendered to the Trustee, or the Company and the Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any Security, the Company
shall issue and the Trustee, upon receipt by it of the written order of the
Company signed by two Officers of the Company, shall authenticate a replacement
Security if the Trustee's requirements for replacements of Securities are met.
If required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the reasonable judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent or any authenticating
agent from any loss which any of them may suffer if a Security is replaced. The
Company and the Trustee may charge a Securityholder for reasonable out-of-pocket
expenses in replacing a Security, including fees and expenses of counsel.
(b) Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
SECTION 2.8. Outstanding Securities. (a) The Securities outstanding at
any time are all the Securities authenticated by the Trustee except for those
cancelled by the Company or by the Trustee, those delivered to the Trustee for
cancellation and those described in this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless and until the Trustee receives proof satisfactory to it that
the replaced Security is held by a bona fide purchaser.
(c) If the principal amount of any Security is considered paid under
Section 4.1, it ceases to be outstanding and interest on it ceases to accrue.
(d) Subject to Section 2.9, a Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
(e) If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender sufficient to pay all of the principal, premium, if any, and
interest due on the Securities payable on that date and is not prohibited from
paying such money to the Securityholders thereof pursuant to the terms of this
Indenture, then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue.
SECTION 2.9. Treasury Securities. In determining whether the Holders of
the required principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Company, or any of their respective
Affiliates shall be considered as though not outstanding, except that for
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which a Responsible Officer
knows to be so owned shall be so considered.
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SECTION 2.10. Temporary Securities. Until definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company and the Trustee
consider appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee, upon receipt of the written order of the
Company signed by two Officers of the Company, or one Officer shall sign, and
one Officer or an Assistant Secretary (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall authenticate,
pursuant to Section 2.02, definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges under this Indenture as definitive
Securities.
SECTION 2.11. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and Paying Agent shall
forward to the Trustee any Securities surrendered to them for registration of
transfer, exchange or payment. The Trustee shall cancel all Securities, if not
already cancelled, surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy cancelled Securities (subject to
the record retention requirement of the Exchange Act), and deliver certification
of their destruction to the Company, unless by a written order, signed by two
Officers of the Company, or one Officer shall sign, and one Officer or an
Assistant Secretary (each of whom shall, in each case, have been duly authorized
by all requisite corporate actions), the Company shall direct that cancelled
Securities be returned to it. Subject to Section 2.07 the Company may not issue
new Securities to replace Securities that it has redeemed or paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Company defaults in a payment
of interest on the Securities, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest payable on the defaulted interest,
to the Persons who are Securityholders on a subsequent special record date,
which date shall be at the earliest practicable date but in all events at least
five Business Days prior to the payment date, in each case at the rate provided
in the Securities and in Section 4.1. The Company shall, with the consent of the
Trustee, fix or cause to be fixed each such special record date and payment
date. At least 15 days before the special record date, the Company (or the
Trustee, in the name of and at the expense of the Company) shall mail to
Securityholders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.13. CUSIP Number. The Company in issuing the Securities may
use a "CUSIP" number, and if so, the Trustee shall use the CUSIP number in
notices of redemption or exchange as a convenience to Securityholders; provided,
that no representation shall be deemed to be made by the Trustee as to the
correctness or accuracy of the CUSIP number printed in the notice or on the
Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company shall promptly notify the Trustee
of any change in the CUSIP number.
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SECTION 2.14. Deposit of Moneys. Prior to 11:00 a.m. New York City time
on each Interest Payment Date and Maturity Date, the Company shall have
deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments, if any, due on such Interest Payment Date or Maturity
Date, as the case may be, in a timely manner which permits the Paying Agent to
remit payment to the Securityholders on such Interest Payment Date or Maturity
Date, as the case may be.
SECTION 2.15. Restrictive Legends. Each Global Note and Physical
Security that constitutes a Restricted Security shall bear the following legend
(the "Private Placement Legend") on the face thereof until April 9, 2000 unless
otherwise agreed by the Company and the Securityholder thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. 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)
OR (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 SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE
TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS
IN EFFECT ON THE DATE OF THE TRANSFER OF THIS SECURITY, RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON
ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM
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THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF SECURITIES OF LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD REFERRED TO ABOVE, 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, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE ISSUER 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 IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. 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.
Each Global Note shall also bear the following legend on the face
thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF
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SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE, TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
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.
The Regulation S Global Note shall bear the following legend on the
face thereof:
THIS SECURITY MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON (AS SUCH TERM
IS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) OR FOR THE ACCOUNT
OR BENEFIT OF A U.S. PERSON PRIOR TO THE EXPIRATION OF THE RESTRICTED
PERIOD (AS DEFINED IN THE INDENTURE), AND NO TRANSFER OR EXCHANGE OF
THIS SECURITY MAY BE MADE FOR AN INTEREST IN A PHYSICAL SECURITY UNTIL
AFTER THE LATER OF THE DATE OF EXPIRATION OF THE RESTRICTED PERIOD AND
THE DATE ON WHICH THE PROPER REQUIRED CERTIFICATION RELATING TO SUCH
INTEREST HAS BEEN PROVIDED IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE, TO THE EFFECT THAT
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THE BENEFICIAL OWNER OR OWNERS OF SUCH INTEREST ARE NOT U.S. PERSONS.
SECTION 2.16. Book-Entry Provisions for Global Security. (a) Each
Global Note initially shall (i) be registered in the name of the Depositary or
the nominee of such Depositary, (ii) be delivered to the Trustee as custodian
for such Depositary and (iii) bear legends as set forth in Section 2.15.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.
(b) Transfers of a Global Note shall be limited to transfers in whole,
but not in part, to the Depositary, its successors or their respective nominees.
Interest of beneficial owners in a Global Note may be transferred or exchanged
for Physical Securities in accordance with the rules and procedures of the
Depositary, the provisions of Section 2.17 and the limitation set forth in
Section 2.1 with regard to the Regulation S Global Note. In addition, Physical
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Note if (i) the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for the Global Note and
a successor depository is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Depositary to issue Physical
Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Notes to beneficial owners pursuant to
paragraph (b) above, the Registrar shall (if one or more Physical Securities are
to be issued) reflect on its books and records the date and a decrease in the
principal amount of the beneficial interest in the Global Note to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to paragraph (b) above, a Global Note shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
such Global Note, an equal aggregate principal amount of Physical Securities of
authorized denominations.
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(e) Any Physical Security constituting a Restricted Security delivered
in exchange for an interest in the Global Note pursuant to paragraph (b) or (c)
above shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of
Section 2.17, bear the legend regarding transfer restrictions applicable to the
Physical Securities set forth in Section 2.15.
(f) The Holder of a Global Note 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 Securityholder is
entitled to take under this Indenture or the Securities.
SECTION 2.17. Special Transfer Provisions.
(a) Transfers of Global Notes; Transfers to Non-QIB Institutional
Accredited Investors and Non-U.S. Persons. The following provisions shall apply
with respect to the registration of any proposed transfer of a Security
constituting of a Restricted Security to any Institutional Accredited Investor
which is not a QIB or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears the
Private Placement Legend, if (x) the requested transfer is after April 9,
2000; provided, however, that neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Security, or portion
thereof, at any time on or prior to April 9, 2000 or (y) (1) in the case of
a transfer to an Institutional Accredited Investor which is not a QIB
(excluding Non-U.S. Persons), the proposed transferee has delivered to the
Registrar a certificate substantially in the form of Exhibit C hereto or (2)
in the case of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
Exhibit D hereto; and
(ii) if the proposed transferor is an Agent Member holding a beneficial
interest in the Rule 144A Global Note, upon receipt by the Registrar of (x)
the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depositary's and the Registrar's
procedures, (a) the Registrar shall reflect on its books and records the
date and (if the transfer does not involve a transfer of outstanding
Physical Securities) a decrease in the principal amount of the Rule 144A
Global Note in an amount equal to the principal amount of the beneficial
interest in the Rule 144A Global Note to be transferred, and (b)(1) the
Company shall execute and the Trustee shall authenticate and deliver one or
more Physical Securities of like tenor and amount or (2) the Registrar shall
reflect on its books and records the date and (if the transfer does not
involve a transfer of outstanding Physical Securities) an increase in the
principal amount of the Regulation S Global Note in an amount equal to the
principal amount of the beneficial interest in the Rule 144A Global Note to
be transferred.
(iii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Regulation S Global Note, upon receipt by the
Registrar of (x) the certificate, if any,
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required by paragraph (i) above and (y) instructions given in
accordance with the Depositary's and the Registrar's procedures, (a) the
Registrar shall reflect on its books and records the date and (if the
transfer does not involve a transfer of outstanding Physical Securities) a
decrease in the principal amount of the Regulation S Global Note in an
amount equal to the principal amount of the beneficial interest in the
Regulation S Global Note to be transferred, and (b)(1) the Company shall
execute and the Trustee shall authenticate and deliver one or more Physical
Securities of like tenor and amount or (2) the Registrar shall reflect on
its books and records the date and (if the transfer does not involve a
transfer of outstanding Physical Securities) an increase in the principal
amount of the Rule 144A Global Note in an amount equal to the principal
amount of the beneficial interest in the Rule 144A Global Note to be
transferred.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is being
made by a proposed transferor who has advised the Company and the Registrar
in writing, that the sale has been effected in compliance with the
provisions of Rule 144A to a transferee who has advised the Company and the
Registrar in writing, that it is purchasing the Security for its own account
or an account with respect to which it exercises sole investment discretion
and that any such account is a QIB within the meaning of Rule 144A, and it
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
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; and
(ii) if the proposed transferee is an Agent Member and the Securities
to be transferred consist of Physical Securities which after transfer are to
be evidenced by an interest in the Rule 144A Global Note, upon receipt by
the Registrar of instructions given in accordance with the Depositary'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 Rule 144A
Global Note in an amount equal to principal amount of the Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred.
(c) Transfers to Non-U.S. Persons. The following provisions shall apply
with respect to the registration of any proposed transfer of a Security
constituting a Restricted Security to a Non-U.S. Persons:
(i) the Registrar shall register the transfer if such transfer is being
made by a proposed transferor who has advised the Company and the Registrar
in writing, that the sale has been effected in compliance with the
provisions of Regulation S to a transferee
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who has advised the Company and the Registrar in writing, that it is
purchasing the Security in compliance with Rule 904 under the Securities
Act, and it is aware that the sale to it is being made in reliance on
Regulation S and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Regulation S; and
(ii) if the proposed transferee is an Agent Member and the Securities
to be transferred consist of Physical Securities which after transfer are to
be evidenced by an interest in the Regulation S Global Note, upon receipt by
the Registrar of instructions given in accordance with the Depositary'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 Regulation S
Global Note in an amount equal to principal amount of the Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred.
(d) Private Placement Legend. Upon the registration of the transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the registration of the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall deliver
only Securities that bear the Private Placement Legend unless (i) the
circumstance contemplated by paragraph (a)(i)(x) of this Section 2.17 exists or
(ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee 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.
(e) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain for at least two years copies of all
letters, notices and other written communications received pursuant to Section
2.16 or this Section 2.17. The Company 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.
SECTION 2.18. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer and subject to Section 2.12, the Company,
the Trustee, any Paying Agent, any Registrar and any co-registrar may deem and
treat the Person in whose name any Security shall be registered upon the
register of Securities kept by the Registrar as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any
notation of the ownership or other writing thereon made by anyone other than the
Company, any Registrar or any co-registrar) for the purpose of receiving
payments of principal of or interest on
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such Security and for all other purposes; and none of the Company, the Trustee,
any Paying Agent, any Registrar or any co-registrar shall be affected by any
notice to the contrary.
SECTION 2.19. Record Date. The record date for purposes of determining
the identity of Securityholders entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture shall be the later
of (i) 30 days prior to the first solicitation of such consent or (ii) the date
of the most recent list of Holders furnished to the Trustee, if applicable,
pursuant to Section 2.5.
ARTICLE III
Redemption
SECTION 3.1. Notices to Trustee. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the Redemption Date and the principal amount of Securities
to be redeemed.
The Company shall give each notice to the Trustee provided for in this
Section at least 45 days before the Redemption Date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate from the Company to the effect that such redemption will comply with
the conditions herein.
SECTION 3.2. Selection of Securities to be Redeemed. If fewer than all
the Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed in compliance with the requirements of the principal national
securities exchange, if any, on which such Securities are listed, or if such
Securities are not then listed on a national securities exchange, on a pro rata
basis, by lot or by such other method, if any, and that the Trustee in its sole
discretion considers fair and appropriate; provided, however, that if a partial
redemption is made with the proceeds of a Public Equity Offering, selection of
the Securities or portion thereof for redemption shall be made by the Trustee
only on a pro rata basis unless such method is otherwise prohibited. The Trustee
shall make the selection from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000. Securities and portions
of them the Trustee selects shall be in amounts of $1,000 or a whole multiple of
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company in writing promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but not more than
60 days before a date for redemption of Securities, the Company shall mail a
notice of redemption by first-class mail to each Holder of Securities to be
redeemed, at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
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(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any, to
be paid;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption;
(6) that, unless the Company defaults in making such redemption payment
or the Paying Agent is prohibited from making such payment pursuant to the
terms of this Indenture, interest on Securities (or portion thereof) called
for redemption ceases to accrue on and after the redemption date;
(7) the CUSIP number, if any, printed on the Securities being redeemed;
(8) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion shall be
issued; and
(8) the paragraph of the Securities and/or Section of this Indenture
pursuant to which the Securities called for redemption are being redeemed.
At the Company's request made in writing to the Trustee at least 45
days (unless a shorter period is acceptable to the Trustee) prior to the date
fixed for redemption, the Trustee shall give the notice of redemption in the
name and the expense of the Company to each Holder whose Securities are to be
redeemed at the last address for such Holder then shown on the registry books.
In such event, the Company shall provide the Trustee with the information
required by this Section.
SECTION 3.4. Effect of Notice of Redemption. Once notice of redemption
is mailed, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest to the redemption date; provided,
that if the redemption date is after a regular Record Date and on or prior to
the Interest Payment Date, the accrued interest shall be payable to the
Securityholder of the redeemed
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Securities registered on the relevant Record Date. Failure to give notice or any
defect in the notice to any Holder shall not affect the validity of the notice
to any other Holder.
SECTION 3.5. Deposit of Redemption Price. (a) Prior to 11:00 a.m., New
York City time, on the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price of
and accrued interest on all Securities to be redeemed on that date. The Trustee
or the Paying Agent shall promptly return to the Company any money deposited
with the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption price of, and accrued interest on, all
Securities to be redeemed.
(b) Except as set forth in the last sentence of this paragraph, on and
after the redemption date, interest ceases to accrue on the Securities or the
portions of Securities called for redemption. If a Security is redeemed on or
after an interest Record Date but on or prior to the related Interest Payment
Date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Security was registered at the close of business on such record date.
If any Security called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate provided in the
Securities and in Section 4.1.
SECTION 3.6. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate for and in the name of the Holder (at the Company's expense), a new
Security equal in a principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE IV
Covenants
SECTION 4.1. Payment of Securities. The Company shall promptly pay the
principal of, premium, if any, and interest on the Securities on the dates and
in the manner provided in the Securities and in this Indenture. Principal,
premium, if any, and interest shall be considered paid on the date due if on
such date the Trustee or the Paying Agent holds in accordance with this
Indenture money sufficient to pay all principal and interest then due and the
Trustee or the Paying Agent, as the case may be, is not prohibited from paying
such money to the Securityholders on that date pursuant to the terms of this
Indenture. Interest will be computed on the basis of a 360 day year comprised of
twelve 30 day months.
The Company shall pay interest (including post-position interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate specified
therefor in the Securities, and it shall pay interest (including post-position
interest in any proceeding under any Bankruptcy
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Law) on overdue installments of interest (without regard to any applicable grace
period) at the same rate to the extent lawful.
SECTION 4.2. Reports. (a) The Company will file on a timely basis with
the Commission, to the extent such filings are accepted by the Commission and
whether or not the Company has a class of securities registered under the
Exchange Act, the annual reports, quarterly reports and other documents that the
Company would be required to file if it were subject to Section 13 or 15 of the
Exchange Act.
(b) The Company will also be required (a) to file with the Trustee, and
provide to each holder of Securities, without cost to such holder, copies of
such reports and documents within 15 days after the date on which the Company
files such reports and documents with the Commission or the date on which the
Company would be required to file such reports and documents if the Company were
so required, and (b) if the filing of such reports and documents with the
Commission is not accepted by the Commission or is prohibited under the Exchange
Act, to supply at the Company's cost copies of such reports and documents to any
prospective holder of Securities promptly upon written request. The Company will
also comply with the other provisions of TIA Section 314(a).
SECTION 4.3. Limitation on Incurrence of Additional Indebtedness. (a)
The Company will not create, issue, assume, guarantee or in any manner become
directly or indirectly liable for the payment of, or otherwise incur
(collectively, "incur"), any Indebtedness (including any Acquired Indebtedness)
other than Permitted Indebtedness unless, at the time of any such incurrence,
the Consolidated Fixed Charge Coverage Ratio would have been at least equal to
2.75 to 1.0 (after giving pro forma effect to (i) the incurrence of such
Indebtedness and (if applicable) the application of the net proceeds therefrom,
including to refinance other Indebtedness, as if such Indebtedness was incurred
and the application of such proceeds occurred on the first day of the period for
which the Consolidated Fixed Charge Coverage Ratio is calculated, (ii) the
incurrence, repayment or retirement of any other Indebtedness by the Company or
any Subsidiary since the first day of such period as if such Indebtedness was
incurred, repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Indebtedness under any revolving credit
facility shall be computed based upon the average daily balance of such
Indebtedness during such period) and (iii) the acquisition (whether by purchase,
merger or otherwise) or disposition (whether by sale, merger or otherwise) of
any company, entity or business acquired or disposed of by the Company or any
Subsidiary or ACMI Contracted Aircraft acquired by the Company or any
Subsidiary, in any such case, since the first day of such period, as if such
acquisition or disposition of a company, entity or business, or such acquisition
of an ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any
such case, since the first day of such period, as if such acquisition or
disposition of a company, entity or business, or such acquisition of an ACMI
Contracted Aircraft occurred at the beginning of such period; provided, however,
that pro forma effect shall not be given to a number of ACMI Contracted Aircraft
exceeding five in any four fiscal quarters.
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(b) The Company will not permit any Subsidiary to incur any
Indebtedness (including any Acquired Indebtedness) other than Permitted
Subsidiary Indebtedness.
SECTION 4.4. Limitation on Restricted Payments. (a) The Company will
not, and will not permit any Subsidiary to, directly or indirectly:
(i) declare or pay any dividend on, or make any distribution to holders
of, any shares of the Capital Stock of the Company (other than dividends or
distributions payable solely in shares of its Qualified Capital Stock or in
options, warrants or other rights to acquire such shares of Qualified
Capital Stock);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of Capital Stock of the Company or any
Subsidiary or any Affiliate of the Company, or any options, warrants or
other rights to acquire such shares of Capital Stock;
(iii) make any principal payment on, or repurchase, redeem, defease or
otherwise acquire or retire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Subordinated Indebtedness; or
(iv) make any Investment (other than any Permitted Investment) in any
Person
(such payments or any other actions described in (but not excluded from) clauses
(i) through (iv) are collectively referred to as "Restricted Payments"), unless
at the time of, and immediately after giving effect on a pro forma basis to, the
proposed Restricted Payment (the amount of any such Restricted Payment, if other
than cash, as determined by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a Board Resolution), (1) no
Default or Event of Default shall have occurred and be continuing, (2) the
Company could incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in accordance with the provisions described in Section
4.3 and (3) the aggregate amount of all Restricted Payments declared or made
after the Issue Date shall not exceed the sum of:
(A) 50% of the aggregate cumulative Consolidated Adjusted Net Income of
the Company accrued on a cumulative basis during the period beginning on
July 1, 1997 and ending on the last day of the Company's last fiscal quarter
ending prior to the date of such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Adjusted Net Income shall be a loss, minus
100% of such amount), plus
(B) 100% of the aggregate Net Cash Proceeds received after the Issue
Date by the Company from the issuance or sale (other than to any Subsidiary)
of shares of Qualified Capital Stock of the Company or warrants, options or
rights to purchase such shares of Qualified Capital Stock of the Company,
plus
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(C) 100% of the aggregate Net Cash Proceeds received after the Issue
Date by the Company from the issuance or sale (other than to any Subsidiary)
of debt securities or Redeemable Capital Stock that have been converted into
or exchanged for Qualified Capital Stock of the Company to the extent such
securities were originally sold for cash, together with the aggregate Net
Cash Proceeds received by the Company at the time of such conversion or
exchange, plus
(D) to the extent not otherwise included in the Consolidated Adjusted
Net Income of the Company, an amount equal to the net reduction in
Investments (other than reductions in Permitted Investments) in any Person
resulting from payments in cash of interest on Indebtedness, dividends,
repayments of loans or advances, or other returns of capital, in each case
to the Company or a Subsidiary after the date of the Indenture from any such
Person not to exceed the amount of Investments (other than Permitted
Investments) in such Persons by the Company and its Subsidiaries, plus
(E) $10 million, plus
(F) without duplication, the sum of (1) the aggregate amount returned
in cash on or with respect to Investments (other than Permitted Investments)
made subsequent to the Issue Date whether through interest payments,
principal payments, dividends or other distributions or payments, (2) the
net cash proceeds received by the Company or any Subsidiary from the
disposition of all or any portion of such Investments (other than to a
Subsidiary of the Company) and (3) upon redesignation of an Unrestricted
Subsidiary as a Subsidiary, the fair market value of such Subsidiary;
provided, however, that with respect to all Investments made in any
Unrestricted Subsidiary or joint venture, the sum of clauses (1), (2) and
(3) above with respect to such Investment shall not exceed the aggregate
amount of all such Investments made subsequent to the Issue Date in such
Unrestricted Subsidiary or joint venture.
(b) Notwithstanding paragraph (a) above, the Company and any Subsidiary
may take the following actions so long as (with respect to clauses (ii), (iii),
(iv), (v), (vi) and (vii), below) no Default or Event of Default shall have
occurred and be continuing:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration the payment of such
dividend would have complied with the provisions of paragraph (a) above and
such payment shall be deemed to have been paid on such date of declaration
for purposes of the calculation required by paragraph (a) above;
(ii) the purchase, redemption or other acquisition or retirement for
value of any shares of Capital Stock of the Company or any warrants, rights
or options to acquire shares of Capital Stock, in exchange for, or out of
the Net Cash Proceeds of a substantially
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concurrent issuance and sale (other than to a Subsidiary) of, shares of
Qualified Capital Stock of the Company;
(iii) the purchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Indebtedness or Redeemable Capital
Stock in exchange for, or out of the Net Cash Proceeds of a substantially
concurrent issuance and sale (other than to a Subsidiary) of, shares of
Qualified Capital Stock of the Company;
(iv) the purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness of the Company in exchange
for, or out of the Net Cash Proceeds of a substantially concurrent
incurrence or sale (other than to a Subsidiary) of, new Subordinated
Indebtedness of the Company so long as (A) the principal amount of such new
Indebtedness does not exceed the principal amount (or, if such Subordinated
Indebtedness being refinanced provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration
thereof, such lesser amount as of the date of determination) of the
Subordinated Indebtedness being so purchased, redeemed, defeased, acquired
or retired, (B) such new Subordinated Indebtedness is subordinated to the
Securities to the same extent as such Subordinated Indebtedness so
purchased, redeemed, defeased, acquired or retired and (C) such new
Subordinated Indebtedness does not have a scheduled principal payment
earlier than the final maturity of the Securities;
(v) the purchase, redemption or other acquisition or retirement for
value of shares of Capital Stock of the Company held by any future, present
or former employee or director of the Company or any Subsidiary issued
pursuant to any management equity or stock option plan of the Company;
provided that the aggregate consideration paid by the Company for such
shares so purchased, redeemed or otherwise acquired or retired for value
does not exceed $2.5 million in any fiscal year of the Company;
(vi) the making of any Investment (other than a Permitted Investment)
out of the Net Cash Proceeds of the substantially concurrent issuance and
sale (other than to a Subsidiary) of Qualified Capital Stock of the Company;
and
(vii) the making of Investments in an aggregate amount not to exceed
$50,000,000 in wholly-owned Unrestricted Subsidiaries to own and lease ACMI
Contracted Aircraft or other flight equipment utilized in the normal course
of business of the Company.
The actions described in clauses (i), (ii), (iii), (v) and (vi) of this
paragraph (b) shall be Restricted Payments that shall be permitted to be taken
in accordance with this paragraph (b) but shall reduce the amount that would
otherwise be available for Restricted Payments under clause (3) of paragraph (a)
and the actions described in clauses (iv) and (vii) of this paragraph (b) shall
be Restricted Payments that shall be permitted to be taken in accordance with
this paragraph and shall
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not reduce the amount that would otherwise be available for Restricted Payments
under clause (3) of paragraph (a) above.
(c) In computing Consolidated Adjusted Net Income of the Company under
paragraph (a) above, (1) the Company shall use audited financial statements for
the portions of the relevant period for which audited financial statements are
available on the date of determination and unaudited financial statements and
other current financial data based on the books and records of the Company for
the remaining portion of such period and (2) the Company shall be permitted to
rely in good faith on the financial statements and other financial data derived
from the books and records of the Company that are available on the date of
determination. If the Company makes a Restricted Payment which, at the time of
the making of such Restricted Payment would in the good faith determination of
the Company be permitted under the requirements of the Indenture, such
Restricted Payment shall be deemed to have been made in compliance with the
Indenture notwithstanding any subsequent adjustments made in good faith to the
Company's financial statements affecting Consolidated Adjusted Net Income of the
Company for any period.
SECTION 4.5. Limitation on Issuances and Sales of Capital Stock of
Subsidiaries. The Company (a) will not permit any Subsidiary to issue any
Capital Stock (other than to the Company or a Subsidiary) and (b) will not
permit any Person (other than the Company or a Subsidiary) to own any Capital
Stock of any Subsidiary; provided, however, that this covenant shall not
prohibit (i) the issuance and sale of all, but not less than all, of the issued
and outstanding Capital Stock of any Subsidiary owned by the Company or any
Subsidiary in compliance with the other provisions of the Indenture or (ii) the
ownership by directors of director's qualifying shares or the ownership by
foreign nationals of Capital Stock of any Subsidiary, to the extent mandated by
applicable law.
SECTION 4.6. Limitation on Transactions with Affiliates. The Company
will not, and will not permit any Subsidiary to, directly or indirectly, enter
into or suffer to exist any transaction or series of related transactions
(including, without limitation, the sale, purchase, exchange or lease of assets,
property or services) with, or for the benefit of, any Affiliate of the Company
or any Subsidiary unless (i) such transaction or series of related transactions
is between and among the Company and wholly owned Subsidiaries or (ii)(A) such
transaction or series of related transactions is on terms that are no less
favorable to the Company, or such Subsidiary, as the case may be, than those
that could have been obtained in an arm's-length transaction with unrelated
third parties; (B) the Company shall have delivered an officer's certificate to
the Trustee certifying that such transaction or series of related transactions
complies with clause (A); (C) if such transaction or series of related
transactions involves consideration of more than $3 million, the Board of
Directors (including a majority of the Disinterested Directors) has approved
such transaction or series of transactions or the Company has obtained a written
opinion from a nationally recognized investment banking firm to the effect set
forth in the preceding clause (A); and (D) if such transaction or series of
related transactions involves consideration of more than $10 million, the
Company has obtained a written opinion from a nationally recognized investment
banking firm to the effect set forth in the preceding clause (A). This covenant
will not apply to (i)
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the payment of reasonable and customary compensation and fees to, and
indemnification of, directors of the Company or any Subsidiary who are not
employees of the Company or any Subsidiary or (ii) reasonable and customary
salaries, bonuses and other compensation paid to employees of the Company or any
Subsidiary in accordance with past practice approved by the Compensation
Committee of the Company. Clauses (ii)(C) and (ii)(D) of Section 4.6 will not
apply to transactions pursuant to the Atlas Freighter Leasing Transactions.
SECTION 4.7. Limitation on Liens. The Company will not, and will not
permit any Subsidiary to, directly or indirectly, create, incur, assume or
suffer to exist any Lien of any kind (other then Permitted Liens) on or with
respect to any of its property or assets including any shares of stock or
indebtedness of any Subsidiary, whether owned at the date of the Indenture or
thereafter acquired, or any income, profits or proceeds therefrom, or assign or
otherwise convey any right to receive income thereon.
SECTION 4.8. Limitation on Asset Sales and Disposition of Proceeds of
Asset Sales. (a) The Company will not, and will not permit any Subsidiary to,
directly or indirectly engage in any Asset Sale involving assets unless (i) the
consideration received by the Company or such Subsidiary for such Asset Sale is
not less than the Fair Market Value of the assets sold (as determined by the
Board of Directors of the Company, whose determination shall be conclusive and
evidenced by a Board Resolution) and (ii) the consideration received by the
Company or the relevant Subsidiary in respect of such Asset Sale consists of at
least 75% cash or Cash Equivalents.
(b) If the Company or any Subsidiary engages in an Asset Sale, the
Company may use the Net Cash Proceeds thereof, within 12 months after such Asset
Sale, to (i) repay permanently any then outstanding senior Indebtedness of the
Company or Indebtedness of any Subsidiary, (ii) invest (or enter into a legally
binding agreement to invest) in properties and assets to replace the properties
and assets that were the subject of the Asset Sale or in properties and assets
that will be used in businesses of the Company or its Subsidiaries, as the case
may be, existing on the Issue Date or reasonably related thereto or involving
outsourcing for the air cargo industry ("Replacement Assets"), or (iii) a
combination of repayment and investment permitted by the foregoing clauses
(b)(i) and (b)(ii). If any such legally binding agreement to invest such Net
Cash Proceeds is terminated, then the Company may, within 90 days of such
termination or within 12 months of such Asset Sale, whichever is later, invest
such Net Cash Proceeds as provided in clauses (i), (ii) (without regard to the
parenthetical contained in such clause (ii)) or (iii) above. Pending the final
application of any such Net Cash Proceeds, the Company or such Subsidiary may
temporarily reduce Indebtedness under a revolving credit facility, if any, or
otherwise invest such Net Cash Proceeds in Cash Equivalents. The amount of such
Net Cash Proceeds not so used as set forth above in this paragraph (b)
constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10 million,
the Company shall, within 25 business days, make an offer to purchase (an
"Excess Proceeds Offer") from the holders of Securities, on a pro rata basis, in
accordance with the procedures set forth below, the maximum principal amount of
Securities that may be purchased with the Excess
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Proceeds. The offer price as to each Note shall be payable in cash in an amount
equal to 100% of the principal amount of such Note (as adjusted for any
prepayment of principal of the Securities), plus accrued interest, if any (the
"Offered Price"), to the date such Excess Proceeds Offer is consummated. To the
extent that the adjusted aggregate principal amount of Securities tendered
pursuant to an Excess Proceeds Offer is less than the Excess Proceeds, the
Company may use such deficiency for general corporate purposes. If the aggregate
principal amount of Securities validly tendered and not withdrawn by holders
thereof exceeds the Excess Proceeds, Securities to be purchased will be selected
on a pro rata basis. Upon completion of such offer to purchase, the amount of
Excess Proceeds shall be reset to zero.
(d) Notwithstanding the foregoing, the Company and its Subsidiaries
will be permitted to consummate an Asset Sale without complying with paragraphs
(a) and (b) above to the extent (i) at least 75% of the consideration for such
Asset Sale constitutes Replacement Assets and/or Cash Equivalents and (ii) such
Asset Sale is for Fair Market Value; provided, however, that any consideration
not constituting Replacement Assets received by the Company or any Subsidiary in
connection with any Asset Sale permitted to be consummated under this paragraph
shall constitute Net Cash Proceeds subject to the provisions of paragraphs (a)
and (b) above.
(e) If the Company becomes obligated to make an Excess Proceeds Offer
pursuant to clause (c) above, the Securities shall be purchased by the Company,
at the option of the holder thereof, in whole or in part in integral multiples
of $1,000, on a date that is not earlier than 30 days and not later than 60 days
from the date the notice is given to holders, or such later date as may be
necessary for the Company to comply with the requirements under the Exchange
Act, subject to proration in the event the amount Excess Proceeds is less than
the aggregate Offered Price of all Securities tendered.
(f) Any notice pursuant to 4.8 shall contain all instructions and
materials necessary to enable such Securityholders to tender Securities pursuant
to the Excess Proceeds Offer and shall state the following terms:
(1) that the Excess Proceeds Offer is being made pursuant to Section
4.8 of this Indenture and that all Securities tendered will be accepted for
payment; provided, however, that if the aggregate principal amount of
Securities tendered in an Excess Proceeds Offer exceeds the aggregate amount
of the Excess Proceeds Offer, the Company shall select the Securities to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000 or
multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and
the purchase date (which shall be 20 Business Days from the date of mailing
of notice of such Excess Proceeds Offer, or such longer period as required
by law) (the "Proceeds Purchase Date");
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(3) that any Securities not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any
Security accepted for payment pursuant to the Excess Proceeds Offer shall
cease to accrue interest after the Proceeds Purchase Date;
(5) that Securityholders electing to have a Security purchased pursuant
to an Excess Proceeds Offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the third Business Day prior to the
Proceeds Purchase Date;
(6) that Securityholders will be entitled to withdraw their election if
the Paying Agent receives, not later than five Business Days prior to the
Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Securityholder, the principal amount of the
Securities the Securityholder delivered for purchase and a statement that
such Securityholder is withdrawing his election to have such Security
purchased; and
(7) that Securityholders whose Securities are purchased only in part
will be issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; provided that each Security purchased
and each new Security issued shall be in an original principal amount of
$1,000 or integral multiples thereof;
On or before the Proceeds Purchase Date, the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to the Excess
Proceeds Offer which are to be purchased in accordance with item (f)(1) above,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if any, of all Securities to be purchased
and (iii) deliver to the Trustee Securities so accepted together with an
Officers' Certificate stating the Securities or portions thereof being purchased
by the Company. The Paying Agent shall promptly mail to the Securityholders of
Securities so accepted payment in an amount equal to the purchase price plus
accrued interest, if any. For purposes of this Section 4.8, the Trustee shall
act as the Paying Agent.
Any amounts remaining after the purchase of the Securities pursuant to
an Excess Proceeds Offer shall be returned by the Trustee to the Company.
(g) The Company will comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, in connection with an Excess
Proceeds Offer and shall not be deemed in violation of this covenant by reason
of any action required to be taken to effect such compliance. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.8, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.8 by virtue thereof.
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SECTION 4.9. Change of Control. (a) If a Change of Control shall occur
at any time, then each holder of Securities shall have the right to require that
the Company purchase such holder's Securities, in whole or in part in integral
multiples of $1,000, at a purchase price (the "Change of Control Purchase
Price") in cash in an amount equal to 101% of the principal amount of such
Securities, plus accrued interest, if any, to the date of purchase (the "Change
of Control Purchase Date"), pursuant to the offer described in (b) below (the
"Change of Control Offer") and the other procedures set forth in this Indenture.
(b) Within 30 days following the date upon which a Change of Control
occurs, the Company shall notify the Trustee thereof and give written notice of
such Change of Control to each holder of Securities by first-class mail, postage
prepaid, at the address of such holder shown on the security register, which
notice shall govern the terms of the Change of Control Office; such notice shall
state:
(i) that the Change of Control Offer is being made pursuant to Section
4.9 of this Indenture and that all Securities validly tendered and not
withdrawn will be accepted for payment;
(ii) the purchase price and the purchase date, which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed, or such later date as is necessary to comply with
requirements under the Exchange Act;
(iii) that any Securities not tendered will continue to accrue
interest;
(iv) that, unless the Company defaults in the payment of the purchase
price, any Securities accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control Purchase
Date;
(v) that Securityholders electing to have a Security purchased pursuant
to a Change of Control Offer will be required to surrender the Security,
with the form entitled "Option of Securityholder to Elect Purchase" on the
reverse of the Security completed, to the Paying Agent and Registrar for the
Securities at the address specified in the notice prior to the close of
business on the third Business Day prior to the Change of Control Purchase
Date;
(vi) that Securityholders will be entitled to withdraw their election
if the Paying Agent receives, not later than the second Business Day prior
to the Change of Control Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Securityholder, the
principal amount of the Securities the Securityholder delivered for purchase
and a statement that such Securityholder is withdrawing his election to have
such Security purchased;
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(vii) that Securityholders whose Securities are purchased only in part
will be issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; provided, however, that each Security
purchased and each new Security issued shall be in a principal amount of
$1,000 or integral multiples thereof; and
(viii) the circumstances and relevant facts regarding such Change of
Control.
(c) On or before the Change of Control Purchase Date, the Company shall
(i) accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price plus accrued interest, if any, of all
Securities so tendered and (iii) deliver to the Trustee Securities so accepted
together with an Officers, Certificate stating the Securities or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail to
the Securityholders of Securities so accepted payment in an amount equal to the
purchase price plus accrued interest, if any, and the Trustee shall promptly
authenticate and mail to such Securityholders new Securities equal in principal
amount to any unpurchased portion of the Securities surrendered. Any Securities
not so accepted shall be promptly mailed by the Company to the Securityholder
thereof. For purposes of this Section 4.9, the Trustee shall act as the Paying
Agent.
Any amounts remaining after the purchase of Securities pursuant to a
Change of Control Offer shall be returned by the Trustee to the Company.
(d) The Company will comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, in connection with a Change of
Control Offer and shall not be deemed in violation of this covenant by reason of
any action required to be taken to effect such compliance. To the extent that
the provisions of any securities laws or regulations conflict with the "Change
of Control" provisions of this Indenture, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations relating to such Change of Control Offer by virtue
thereof.
SECTION 4.10. Limitation on Guarantees of Indebtedness by Subsidiaries.
(a) The Company will not permit any Subsidiary, directly or indirectly, to
guarantee, assume or in any other manner become liable for the payment of any
Indebtedness of the Company or Indebtedness of any other Subsidiary unless
(i)(A) such Subsidiary simultaneously executes and delivers a supplemental
indenture to the Indenture providing for a Guarantee of payment of the
Securities by such Subsidiary and (B) with respect to any guarantee of
Subordinated Indebtedness by a Subsidiary, any such guarantee shall be
subordinated to such Subsidiary's Guarantee with respect to the Securities at
least to the same extent as such Subordinated Indebtedness is subordinated to
the Securities and (ii) such Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Subsidiary as a result of any payment by such Subsidiary under its
Guarantee.
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(b) Notwithstanding the foregoing, any Guarantee by a Subsidiary of the
Securities shall provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale, exchange or transfer,
to any Person not an Affiliate of the Company, of all of the Capital Stock of a
Subsidiary owned by the Company or any Subsidiary in, or all or substantially
all the assets of, such Subsidiary (which sale, exchange or transfer is not
prohibited by the Indenture) or (ii) the release or discharge of the guarantee
which resulted in the creation of such Guarantee (and any other guarantees that
would have resulted in the creation of such a Guarantee), except a discharge or
release by or as a result of payment under such guarantee.
SECTION 4.11. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries. The Company will not, and will not permit any Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction of any kind on the ability of
any Subsidiary to (a) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock, (b) pay any Indebtedness
owed to the Company or any other Subsidiary, (c) make Investments in the Company
or any other Subsidiary, (d) transfer any of its properties or assets to the
Company or any other Subsidiary or (e) guarantee any Indebtedness of the Company
or any other Subsidiary, except for such encumbrances or restrictions existing
under or by reason of (i) any agreement in effect on the date of this Indenture,
(ii) this Indenture, (iii) applicable law, (iv) customary non-assignment
provisions, (x) of any lease governing a leasehold interest of the Company or
any Subsidiary or (y) of Indebtedness secured by a Lien that is permitted to be
incurred under the Indebtedness that relates to the property subject to such
Lien, (v) any agreement or other instrument of a Person acquired by the Company
or any Subsidiary in existence at the time of such acquisition (but not created
in contemplation thereof), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person, or
the property or assets of the Person, so acquired, (vi) any restriction with
respect to a Subsidiary of the Company imposed pursuant to an agreement relating
to the sale of all or substantially all of the Capital Stock or assets of such
Subsidiary (so long as such restriction, by its terms, terminates on the earlier
of the termination of such agreement or the consummation of such agreement), and
(vii) any restrictions existing under any agreement that refinances or replaces
any agreement containing restrictions permitted under clause (i), (ii), (iv) or
(v) or (vi), provided that the terms and conditions of such restriction are not
materially less favorable to the holder of the Securities than those under or
pursuant to the agreement refinanced or replaced.
SECTION 4.12. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.13. Use of Proceeds. The Company shall use the net proceeds
from the sale of the Securities to consummate the transactions contemplated in
the section of the Offering Memorandum entitled "Use of Proceeds."
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SECTION 4.14. Compliance Certificates. (a) The Company shall deliver to
the Trustee, within 120 days after the end of each fiscal year, an Officers'
Certificate signed by its principal executive officer, principal financial
officer or principal accounting officer stating that a review of the activities
of the Company and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to determining
whether each has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge each has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action each is taking or proposes
to take with respect thereto).
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.2 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements nothing has come to
their attention which would lead them to believe that the Company has violated
any provisions of Article 4 or 5 or that there exists a Default or Event of
Default under Article 6 of this Indenture insofar as they relate to accounting
matters or, if any such violation has occurred, specifying the nature and period
of existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, within 5 days of any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
(d) The Company shall also comply with TIA Section 314(a)(4).
SECTION 4.15. Maintenance of Office or Agency. (a) The Company shall
maintain in the Borough of Manhattan, in the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company shall
give prior written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such
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purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
in the City of New York for such purposes. The Company shall give prior written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
(c) The Company hereby designates the Trustee at 00 Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as one such office or agency of the Company in
accordance with Section 2.3.
SECTION 4.16. Taxes. The Company shall pay, prior to delinquency, all
material taxes, assessments, and governmental levies; provided, however, that
there shall not be required to be paid or discharged any such tax, assessment or
charge, the amount, applicability or validity of which is being contested in
good faith by appropriate proceedings and for which adequate provision has been
made or for which adequate reserves, to the extent required under GAAP, have
been taken.
SECTION 4.17. Stay, Extension and Usury Laws. The Company covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture (including, but not limited to, the payment of the principal of or
interest on the Securities); and the Company (to the extent that it may lawfully
do so) hereby expressly waive all benefit or advantage of any such law, and
covenant that they shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
SECTION 4.18. Corporate Existence. Subject to Article V, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, and the corporate existence of each
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and the rights
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any Subsidiary, if the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect to the
Securityholders.
ARTICLE V
Surviving Entity
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SECTION 5.1. Limitations on Consolidations, Mergers and Sales of
Assets. (a) The Company will not in a single transaction or a series of related
transactions consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets as an entirety to any Person or Persons, and the
Company will not permit any Subsidiary to enter into any such transaction or
series of transactions if such transaction or series of transactions, in the
aggregate, would result in the sale, assignment, conveyance, transfer, lease or
other disposition of all or substantially all of the properties and assets of
the Company and its Subsidiaries on a consolidated basis to any Person or
Persons, unless:
(i) either (a) the Company shall be the surviving corporation or (b)
the Person (if other than the Company) formed by such consolidation or into
which the Company or such Subsidiary is merged or the Person which acquires
by sale, assignment, conveyance, transfer, lease or other disposition all or
substantially all of the properties and assets of the Company or such
Subsidiary, as the case may be (the "Surviving Entity"), (1) shall be a
corporation organized and validly existing under the laws of the United
States of America, any state thereof or the District of Columbia that is a
"certificated United States air carrier" under the Aviation Act and (2)
shall expressly assume, by indenture, supplemental to the Indenture,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
the Company's obligation for the due and punctual payment of the principal
of (or premium, if any, on) and interest on the Securities and the
performance and observance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(ii) immediately before and after giving effect to such transaction or
series of transactions on a pro forma basis and treating any obligation of
the Company or a Subsidiary in connection with or as a result of such
transaction as having been incurred at the time of such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (on the
assumption that the transaction or series of transactions occurred on the
first day of the four-quarter period immediately prior to the consummation
of such transaction or series of transactions with the appropriate
adjustments with respect to the transaction or series of transactions being
included in such pro forma calculation), the Company (or the Surviving
Entity if the Company is not the continuing obligor under the Indenture)
could incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under the provisions of Section 4.3;
(iv) if any of the property or assets of the Company or any of its
Subsidiaries would thereupon become subject to any Lien, the provisions of
Section 4.7 hereof are complied with; and
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(v) the Company or the Surviving Entity shall have delivered to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
officer's certificate and an opinion of counsel, each stating that such
consolidation, merger, conveyance, transfer or lease, and if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, comply with the terms of this Indenture and that all conditions
precedent therein provided for relating to such transaction have been
complied with.
(b) Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company in accordance with the immediately
preceding paragraph in which the Company is not the continuing obligor under
this Indenture, the Surviving Entity shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor had been named as the Company therein. When
a successor assumes all the obligations of its predecessor under this Indenture
or the Securities, the predecessor shall be released from those obligations;
provided that in the case of a transfer by lease, the predecessor shall not be
released from the payment of principal and interest on the Securities.
ARTICLE VI
Defaults and Remedies
SECTION 6.1. Events of Default. An "Event of Default" will occur under
this Indenture if:
(i) there shall be a default in the payment of any interest on the
Securities when it becomes due and payable, and continuance of such default
for a period of 30 days;
(ii) there shall be a default in the payment of the principal of (or
premium, if any, on) the Securities at their Maturity;
(iii) (A) there shall be a default in the performance, or breach, of
any covenant or agreement of the Company contained in this Indenture (other
than a default in the performance, or breach, of a covenant or agreement
which is specifically dealt with in the immediately preceding clauses (i) or
(ii), or in clauses (B), (C) and (D) of this clause (iii)) and continuance
of such default or breach for a period of 30 days after written notice shall
have been given to the Company by the Trustee or to the Company and the
Trustee by the holders of at least 25% in aggregate principal amount of the
Securities then outstanding; (B) there shall be a default in the
performance, or breach, of the provisions of Section 4.8; (C) there shall be
a default in the performance or breach of the provisions of Section 5.1
hereof; or (D) the Company shall have failed to make or consummate a Change
of Control Offer in accordance with the provisions of Section 4.9 hereof;
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(iv) (A) there shall have occurred one or more defaults in the payment
of principal of (or premium, if any, on) Indebtedness of the Company or any
Subsidiary aggregating $10 million or more, when the same becomes due and
payable at the stated maturity thereof, and such default or defaults shall
have continued after any applicable grace period and shall not have been
cured or waived or (B) Indebtedness of the Company or any Subsidiary
aggregating $10 million or more shall have been accelerated or otherwise
declared due and payable, or required to be prepaid or repurchased (other
than by regularly scheduled required prepayment), prior to the stated
maturity thereof;
(v) one or more final judgments or orders rendered against the Company
or any Subsidiary which require the payment of money, either individually or
in an aggregate amount, in excess of $10 million and either (A) an
enforcement proceeding shall have been commenced by any creditor upon such
judgment or order or (B) there shall have been a period of 30 days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, was not in effect; or
(vi) the Company or a Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
(E) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it; or
(F) takes any corporate action to authorize or effect any of
the foregoing;
or takes any comparable action under any foreign laws relating to
insolvency;
(vii) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
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(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of the property of the Company
or any of its Significant Subsidiaries; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws and in each
case the order, decree or relief remains unstayed and in effect for 60 days;
The foregoing will constitute Events of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
SECTION 6.2. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 6.1(vi) or (vii)) occurs and is continuing, the
Trustee or the holders of at least 25% in principal amount of the outstanding
Securities by notice to the Company may declare the principal of and accrued and
unpaid interest, if any, on all the Securities to be due and payable. Upon such
declaration, such principal and accrued and unpaid interest shall be due and
payable immediately. If an Event of Default specified in Section 6.1(vi) or
(vii) occurs and is continuing, the principal of and accrued and unpaid interest
on all the Securities will become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any holders. The Holders
of a majority in principal amount of the Securities by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration. No such rescission shall affect any
subsequent Default or Event of Default or impair any right consequent thereto.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee and the Securityholders may pursue any available remedy
to collect the payment of principal of or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
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No remedy is exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.
SECTION 6.4. Waiver of Past Defaults. The Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences except (i) a
Default or Event of Default in the payment of the principal of, premium, if any,
or interest on a Security or (ii) a Default or Event of Default in respect of a
provision that under Section 9.2 cannot be amended without the consent of each
Securityholder affected. When a Default or Event of Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any consequent right.
SECTION 6.5. Control by Majority. Subject to Section 2.9, the Holders
of a majority in principal amount of the Securities may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or of exercising any trust or power conferred on the Trustee. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 7.1, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.6. Limitation on Suits. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in outstanding principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in outstanding principal amount of the
Securities do not give the Trustee a direction that, in the opinion of the
Trustee, is inconsistent with the request during such 60-day period.
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A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and interest on the Securities held by such Holder, on or after the
respective due dates expressed in the Securities, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default
specified in Section 6.1(i) or (ii) or an acceleration pursuant to Section 6.2
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any other obligor of the
Securities for the whole amount then due and owing (together with interest on
any unpaid interest to the extent lawful) and the amounts provided for in
Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, its Subsidiaries or
their respective creditors or properties and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: if the Securityholders are forced to proceed against the
Company directly without the Trustee, to the Securityholders for their
collection costs;
THIRD: to Securityholders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
FOURTH: to the Company.
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The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Securityholders pursuant to this Section
6.10. At least 15 days before such record date, the Company shall mail to each
Securityholder and the Trustee a notice that states the record date, the payment
date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more
than 10% in outstanding principal amount of the Securities.
ARTICLE VII
Trustee
SECTION 7.1. Duties of Trustee. (a) If a Default or an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of a Default or an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture or the TIA and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
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(3) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.2. Rights of Trustee. Subject to TIA Section 315(a) through
(d):
(a) The Trustee may rely and shall be protected in acting or refraining
from acting on any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel which shall conform to
Section 12.5. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on the Officers' Certificate or
Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and
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complete authorization and protection from liability in respect to any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Securityholders, unless such Securityholders shall have
offered to the Trustee security or indemnity reasonably satisfactory to the
Trustee against the losses, expenses and liabilities that might be incurred
by it in compliance with such request or direction.
(g) The Trustee shall not be liable with respect to any action taken or
omitted to be taken by it good faith in accordance with the direction of the
Securityholders of a majority in aggregate principal amount of the
Securities at the time outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
involving the exercise of any right, duty, trust or power conferred upon the
Trustee under the TIA or this Indenture.
SECTION 7.3. Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may make loans to, accept deposits from, perform services for and otherwise
deal with the Company, or their Affiliates with the same rights it would have if
it were not Trustee. Any Paying Agent, Registrar, co-registrar or co-paying
agent may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Securities, it shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be responsible for any statement
of the Company in this Indenture or in any document issued in connection with
the sale of the Securities or in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event of Default
occurs and is continuing and if a Trust Officer has knowledge thereof, the
Trustee shall mail to each Securityholder in the manner and to the extent
provided in TIA Section 313(a) notice of the Default or Event of Default within
5 days after it occurs, unless such Default or Event of Default has been cured.
Except in the case of a Default or Event of Default in payment of principal,
premium, if any, or interest on any Security (including payments pursuant to the
optional redemption or required repurchase provisions of such Security, if any),
the Trustee may withhold the notice if and so long as its board of directors,
the executive committee of its board of directors or a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Securityholders.
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SECTION 7.6. Reports by Trustee to Holders. As promptly as practicable
and within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and in any event prior to July 15 in each year, the
Trustee shall mail to each Securityholder, if required by TIA Section 313(a) a
brief report dated as of such May 15 that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b), (c) and (d).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the Commission if required by law and each stock exchange
(if any) on which the Securities are listed. The Company agrees to notify
promptly the Trustee whenever the Securities become listed on any stock exchange
and of any delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses and advances incurred or made
by it, including but not limited to costs of collection, costs of preparing and
reviewing reports, certificates and other documents, costs of preparation and
mailing of notices to Securityholders and reasonable costs of counsel retained
by the Trustee in connection with the delivery of an Opinion of Counsel or
otherwise, in addition to the compensation for its services. Such expenses shall
include the reasonable compensation and expenses, disbursements and advances of
the Trustee's agents, counsel, accountants and experts. The Company shall
indemnify the Trustee for, and hold it harmless against, any and all loss,
liability or expense (including reasonable attorneys' fees) incurred by it in
connection with the administration of this trust and the performance of its
duties hereunder and under the Securities, including the costs and expenses of
enforcing this Indenture and the Securities (including this Section 7.7) and of
defending itself against any claims or liabilities (whether asserted by any
Securityholder, the Company or otherwise) and of complying with any process
served upon it or any of its officers in connection with the exercise or
performance of any of its powers or duties under this Indenture. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the claim and the Trustee
may have separate counsel and the Company shall pay the fees and expenses of
such counsel. The Company need not reimburse any expense or indemnify against
any loss, liability or expense incurred by the Trustee through the Trustee's own
wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities. The Trustee's right to
receive payment of any amounts due under this Section 7.7 shall not be
subordinate to any other liability or indebtedness of the Company.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default
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specified in Section 6.1(7) or (8) with respect to the Company, the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at any time
by so notifying the Company in writing at least 30 days in advance of such
resignation. The Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee in writing and may appoint a
successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the Holders
of a majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to,
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another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Indenture shall at all
times have a Trustee that satisfies the requirements of TIA Section 310(a). The
Trustee shall have a combined capital and surplus of at least $100 million as
set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities or certificates of interest or participation in
other securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Securities; Defeasance. (a) When
(i) the Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.7) for cancellation or (ii) all
outstanding Securities have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to Article 3 hereof and
the Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity or upon redemption all outstanding Securities (other than Securities
replaced pursuant to Section 2.7), including interest thereon to maturity or
such redemption date, and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to Section
8.1(e) and Section 8.6, cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the
Company (accompanied by an Officers' Certificate and an Opinion of Counsel
stating that all conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture have been complied with) and at the
cost and expense of the Company.
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(b) Defeasance and Discharge. Upon the Company's exercise under Section
8.1(a) of the option applicable to this Section 8.1(b), the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Securities on the date the conditions set forth in Section 8.2 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, except for the following
which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of holders of outstanding Securities to receive payments
in respect of the principal of (and premium, if any, on) and interest on
such Securities when such payments are due;
(ii) the Company's obligations to issue temporary Securities, register
the transfer or exchange of any Securities, replace mutilated, destroyed,
lost or stolen Securities, maintain an office or agency for payments in
respect of the Securities and segregate and hold such payments in trust;
(iii) the rights, powers, trusts, duties and immunities of the Trustee;
(iv) the defeasance provisions of this Article; and
(v) subject to compliance with this Article, the Company may exercise
its option under this Section 8.1(b) notwithstanding the prior exercise of
its options under Section 8.1(c) with respect to the Securities.
(c) Covenant Defeasance. Upon the Company's exercise under Section
8.1(a) of the option applicable to this Section 8.1(c), the Company shall be
released from its obligations with respect to any covenant contained in Sections
4.2(b), 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.13 and 4.16 and
Sections 5.1(iii), 5.1(iv) and 5.1(v) with respect to the outstanding Securities
on and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Securities shall thereafter be deemed not to be
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder. For these purposes, such covenant defeasance means that, with respect
to the outstanding Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.1, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby, and any omission to comply with
such obligations shall not constitute a Default or an Event of Default with
respect to the Securities.
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(d) Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(e) Notwithstanding the provisions of Sections 8.1(b) and (c), the
Company's obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 7.7, 8.1(e), 8.4, 8.5
and 8.6 shall survive until the Securities have been paid in full. Thereafter,
the Company's obligations in Sections 7.7, 8.4, 8.5 and 8.6 shall survive.
SECTION 8.2. Conditions to Defeasance. In order for the Company to
exercise its legal defeasance option or its covenant defeasance option:
(i) the Company must irrevocably deposit or cause to be deposited with
the Trustee, in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the holders of the Securities, money in an amount,
or U.S. Government Obligations which through the scheduled payment of
principal and interest thereon will provide money in an amount, or a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay and discharge the principal
of (and premium, if any, on) and interest on the outstanding Securities at
maturity (or upon redemption, if applicable) of such principal, premium or
installment of interest;
(ii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as an event of bankruptcy
under Section 6.1(vi) or (vii) above is concerned, at any time during the
period ending on the 91st day after the date of such deposit;
(iii) such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under this Indenture or any
material agreement or instrument to which the Company is a party or by which
it is bound;
(iv) in the case of defeasance, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or since
the date hereof, there has been a change in applicable federal income tax
law, in either case to the effect, and based thereon such opinion shall
confirm that, the holders of the outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
defeasance had not occurred;
(v) in the case of covenant defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
holders of the Securities outstanding will not recognize income, gain or
loss for federal income tax purposes as a result of such covenant defeasance
and will be subject to federal income tax on the same amounts, in the
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same manner and at the same times as would have been the case if such
covenant defeasance had not occurred;
(vi) in the case of defeasance or covenant defeasance, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States to the effect that after the 91st day following the deposit or after
the date such opinion is delivered, the trust funds will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally;
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the holders of the Securities over the other creditors
of the Company with the intent of hindering, delaying or defrauding
creditors of the Company; and
(viii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance or the covenant
defeasance, as the case may be, have been complied with.
SECTION 8.3. Application of Trust Money. Subject to Section 8.6, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article VIII. It shall apply the deposited
money and the money from U.S. Government Obligations through the Paying Agent
and in accordance with this Indenture and the Securities to the payment of
principal of and interest on the Securities. Money and securities so held in
trust are not subject to Article X.
SECTION 8.4. Repayment to Company. Subject to Sections 7.7, 8.1 and
8.2, the Trustee and the Paying Agent shall promptly turn over to the Company
upon request set forth in an Officers' Certificate any excess money or
securities held by them upon payment of all the obligations under this Indenture
and thereupon shall be relieved from all liability with respect to such money.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal of or interest on the Securities that remains unclaimed
for two years; provided, however, that the Company shall have either caused
notice of such payment to be mailed to each Securityholder entitled thereto no
less than 30 days prior to such repayment or within such period shall have
published such notice in a financial newspaper of widespread circulation
published in the City of New York and, thereafter, Securityholders entitled to
the money must look to the Company for payment as general creditors and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
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SECTION 8.5. Indemnity for U.S. Government Obligations. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article
VIII by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Company under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that, if
the Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.1. Without Consent of Holders. (a) The Company and the
Trustee may amend this Indenture or the Securities without notice to or consent
of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency; provided,
that such amendment or supplement does not, as evidenced by an Opinion of
Counsel delivered to the Trustee, adversely affect the rights of any
Securityholder in any material respect;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or in place
of certificated Securities; provided, however, that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of
the Code or in a manner such that the uncertificated Securities are
described in Section 163(f)(2)(B) of the Code;
(4) to secure the Securities;
(5) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(6) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA;
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(7) to make any change that does not adversely affect the rights of any
Securityholder;
(i) to surrender any right or power conferred upon the
Company;
(ii) to provide for a replacement Trustee under Section 7.8
hereof; or
(iii) to provide for the issuance of the Exchange Securities,
which will have terms substantially identical in all material respects
to the Initial Securities (except that the transfer restrictions
contained in the Initial Securities will be modified or eliminated, as
appropriate), and which will be treated, together with any outstanding
Initial Securities, as a single issue of securities;
provided that the Company has delivered to the Trustee an Opinion of Counsel
stating that any such amendment or supplement complies with the provisions of
this Section 9.1.
(b) Upon the request of the Company accompanied by a Board Resolution
of its Board of Directors authorizing the execution of any such supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
9.6, the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
supplemental indenture which affects its own rights, duties or immunities under
this Indenture or otherwise.
(c) After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. However, the failure to give such notice to all Securityholders, or
any defect therein, shall not impair or affect the validity of an amendment
under this Section.
SECTION 9.2. With Consent of Holders. (a) The Company and the Trustee
may amend this Indenture or the Securities with the consent of the Holders of at
least a majority in outstanding principal amount of the Securities (including
consents obtained in connection with a tender offer or exchange offer for the
Securities) and any existing Default and its consequences (including, without
limitation, an acceleration of the Securities) or compliance with any provision
of this Indenture or the Securities may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Securities
(including consents obtained in connection with a tender offer or exchange offer
for the Securities). Furthermore, subject to Sections 6.4 and 6.7, the Holders
of a majority in aggregate principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for the Securities) may waive compliance in a particular instance by the Company
with any provision of this Indenture or the Securities. However, without the
consent of each Holder of a Security then outstanding, an amendment may not:
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(1) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon the redemption or repurchase of any
Security or change the time at which any Security may or shall be redeemed
or repurchased in accordance with this Indenture;
(5) make any Security payable in money other than that stated in the
Security;
(6) modify or affect in any manner adverse to the Holders, the terms
and conditions of the obligation of the Company for the due and punctual
payment of the principal of or interest on Securities or to institute suit
for the enforcement of any payment on or with respect to the Securities;
(7) waive a Default or Event of Default in the payment of principal of,
premium, if any, or interest on, or redemption payment with respect to, any
Security (excluding any principal or interest due solely as a result of the
occurrence of a declaration of an Event of Default);
(8) make any change in Section 6.4 or 6.7 or the third sentence of this
Section;
(9) amend, change or modify in any material respect the obligation of
the Company to make and consummate a Change of Control Offer in the event of
a Change of Control or make and consummate an offer with respect to any
Asset Sale that has been consummated or modify any of the provisions or
definitions with respect thereto;
(10) modify or change any provision of the Indenture or the related
definitions affecting the ranking of the Securities in a manner which
adversely affects the Holders; or
(11) make any change in the amendment provisions which require each
holder's consent or in the waiver provisions.
(b) Upon the request of the Company accompanied by a Board Resolution
of its respective Board of Directors authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Securityholders as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.6, the
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities
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under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
(c) It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
(d) After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A consent
to an amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Security
or portion of the Security if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective. After an amendment or
waiver becomes effective, it shall bind every Securityholder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall become valid or effective more than 120
days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.6. Trustee to Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the
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rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not sign it. In signing such amendment the Trustee shall
be entitled to receive indemnity reasonably satisfactory to it and to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.
ARTICLE X
Miscellaneous
SECTION 10.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control. If any provision of this Indenture modifies or excludes
any provision of the TIA that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
SECTION 10.2. Notices. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
Atlas Air, Inc
000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
if to the Trustee:
State Street Bank and Trust Company
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to the Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
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All notices and communications (other than those sent to
Securityholders) shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed.
Any notice or communication to a Securityholder shall be mailed by
first class mail, postage prepaid, to its address shown on the register kept by
the Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed to any Person in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 10.3. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.4 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.5) stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section
10.5) stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 10.5 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
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(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with and such other
opinions as the Trustee may reasonably request.
SECTION 10.6. When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by or at a meeting of Securityholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 10.8. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday
or a day on which banking institutions are not required to be open in the State
of New York, or the State in which the Corporate Trust Office is located. If a
payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a regular record date is a Legal Holiday, the record date
shall not be affected.
SECTION 10.9. Governing Law. This Indenture and the Securities shall be
governed by, and construed in accordance with, the laws of the State of New York
but without giving effect to applicable principles of conflicts of law to the
extent that the application of the laws of another jurisdiction would be
required thereby.
SECTION 10.10. No Recourse Against Others. A past, present or future
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
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SECTION 10.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 10.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 10.13. Variable Provisions. The Company initially appoints the
Trustee as Paying Agent and Registrar and custodian with respect to any Global
Securities.
SECTION 10.14. Qualification of Indenture. The Company shall qualify
this Indenture under the TIA in accordance with the terms and conditions of the
Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys' fees for the Company, the Trustee and the Holders)
incurred in connection therewith, including, but not limited to, costs and
expenses of qualification of the Indenture and the Securities and printing this
Indenture and the Securities. The Trustee shall be entitled to receive from the
Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 10.15. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 10.16. Severability. In case any provision in this Indenture or
in the Securities shall be invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the fullest
extent permitted by law.
SECTION 10.17. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any of its Subsidiaries. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
ATLAS AIR, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President--
Strategic Planning and Treasurer
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
80
EXHIBIT A
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH BELOW. 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) OR (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 SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE
TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT
ON THE DATE OF THE TRANSFER OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON
ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES OF
LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THE TIME
PERIOD REFERRED TO ABOVE, 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, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE ISSUER 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
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IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. 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.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY
SUCH NOMINEE, TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.
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CUSIP No:_____
(Front of Security)
No. 1 $___________
ATLAS AIR, INC.
9 1/4% Senior Notes due 2008
ATLAS AIR, INC., a Delaware corporation, for value received,
promises to pay to Cede & Co., as nominee of the Depository Trust Company, or
its registered assigns, the principal sum of _________ AND /oo DOLLARS
($________) on April 15, 2008.
Interest Payment Dates: April 15, and October 15, commencing October
15, 1998.
Record Dates: April 1 and October 1 (whether or not a Business Day).
Additional provisions of this Security are set forth on the other
side of this Security.
Dated:
ATLAS AIR, INC.
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the Securities referred
to in the within-mentioned Indenture
STATE STREET BANK AND TRUST COMPANY, as Trustee
By:_________________________________
Authorized Officer
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(Reverse of Security)
ATLAS AIR, INC.
9 1/4% SENIOR NOTE DUE 2008
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
1. Interest. Atlas Air, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
the rate and in the manner specified below. The Company shall pay, in cash,
interest on the principal amount of this Security at the rate per annum of 9
1/4%. The Company will pay interest semiannually in arrears on April 15 and
October 15 of each year (each an "Interest Payment Date"), commencing October
15, 1998, or if any such day is not a Business Day on the next succeeding
Business Day. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Interest shall accrue from the most recent
Interest Payment Date to which interest has been paid or, if no interest has
been paid, from the date of the original issuance of the Securities. To the
extent lawful, the Company shall pay interest on overdue principal at the rate
of 2% per annum in excess of the then applicable interest rate on the
Securities; it shall pay interest on overdue installments of interest (without
regard to any applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
of Securities at the close of business on the Record Date immediately preceding
the Interest Payment Date, even if such Securities are cancelled after such
Record Date and on or before such Interest Payment Date. Securityholders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal, premium, if any, and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts ("U.S. Legal Tender"). However, the Company may pay principal,
premium, if any, and interest by its check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the Paying Agent or to a
Securityholder at the Securityholder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar without prior notice to any Securityholder. The Company may act
in any such capacity.
4. Indenture. The Company issued the Securities under an Indenture,
dated as of April 9, 1998 (the "Indenture"), among the Company and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code Sections 77aaa-77bbbb) (the "TIA") as in effect on the date the
Indenture is qualified. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
such terms. The terms
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of the Indenture shall govern any inconsistencies between the Indenture and the
Securities. The Securities include the Initial Securities and the Exchange
Securities issued in exchange for the Initial Securities pursuant to the
Indenture. The Initial Securities and the Exchange Securities are treated as a
single class of securities under the Indenture. Capitalized terms herein are
used as defined in the Indenture unless otherwise defined herein. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the TIA, as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Securities are subject to
all such terms, and Securityholders of Securities are referred to the Indenture
and said Act for a statement of them. The Securities are unsecured senior
obligations of the Company limited to $175,000,000 in aggregate principal
amount.
5. (a) Optional Redemption. Except as set forth below, the
Securities will not be redeemable at the option of the Company prior to April
15, 2003. On and after such date, the Securities will be redeemable, at the
Company's option, in whole or in part, at any time upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each holder's
registered address, at the following redemption prices (expressed in percentages
of principal amount), if redeemed during the 12-month period commencing on April
15 of the years set forth below, plus accrued and unpaid interest to the
redemption date (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date):
Year Redemption Price
---- ----------------
2003..................................... 104.625%
2004..................................... 103.083%
2005..................................... 101.542%
2006 and thereafter...................... 100.000%
(b) Optional Redemption upon Public Offerings. In addition, at any
time on or prior to April 15, 2001, the Company, at its option, may redeem up to
35% of the aggregate principal amount of the Securities originally issued with
the net cash proceeds of one or more Public Equity Offerings at a redemption
price equal to 109.25% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided, however, that
after any such redemption the aggregate principal amount of the Securities
outstanding must equal at least 65% of the aggregate principal amount of the
Securities originally issued. In order to effect the foregoing redemption with
the proceeds of any Public Equity Offering, the Company shall make such
redemption not more than 60 days after the consummation of any such Public
Equity Offering.
As used in the preceding paragraph, "Public Equity Offering" means
an underwritten primary public offering of Qualified Capital Stock of the
Company pursuant to a registration statement filed with the Commission in
accordance with the Securities Act.
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6. Mandatory Redemption. The Securities are not subject to mandatory
redemption or sinking fund payments.
7. Repurchase at Option of Securityholder. Sections 4.8 and 4.9 of
the Indenture provide that, after certain Asset Sales (as defined in the
Indenture) and upon the occurrence of a Change of Control (as defined in the
Indenture), and subject to the further limitations contained therein, the
Company will make an offer to purchase certain amounts of the Securities in
accordance with procedures set forth in the Indenture.
8. Selection and Notice of Redemption. In the case of any partial
redemption, selection of the Securities for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which such Securities are listed, or if such Securities are
not then listed on a national securities exchange, on a pro rata basis, by lot
or by such other method as the Trustee in its sole discretion shall deem to be
fair and appropriate; provided, however, that if a partial redemption is made
with the proceeds of a Public Equity Offering, selection of the Securities or
portion thereof for redemption shall be made by the Trustee only on a pro rata
basis, unless such method is otherwise prohibited. Securities may be redeemed in
part in multiples of $1,000 principal amount only. Notice of redemption will be
sent, by first class mail, postage prepaid, at least 30 but not more than 60
days (unless a shorter period is acceptable to the Trustee) prior to the date
fixed for redemption to each holder whose Securities are to be redeemed at the
last address for such holder then shown on the registry books. If any Security
is to be redeemed in part only, the notice of redemption that relates to such
Security shall state the portion of the principal amount thereof to be redeemed.
A new Security in principal amount equal to the unredeemed portion thereof will
be issued in the name of the holder thereof upon cancellation of the original
Security. On and after any redemption date, interest will cease to accrue on the
Securities or part thereof called for redemption as long as the Company has
deposited with the Paying Agent funds in satisfaction of the redemption price
pursuant to the Indenture.
9. Registration Rights. Pursuant to the Registration Rights
Agreement, and subject to certain terms and conditions stated therein, the
Company will be obligated to consummate an Exchange Offer pursuant to which the
Holders of the Initial Securities shall have the right to exchange this Security
for Exchange Securities, which have been registered under the Securities Act, in
like principal amount and having terms identical in all material respect to the
Initial Security. In certain circumstances, and subject to certain terms and
conditions, Holders of the Initial Securities shall have the right to receive
liquidated damages if the Company shall have failed to fulfill its obligations
under the Registration Rights Agreement.
10. Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and Securities
may be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Securityholder among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted
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by the Indenture. The Registrar need not exchange or register the transfer of
any Security or portion of a Security selected for redemption. Also, it need not
exchange or register the transfer of any Securities during a period beginning at
the opening of business on a Business Day 15 days before the day of any
selection of Securities to be redeemed and ending at the close of business on
the day of selection or during the period between a Record Date and the
corresponding Interest Payment Date.
11. Persons Deemed Owners. Prior to due presentment to the Trustee
for registration of the transfer of this Security, the Trustee, any Agent and
the Company may deem and treat the Person in whose name this Security is
registered as its absolute owner for the purpose of receiving payment of
principal of, premium, if any, and interest on this Security and for all other
purposes whatsoever, whether or not this Security is overdue, and neither the
Trustee, any Agent nor the Company shall be affected by notice to the contrary.
The registered Securityholder shall be treated as its owner for all purposes.
12. Amendments and Waivers. Subject to certain exceptions provided
in the Indenture, the Indenture or the Securities may be amended with the
written consent of the Holders of a majority in principal amount of the then
outstanding Securities, and any existing Default or Event of Default (except a
payment default) may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities. Without the consent of any
Securityholder, the Indenture or the Securities may be amended to, among other
things, cure any ambiguity, defect or inconsistency, to comply with the
requirements of the Commission in order to effect or maintain qualification of
the Indenture under the TIA or to make any change that does not adversely affect
in any material respect the rights of any Securityholder.
13. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the holders of at least 25% in principal amount of
the outstanding Securities by notice to the Company may declare the principal of
and accrued and unpaid interest, if any, on all the Securities to be due and
payable. Upon such a declaration, such principal and accrued and unpaid interest
shall be due and payable immediately, if an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company occurs and is
continuing, the principal of and accrued and unpaid interest on all the
Securities will become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any holders. Under
certain circumstances, the holders of a majority in principal amount of the
outstanding Securities may rescind any such acceleration with respect to the
Securities and its consequences.
14. Trustee Dealings with the Company. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or any Affiliate of the
Company and may otherwise deal with the Company and their respective Affiliates
as if it were not Trustee.
15. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness,
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pay dividends or make certain other restricted payments, consummate certain
asset sales, enter into certain transactions with affiliates, incur liens,
create restrictions on the ability of a subsidiary to pay dividends or make
certain payments, sell or issue preferred stock of subsidiaries to third
parties, merge or consolidate with any other person or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of the assets of
the Company. Such limitations are subject to a number of important
qualifications and exceptions provided for in the Indenture. The Company must
annually report to the Trustee on compliance with such limitations.
16. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
17. Defeasance. Subject to certain conditions provided for in the
Indenture, the Company at any time may terminate some or all of its obligations
under the Securities and the Indenture if the Company deposits with the Trustee
money or U.S. Government Obligations for the payment of principal, premium (if
any) and interest on the Securities to redemption or maturity, as the case may
be.
18. Governing Law. The Laws of the State of New York shall govern
this Security and the Indenture, without regard to principles of conflict of
laws.
19. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
20. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessors under the Securities and the
Indenture, the predecessor will be released from those obligations.
21. No Recourse Against Others. No stockholder, director, officer,
employee or incorporator, as such, of the Company shall have any liability for
any obligation of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Securityholder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities.
22. Abbreviations. Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities and has directed the Trustee to
use CUSIP numbers in
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notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture. Request may be made to:
Atlas Air, Inc.
000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date:___________________
Your Signature:_____________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:
________________________
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OPTION OF SECURITYHOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Company pursuant to Section 4.8 or Section 4.9 of the Indenture
check the appropriate box:
[ ] Section 4.8 [ ] Section 4.9
If you want to have only part of the Security purchased by the
Company pursuant to Section 4.8 or Section 4.9 of the Indenture, state the
amount you elect to have purchased:
$_______________________
Date:___________________
Your Signature:_____________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:
________________________
X-00
00
XXXXXXX X
THIS SECURITY MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON (AS SUCH
TERM IS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD (AS
DEFINED IN THE INDENTURE), AND NO TRANSFER OR EXCHANGE OF THIS SECURITY MAY BE
MADE FOR AN INTEREST IN A PHYSICAL SECURITY UNTIL AFTER THE LATER OF THE DATE OF
EXPIRATION OF THE RESTRICTED PERIOD AND THE DATE ON WHICH THE PROPER REQUIRED
CERTIFICATION RELATING TO SUCH INTEREST HAS BEEN PROVIDED IN ACCORDANCE WITH THE
TERMS OF THE INDENTURE, TO THE EFFECT THAT THE BENEFICIAL OWNER OR OWNERS OF
SUCH INTEREST ARE NOT U.S. PERSONS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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 SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.17 OF THE INDENTURE.
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CUSIP No:
(Front of Security)
No. 1 $___________
ATLAS AIR, INC.
9 1/4% Senior Notes due 2008
ATLAS AIR, INC., a Delaware corporation, for value received,
promises to pay to Cede & Co., as nominee of the Depository Trust Company, or
its registered assigns, the principal sum of _________ AND /oo DOLLARS
($________) on April 15, 2008.
Interest Payment Dates: April 15 and October 15, commencing October
15, 1998.
Record Dates: April 1 and October 1 (whether or not a Business Day).
Additional provisions of this Security are set forth on the other
side of this Security.
Dated:
ATLAS AIR, INC.
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the Securities referred
to in the within-mentioned Indenture
STATE STREET BANK AND TRUST COMPANY, as Trustee
By:____________________________________
Authorized Officer
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(Reverse of Security)
ATLAS AIR, INC.
9 1/4% SENIOR NOTE DUE 2008
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
1. Interest. Atlas Air, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
the rate and in the manner specified below. The Company shall pay, in cash,
interest on the principal amount of this Security at the rate per annum of
9 1/4%. The Company will pay interest semiannually in arrears on April 15 and
October 15 of each year (each an "Interest Payment Date"), commencing October
15, 1998, or if any such day is not a Business Day on the next succeeding
Business Day. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Interest shall accrue from the most recent
Interest Payment Date to which interest has been paid or, if no interest has
been paid, from the date of the original issuance of the Securities. To the
extent lawful, the Company shall pay interest on overdue principal at the rate
of 2% per annum in excess of the then applicable interest rate on the
Securities; it shall pay interest on overdue installments of interest (without
regard to any applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
of Securities at the close of business on the Record Date immediately preceding
the Interest Payment Date, even if such Securities are cancelled after such
Record Date and on or before such Interest Payment Date. Securityholders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal, premium, if any, and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts ("U.S. Legal Tender"). However, the Company may pay principal,
premium, if any, and interest by its check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the Paying Agent or to a
Securityholder at the Securityholder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar without prior notice to any Securityholder. The Company may act
in any such capacity.
4. Indenture. The Company issued the Securities under an Indenture,
dated as of April 9, 1998 (the "Indenture"), among the Company and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the TIA as in effect on the date the
Indenture is qualified. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
such terms. The terms of the Indenture shall govern any inconsistencies between
the Indenture and the
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Securities. The Securities include the Initial Securities and the Exchange
Securities issued in exchange for the Initial Securities pursuant to the
Indenture. The Initial Securities and the Exchange Securities are treated as a
single class of securities under the Indenture. Capitalized terms herein are
used as defined in the Indenture unless otherwise defined herein. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Securityholders of Securities are referred to the
Indenture and said Act for a statement of them. The Securities are unsecured
senior obligations of the Company limited to $175,000,000 in aggregate principal
amount.
5. (a) Optional Redemption. Except as set forth below, the
Securities will not be redeemable at the option of the Company prior to April
15, 2003. On and after such date, the Securities will be redeemable, at the
Company's option, in whole or in part, at any time upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each holder's
registered address, at the following redemption prices (expressed in percentages
of principal amount), if redeemed during the 12-month period commencing on April
15 of the years set forth below, plus accrued and unpaid interest to the
redemption date (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date):
Year Redemption Price
---- ----------------
2003..................................... 104.625%
2004..................................... 103.083%
2005..................................... 101.542%
2006 and thereafter...................... 100.000%
(b) Optional Redemption Upon Public Offerings. In addition, at any
time on or prior to April 15, 2001, the Company, at its option, may redeem up to
35% of the aggregate principal amount of the Securities originally issued with
the net cash proceeds of one or more Public Equity Offerings at a redemption
price equal to 109.25% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided, however, that
after any such redemption the aggregate principal amount of the Securities
outstanding must equal at least 65% of the aggregate principal amount of the
Securities originally issued. In order to effect the foregoing redemption with
the proceeds of any Public Equity Offering, the Company shall make such
redemption not more than 60 days after the consummation of any such Public
Equity Offering.
As used in the preceding paragraph, "Public Equity Offering" means
an underwritten primary public offering of Qualified Capital Stock of the
Company pursuant to a registration statement filed with the Commission in
accordance with the Securities Act.
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6. Mandatory Redemption. The Securities are not subject to mandatory
redemption or sinking fund payments.
7. Repurchase at Option of Securityholder. Sections 4.8 and 4.9 of
the Indenture provide that, after certain Asset Sales (as defined in the
Indenture) and upon the occurrence of a Change of Control (as defined in the
Indenture), and subject to the further limitations contained therein, the
Company will make an offer to purchase certain amounts of the Securities in
accordance with procedures set forth in the Indenture.
8. Selection and Notice of Redemption. In the case of any partial
redemption, selection of the Securities for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which such Securities are listed, or if such Securities are
not then listed on a national securities exchange, on a pro rata basis, by lot
or by such other method as the Trustee in its sole discretion shall deem to be
fair and appropriate; provided, however, that if a partial redemption is made
with the proceeds of a Public Equity Offering, selection of the Securities or
portion thereof for redemption shall be made by the Trustee only on a pro rata
basis, unless such method is otherwise prohibited. Securities may be redeemed in
part in multiples of $1,000 principal amount only. Notice of redemption will be
sent, by first class mail, postage prepaid, at least 30 but not more than 60
days (unless a shorter period is acceptable to the Trustee) prior to the date
fixed for redemption to each holder whose Securities are to be redeemed at the
last address for such holder then shown on the registry books. If any Security
is to be redeemed in part only, the notice of redemption that relates to such
Security shall state the portion of the principal amount thereof to be redeemed.
A new Security in principal amount equal to the unredeemed portion thereof will
be issued in the name of the holder thereof upon cancellation of the original
Security. On and after any redemption date, interest will cease to accrue on the
Securities or part thereof called for redemption as long as the Company has
deposited with the Paying Agent funds in satisfaction of the redemption price
pursuant to the Indenture.
9. Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and Securities
may be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Securityholder among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not exchange or register the
transfer of any Security or portion of a Security selected for redemption. Also,
it need not exchange or register the transfer of any Securities during a period
beginning at the opening of business on a Business Day 15 days before the day of
any selection of Securities to be redeemed and ending at the close of business
on the day of selection or during the period between a Record Date and the
corresponding Interest Payment Date.
10. Persons Deemed Owners. Prior to due presentment to the Trustee
for registration of the transfer of this Security, the Trustee, any Agent and
the Company may deem
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96
and treat the Person in whose name this Security is registered as its absolute
owner for the purpose of receiving payment of principal of, premium, if any, and
interest on this Security and for all other purposes whatsoever, whether or not
this Security is overdue, and neither the Trustee, any Agent nor the Company
shall be affected by notice to the contrary. The registered Securityholder shall
be treated as its owner for all purposes.
11. Amendments and Waivers. Subject to certain exceptions provided
in the Indenture, the Indenture or the Securities may be amended with the
written consent of the Holders of a majority in principal amount of the then
outstanding Securities, and any existing Default or Event of Default (except a
payment default) may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities. Without the consent of any
Securityholder, the Indenture or the Securities may be amended to, among other
things, cure any ambiguity, defect or inconsistency, to comply with the
requirements of the Commission in order to effect or maintain qualification of
the Indenture under the TIA or to make any change that does not adversely affect
in any material respect the rights of any Securityholder.
12. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the holders of at least 25% in principal amount of
the outstanding Securities by notice to the Company may declare the principal of
and accrued and unpaid interest, if any, on all the Securities to be due and
payable. Upon such a declaration, such principal and accrued and unpaid interest
shall be due and payable immediately, if an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company occurs and is
continuing, the principal of and accrued and unpaid interest on all the
Securities will become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any holders. Under
certain circumstances, the holders of a majority in principal amount of the
outstanding Securities may rescind any such acceleration with respect to the
Securities and its consequences.
13. Trustee Dealings with the Company. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or any Affiliate of the
Company and may otherwise deal with the Company and their respective Affiliates
as if it were not Trustee.
14. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, make payments in respect of its Capital Stock or
certain Indebtedness, pay dividends or make certain other restricted payments,
consummate certain asset sales, enter into certain transactions with affiliates,
incur liens, create restrictions on the ability of a subsidiary to pay dividends
or make certain payments, sell or issue preferred stock of subsidiaries to third
parties, merge or consolidate with any other person or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of the assets of
the Company. Such limitations are subject to a number of important
qualifications and exceptions provided for in the Indenture. The Company must
annually report to the Trustee on compliance with such limitations.
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97
15. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. Defeasance. Subject to certain conditions provided for in the
Indenture, the Company at any time may terminate some or all of its obligations
under the Securities and the Indenture if the Company deposits with the Trustee
money or U.S. Government Obligations for the payment of principal, premium (if
any) and interest on the Securities to redemption or maturity, as the case may
be.
17. Governing Law. The Laws of the State of New York shall govern
this Security and the Indenture, without regard to principles of conflict of
laws.
18. Abbreviations. Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
19. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
20. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessors under the Securities and the
Indenture, the predecessor will be released from those obligations.
21. No Recourse Against Others. No stockholder, director, officer,
employee or incorporator, as such, of the Company shall have any liability for
any obligation of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Note by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Securities.
22. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Securityholders.
No representation is made as to the accuracy of such numbers either as printed
on the Securities or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture. Request may be made to:
X-0
00
Xxxxx Xxx, Xxx.
000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date:___________________
Your Signature:_____________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:
________________________
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OPTION OF SECURITYHOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Company pursuant to Section 4.8 or Section 4.9 of the Indenture
check the appropriate box:
[ ] Section 4.8 [ ] Section 4.9
If you want to have only part of the Security purchased by the
Company pursuant to Section 4.8 or Section 4.9 of the Indenture, state the
amount you elect to have purchased:
$_______________________
Date:___________________
Your Signature:_____________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:
________________________
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EXHIBIT C
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
State Street Bank and Trust Company
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Department
Re: Atlas Air, Inc.
9 1/4% Senior Notes due 2008
Ladies and Gentlemen:
In connection with our proposed purchase of 9 1/4% Senior Notes due
2008 (the "Securities") of Atlas Air, Inc. (the "Company"), we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated April 7, 1998 relating to the Securities and such other
information as we deem necessary in order to make our investment decision. We
acknowledge that we have read and agreed to the matters stated on pages (i) and
(ii) of the Offering Memorandum and in the section entitled "Transfer
Restrictions" of the Offering Memorandum including the restrictions on
duplication and circulation of the Offering Memorandum.
2. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture
relating to the Securities (as described in the Offering Memorandum) and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities 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 or otherwise transfer any Securities prior to the
date which is two years after the original issuance of the Securities, we will
do so only (i) to the Company or any of its subsidiaries, (ii) inside the United
States in accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act), (iii)
inside the United States to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes (or has furnished on its behalf
by
C-1
102
a U.S. broker-dealer) to the Trustee (as defined in the Indenture relating to
the Securities), a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Securities, (iv)
outside the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (v) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available), or (vi) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing any of the Securities from us a notice advising such
purchaser that resales of the Securities are restricted as stated herein.
4. We are not acquiring the Securities for or on behalf of, and will
not transfer the Securities to, any pension or welfare plan (as defined in
Section 3 of the Employee Retirement Income Security Act of 1974), except as
permitted in the section entitled "Transfer Restrictions" of the Offering
Memorandum.
5. We understand that, on any proposed resale of any Securities, we
will be required to furnish to the Trustee and the Company such certification,
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Securities purchased by us will
bear a legend to the foregoing effect.
6. 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 Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or their investment, as the case may be.
7. We are acquiring the Securities purchased by us for our 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 proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
By:__________________________________
Name:
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EXHIBIT D
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
_______________, _____
State Street Bank and Trust Company
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Department
Re: Atlas Air, Inc.
(the "Company") 9 1/4% Senior
Notes due 2008 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $____________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a Person in the
United States;
(2) either (a) at the time the buy offer 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;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
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104
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 Transferor]
By:____________________________________
Authorized Signature
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