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EXHIBIT 4.7
TRUST SUPPLEMENT No. 2000-1C
Dated as of January 28, 2000
between
WILMINGTON TRUST COMPANY
as Trustee,
and
ATLAS AIR INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of January 28, 2000
$47,937,000
Atlas Air Pass Through Trust 2000-1C
9.702% Atlas Air
Pass Through Certificates,
Series 2000-lC
This Trust Supplement No. 2000-1C (herein called the "Trust
Supplement") dated as of January 28, 2000 between Atlas Air, Inc., a Delaware
corporation (the "Company"), and Wilmington Trust Company (the "Trustee") to the
Pass Through Trust Agreement dated as of January 28, 2000, between the Company
and the Trustee (the "Basic Agreement").
W I T N E S S E T H:
WHEREAS, the Basic Agreement, unlimited as to the aggregate principal
amount of Certificates (unless otherwise specified herein, capitalized terms
used herein without definition having the respective meanings specified in the
Basic Agreement) which may be issued thereunder, has heretofore been executed
and delivered;
WHEREAS, the Company has obtained commitments from Boeing for the
delivery of certain Aircraft;
WHEREAS, the Company intends to finance the acquisition of each such
Aircraft either (i) through separate leveraged lease transactions, in which case
the Company will lease such Aircraft (collectively,
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the "Leased Aircraft"), or (ii) through separate secured loan transactions, in
which case the Company will own such Aircraft (collectively, the "Owned
Aircraft");
WHEREAS, in the case of each Leased Aircraft, each Owner Trustee,
acting on behalf of the corresponding Owner Participant, will issue pursuant to
an Indenture, on a non-recourse basis, Equipment Notes in order to finance a
portion of its purchase price of such Leased Aircraft;
WHEREAS, in the case of each Owned Aircraft, the Company will issue
pursuant to an Indenture, on a recourse basis, Equipment Notes to finance all or
a portion of the purchase price of such Owned Aircraft;
WHEREAS, the Trustee hereby declares the creation of this Atlas Air
Pass Through Trust 2000-1C (the "Applicable Trust") for the benefit of the
Applicable Certificateholders, and the initial Applicable Certificateholders as
the grantors of the Applicable Trust, by their respective acceptances of the
Applicable Certificates, join in the creation of the Applicable Trust with the
Trustee;
WHEREAS, all Certificates to be issued by the Applicable Trust will
evidence fractional undivided interests in the Applicable Trust and will convey
no rights, benefits or interests in respect of any property other than the Trust
Property, except for those Certificates to which an Escrow Receipt has been
affixed;
WHEREAS, the Escrow Agent, the Trustee and the Placement Agents have
contemporaneously herewith entered into an Escrow Agreement with the Escrow
Paying Agent pursuant to which the Placement Agents have delivered to the Escrow
Agent the proceeds from the sale of the Applicable Certificates and have
irrevocably instructed the Escrow Agent to withdraw and pay funds from such
proceeds upon request and proper certification by the Trustee to purchase
Equipment Notes as the Aircraft are delivered by Boeing under the Aircraft
Purchase Agreement from time to time prior to the Delivery Period Termination
Date;
WHEREAS, the Escrow Agent on behalf of the Applicable
Certificateholders has contemporaneously herewith entered into a Deposit
Agreement with the Depositary under which the Deposit referred to therein will
be made and from which it will withdraw funds to allow the Trustee to purchase
Equipment Notes from time to time prior to the Delivery Period Termination Date;
WHEREAS, pursuant to the terms and conditions of the Basic Agreement as
supplemented by this Trust Supplement (the "Agreement") and the Note Purchase
Agreement, upon or shortly following delivery of an Aircraft, the Trustee on
behalf of the Applicable Trust, using funds withdrawn under the Escrow
Agreement, shall purchase one or more Equipment Notes having the same interest
rate as, and final maturity date not later than the Final Regular Distribution
Date of, the Applicable Certificates issued hereunder and shall hold such
Equipment Notes in trust for the benefit of the Applicable Certificateholders;
WHEREAS, all of the conditions and requirements necessary to make this
Trust Supplement, when duly executed and delivered, a valid, binding and legal
instrument in accordance with its terms and for the purposes herein expressed,
have been done, performed and fulfilled, and the execution and delivery of this
Trust Supplement in the form and with the terms hereof have been in all respects
duly authorized;
WHEREAS, upon the occurrence of a Registration Event, this Trust
Supplement is subject to the provisions of the Trust Indenture Act of 1939, as
amended, and shall, to the extent applicable, be governed by such provisions;
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NOW THEREFORE, in consideration of the premises herein, it is agreed
between the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. THE CERTIFICATES. There is hereby created a series of
Certificates to be issued under the Agreement to be distinguished and known as
"9.702% Atlas Air Initial Pass Through Certificates, Series 2000-lC" (the
"Initial Certificates"). The exchange certificates which may be issued and
offered in exchange for the Initial Certificates pursuant to the Registration
Rights Agreement shall be known as the "9.702% Atlas Air Exchange Pass Through
Certificates Series 2000-1C" (the "Exchange Certificates"). The Initial
Certificates and the Exchange Certificates hereinafter defined as the
"Applicable Certificates". Each Applicable Certificate represents a fractional
undivided interest in the Applicable Trust created hereby. The Applicable
Certificates shall be the only instruments evidencing a fractional undivided
interest in the Applicable Trust.
The terms and conditions applicable to the Applicable Certificates are
as follows:
(a) The aggregate principal amount of the Applicable Certificates that
shall be authenticated under the Agreement (except for Applicable Certificates
authenticated and delivered pursuant to Sections 3. 03, 3.04, 3.05 and 3.06 of
the Basic Agreement) is $47,937,000.
(b) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means January 2 and July 2 of each year, commencing on July
2, 2000, until payment of all of the Scheduled Payments to be made under the
Equipment Notes has been made.
(c) The Special Distribution Dates with respect to the Applicable
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to the Agreement.
(d) At the Escrow Agent's request under the Escrow Agreement, the
Trustee shall affix the corresponding Escrow Receipt to each Applicable
Certificate. In any event, any transfer or exchange of any Applicable
Certificate shall also effect a transfer or exchange of the related Escrow
Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Applicable Certificate shall be permitted unless the corresponding Escrow
Receipt is attached thereto and also is so transferred or exchanged. By
acceptance of any Applicable Certificate to which an Escrow Receipt is attached,
each Holder of such an Applicable Certificate acknowledges and accepts the
restrictions on transfer of the Escrow Receipt set forth herein and in the
Escrow Agreement.
(e) (i) The Applicable Certificates shall be in the form attached
hereto as Exhibit A. Any Person acquiring or accepting an Applicable Certificate
or an interest therein will, by such acquisition or acceptance, be deemed to
represent and warrant to and for the benefit of, among other persons, each Owner
Participant, the Company, the Placement Agents and the Trustee that either (i)
the assets of an employee benefit plan subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or of a plan
subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), have not been used to purchase Applicable Certificates or an interest
therein or (ii) the purchase and holding of Applicable Certificates
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or an interest therein is exempt from the prohibited transaction restrictions of
ERISA and the Code pursuant to one or more prohibited transaction statutory or
administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry Certificates and
shall be subject to the conditions set forth in the Letter of Representations
between the Company and the Clearing Agency attached hereto as Exhibit B.
(f) The Applicable Certificates are subject to the Intercreditor
Agreement, the Deposit Agreement and the Escrow Agreement.
(g) The Applicable Certificates will have the benefit of the Liquidity
Facility.
(h) The Responsible Party is the Company.
(i) The date referred to in clause (i) of the definition of the term
"PTC Event of Default" in the Basic Agreement is the Final Maturity Date.
(j) The particular "sections of the Note Purchase Agreement", for
purposes of clause (3) of Section 7.07 of the Basic Agreement, are Section 8.1
(with respect to Owned Aircraft) and Section 9.1 (with respect to Leased
Aircraft) of each Participation Agreement.
(k) The Equipment Notes to be acquired and held in the Applicable
Trust, and the related Aircraft and Note Documents, are described in the Note
Purchase Agreement.
ARTICLE II
DEFINITIONS
Section 2.01. DEFINITIONS. For all purposes of the Basic Agreement as
supplemented by this Trust Supplement, the following capitalized terms have the
following meanings (any term used herein which is defined in both this Trust
Supplement and the Basic Agreement shall have the meaning assigned thereto in
this Trust Supplement for purposes of the Basic Agreement as supplemented by
this Trust Supplement):
Agent Members: has the meaning specified in Section 8.04 of this Trust
Supplement.
Agreement: has the meaning specified in the recitals hereto.
Aircraft: means each of the Aircraft or Substitute Aircraft in respect
of which a Participation Agreement is or is to be, as the case may be, entered
into in accordance with the Note Purchase Agreement.
Aircraft Purchase Agreement: has the meaning specified in the Note
Purchase Agreement.
Applicable Certificates: has the meaning specified in Section 1.01 of
this Trust Supplement.
Applicable Certificateholder: means the Person in whose name an
Applicable Certificate is registered on the Register for the Applicable
Certificates.
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Applicable Delivery Date: has the meaning specified in Section 5.01(b)
of this Trust Supplement.
Applicable Participation Agreement: has the meaning specified in
Section 5.01(b) of this Trust Supplement.
Applicable Trust: has the meaning specified in the recitals hereto.
Basic Agreement: has the meaning specified in the first paragraph of
this Trust Supplement.
Boeing: means The Boeing Company.
Business Day: means any day other than a Saturday, a Sunday or a day on
which commercial banks are required or authorized to close in Denver, Colorado,
New York, New York, Salt Lake City, Utah or, so long as any Applicable
Certificate is Outstanding, the city and state in which the Trustee or any Loan
Trustee maintains its Corporate Trust Office or receives and disburses funds.
Cedel: means Clearstream Banking, societe anonyme.
Class D Certificateholder: has the meaning specified in Section 4.01(b)
of this Trust Supplement.
Company: has the meaning specified in the first paragraph of this Trust
Supplement.
Cut-Off Date: means the earlier of (a) the Delivery Period Termination
Date and (b) the date on which a Triggering Event occurs.
Delivery Notice: has the meaning specified in the Note Purchase
Agreement.
Delivery Period Termination Date: means December 31, 2000 (provided
that, if a labor strike occurs at Boeing prior to December 31, 2000, such date
shall be extended by adding thereto the number of days that such strike
continues in effect).
Deposit: has the meaning specified in the Deposit Agreement.
Deposit Agreement: means the Deposit Agreement dated as of January 28,
2000 relating to the Applicable Certificates between the Depositary and the
Escrow Agent, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms.
Depositary: means Westdeutsche Landesbank Girozentrale, a German
banking institution organized under the laws of the State of North
Rhine-Westphalia, acting through its New York branch.
Distribution Date: means any Regular Distribution Date or Special
Distribution Date as the context requires.
DTC: means The Depositary Trust Company, and any successor entity to
DTC as depositary for the Applicable Certificates.
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▇▇▇▇▇▇ ▇▇▇▇▇: means, First Security Bank, National Association, or any
replacement or successor therefor appointed in accordance with the Escrow
Agreement.
Escrow Agreement: means the Escrow and Paying Agent Agreement dated as
of January 28, 2000 relating to the Applicable Certificates, among the Escrow
Agent, the Escrow Paying Agent, the Trustee and the Placement Agents, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Escrow Paying Agent: means the Person acting as paying agent under the
Escrow Agreement.
Escrow Receipt: means the receipt substantially in the form annexed to
the Escrow Agreement representing a fractional undivided interest in the funds
held in escrow thereunder.
Euroclear: means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as the operator of the Euroclear System.
Exchange Certificates: means the certificates substantially in the form
of Exhibit A attached hereto issued in exchange for the Initial Certificates
pursuant to the Registration Rights Agreement and authenticated hereunder.
Exchange Offer Registration Statement: has the meaning specified in the
Registration Rights Agreement.
Final Maturity Date: means July 2, 2011.
Final Withdrawal: has the meaning specified in the Escrow Agreement.
Final Withdrawal Date: has the meaning specified in the Escrow
Agreement.
Final Withdrawal Notice: has the meaning specified in Section 4.02 of
this Trust Supplement.
Global Certificates: has the meaning specified in Section 8.01(c) of
this Trust Supplement.
Global Exchange Certificate: has the meaning specified in Section
8.01(e) of this Trust Supplement.
Indenture: means each of the separate trust indentures and mortgages
relating to the Aircraft, each as specified or described in a Delivery Notice
delivered pursuant to the Note Purchase Agreement or the related Participation
Agreement, in each case as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Institutional Accredited Investor: means an institutional investor that
is an "accredited investor" within the meaning set forth in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act.
Intercreditor Agreement: means the Intercreditor Agreement dated as of
January 28, 2000, among the Trustee, the Other Trustees, the Liquidity Provider,
the Liquidity Providers relating to the Certificates issued under each of the
Other Agreements, and Wilmington Trust Company, as Subordination Agent and as
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trustee thereunder, as amended, supplemented or otherwise modified from time to
time in accordance with its terms.
Investors: means the Placement Agents together with all subsequent
beneficial owners of the Applicable Certificates.
Lease: means, with respect to each Leased Aircraft, the lease between
an Owner Trustee, as the lessor, and the Company, as the lessee, referred to in
the related Indenture, as such lease may be amended, supplemented or otherwise
modified in accordance with its terms.
Leased Aircraft: has the meaning specified in the third recital to this
Trust Supplement.
Leased Aircraft Indenture: has the meaning specified in the Note
Purchase Agreement.
Liquidity Facility: means, initially, the Revolving Credit Agreement
dated as of January 28, 2000 relating to the Applicable Certificates, between
the Liquidity Provider and Wilmington Trust Company, as Subordination Agent, as
agent and trustee for the Applicable Trust, and, from and after the replacement
of such agreement pursuant to the Intercreditor Agreement, the replacement
liquidity facility therefor, in each case as amended, supplemented or otherwise
modified from time to time in accordance with their respective terms.
Liquidity Provider: means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc., a
Delaware corporation.
Non-U.S. Person: means a Person that is not a "U.S. Person," as defined
in Regulation S.
Note Documents: means the Equipment Notes with respect to the
Applicable Certificates and, with respect to any such Equipment Note, (i) the
Indenture and the Participation Agreement relating to such Equipment Note, and
(ii) in the case of any Equipment Note related to a Leased Aircraft, the Lease
relating to such Leased Aircraft.
Note Purchase Agreement: means the Note Purchase Agreement dated as of
January 28, 2000 among the Trustee, the Other Trustees, the Company, the Escrow
Agent, the Escrow Paying Agent and the Subordination Agent, providing for, among
other things, the purchase of Equipment Notes by the Trustee on behalf of the
Trust, as the same may be amended, supplemented or otherwise modified from time
to time, in accordance with its terms.
Notice of Prepayment Withdrawal: has the meaning specified in the
Deposit Agreement.
Notice of Purchase Withdrawal: has the meaning specified in the Deposit
Agreement.
Offering Memorandum: means the offering memorandum dated January 20,
2000 relating to the offering of the Initial Certificates.
Offshore Certificates Exchange Date: has the meaning specified in
Section 8.01(c) of this Trust Supplement.
Offshore Global Certificates: has the meaning specified in Section
8.01(c) of this Trust Supplement.
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Offshore Physical Certificates: has the meaning specified in Section
8.01(d) of this Trust Supplement.
Other Agreements: means (i) the Basic Agreement as supplemented by
Trust Supplement No. 2000-lA dated as of the date hereof relating to Atlas Air
Pass Through Trust 2000-lA; (ii) the Basic Agreement as supplemented by Trust
Supplement No. 2000-lB dated as of the date hereof relating to Atlas Air Pass
Through Trust 2000-1B; and (iii) if Class D Certificates are issued, the Basic
Agreement as supplemented by Trust Supplement No. 2000-1D relating to Atlas Air
Pass Through Trust 2000-1D.
Other Trustees: means the trustees under the Other Agreements, and any
successor or other trustee appointed as provided therein.
Other Trusts: means the Atlas Air Pass Through Trust 2000-lA and the
Atlas Air Pass Through Trust 2000-lB, each created on the date hereof, and if
Class D Certificates are issued, the Atlas Air Pass Through Trust 2000-1D.
Owned Aircraft: has the meaning specified in the third recital to this
Trust Supplement.
Owned Aircraft Indenture: has the meaning specified in the Note
Purchase Agreement.
Owner Participant: with respect to any Equipment Note relating to a
Leased Aircraft, means the "Owner Participant" as referred to in the Indenture
pursuant to which such Equipment Note is issued and any permitted successor or
assign of such Owner Participant; and "Owner Participants" at any time of
determination means all of the Owner Participants thus referred to in the
Indentures.
Owner Trustee: with respect to any Equipment Note relating to a Leased
Aircraft, means the "Owner Trustee", as referred to in the Indenture pursuant to
which such Equipment Note is issued, not in its individual capacity but solely
as trustee; and "Owner Trustees" means all of the Owner Trustees party to any of
the Indentures.
Owner Trustee's Purchase Agreement: means, with respect to any Leased
Aircraft, the agreement between the Company and the relevant Owner Trustee
pursuant to which, inter alia, the Company assigns to the Owner Trustee certain
rights of the Company under the aircraft purchase agreement with respect to such
Leased Aircraft.
Participation Agreement: means each Participation Agreement to be
entered into, or entered into (as the case may be), by the Trustee pursuant to
the Note Purchase Agreement, as the same may be amended, supplemented or
otherwise modified in accordance with its terms.
Permanent Offshore Global Certificate: has the meaning specified in
Section 8.01(c) of this Trust Supplement.
Physical Certificates: has the meaning specified in Section 8.01(d) of
this Trust Supplement.
Placement Agents: means, collectively, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, Deutsche Bank Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
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Placement Agreement: means the Placement Agreement dated January 20,
2000 among the Placement Agents and the Company, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
Pool Balance: means, as of any date, (i) the original aggregate face
amount of the Applicable Certificates less (ii) the aggregate amount of all
payments made in respect of such Applicable Certificates or in respect of the
Deposit relating to the Applicable Trust other than payments made in respect of
interest or premium thereon or reimbursement of any costs or expenses incurred
in connection therewith. The Pool Balance as of any Distribution Date shall be
computed after giving effect to any special distribution with respect to the
unused Deposit, payment of principal of the Equipment Notes or payment with
respect to other Trust Property and the distribution thereof to be made on that
date.
Pool Factor: means, as of any Distribution Date, the quotient (rounded
to the seventh decimal place) computed by dividing (i) the Pool Balance by (ii)
the original aggregate face amount of the Applicable Certificates. The Pool
Factor as of any Distribution Date shall be computed after giving effect to any
special distribution with respect to the unused Deposit, payment of principal of
the Equipment Notes or payments with respect to other Trust Property and the
distribution thereof to be made on that date.
Prepayment Withdrawal Certificate: has the meaning specified in the
Escrow Agreement.
Private Placement Legend: has the meaning specified in Section 8.02(a)
of this Trust Supplement.
QIB: means a qualified institutional buyer as defined in Rule 144A.
Registration Event: has the meaning set forth in the Registration
Rights Agreement.
Registration Rights Agreement: means the Registration Rights Agreement
dated January 28, 2000 among the Placement Agents, the Trustee, the Other
Trustees and the Company, as amended, supplemented or otherwise modified from
time to time in accordance with its terms.
Registration Statement: has the meaning set forth in the Registration
Rights Agreement.
Regulation S: means Regulation S under the Securities Act or any
successor regulation thereto.
Rule 144A: means Rule 144A under the Securities Act or any successor
rule thereto.
Scheduled Delivery Date: has the meaning specified in the Note Purchase
Agreement.
Securities Act: means the U.S. Securities Act of 1933, as amended.
Shelf Registration Statement: has the meaning set forth in the
Registration Rights Agreement.
Special Payment: means any payment (other than a Scheduled Payment) in
respect of, or any proceeds of, any Equipment Note, Trust Indenture Estate (as
defined in each Leased Aircraft Indenture), or Collateral (as defined in each
Owned Aircraft Indenture) or any Special Redemption Premium.
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Special Redemption Premium: means the premium payable by the Company
pursuant to Section 3(a)(i) of the Note Purchase Agreement.
Substitute Aircraft: has the meaning specified in the Note Purchase
Agreement.
Temporary Offshore Global Certificate: has the meaning specified in
Section 8.01(c) of this Trust Supplement.
Triggering Event: has the meaning assigned to such term in the
Intercreditor Agreement.
Trust Property: means (i) subject to the Intercreditor Agreement, the
Equipment Notes held as the property of the Applicable Trust, all monies at any
time paid thereon and all monies due and to become due thereunder, (ii) funds
from time to time deposited in the Certificate Account and the Special Payments
Account and, subject to the Intercreditor Agreement, any proceeds from the sale
by the Trustee pursuant to Article VI of the Basic Agreement of any Equipment
Note and (iii) all rights of the Applicable Trust and the Trustee, on behalf of
the Applicable Trust, under the Intercreditor Agreement, the Escrow Agreement,
the Note Purchase Agreement and the Liquidity Facility, including, without
limitation, all rights to receive certain payments thereunder, and all monies
paid to the Trustee on behalf of the Applicable Trust pursuant to the
Intercreditor Agreement or the Liquidity Facility, provided that rights with
respect to the Deposit or under the Escrow Agreement, except for the right to
direct withdrawals for the purchase of Equipment Notes to be held herein, will
not constitute Trust Property.
Trust Supplement: has the meaning specified in the first paragraph of
this Trust Supplement.
U.S. Global Certificate: has the meaning specified in Section 8.01(b)
of this Trust Supplement.
U.S. Physical Certificates: has the meaning specified in Section
8.01(d) of this Trust Supplement.
ARTICLE III
STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. ADDITIONS TO ARTICLE IV OF THE BASIC AGREEMENT. In
addition to the provisions of Article IV of the Basic Agreement, the following
provisions shall apply to the Applicable Trust:
(a) Upon the payment of Special Redemption Premium to the Trustee under
the Note Purchase Agreement, the Trustee, upon receipt thereof, shall
immediately deposit the aggregate amount of such Special Redemption Premium in
the Special Payments Account;
(b) The distribution of amounts of Special Redemption Premium as
provided for in Section 4.02(b) of the Basic Agreement shall be on the Special
Distribution Date with respect to such Special Payment or as soon thereafter as
the Trustee has confirmed receipt of the related Special Redemption Premium;
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(c) In the event of the payment of a Special Redemption Premium by the
Company to the Trustee under the Note Purchase Agreement, the notice provided
for in Section 4.02(c) of the Basic Agreement shall be mailed, together with the
notice by the Escrow Paying Agent under Section 2.06 of the Escrow Agreement,
not less than 15 days prior to the Special Distribution Date for such amount,
which Special Distribution Date shall be the Final Withdrawal Date; and
(d) The last sentence of the first paragraph of Section 4.02(c) of the
Basic Agreement shall apply equally if the amount of Special Redemption Premium,
if any, has not been calculated at the time the Trustee mails notice of a
Special Payment.
Section 3.02. STATEMENTS TO APPLICABLE CERTIFICATEHOLDERS. (a) On each
Distribution Date, the Trustee will include with each distribution to Applicable
Certificateholders of a Scheduled Payment or Special Payment, as the case may
be, a statement setting forth the information provided below (in the case of a
Special Payment, reflecting in part the information provided by the Escrow
Paying Agent under the Escrow Agreement). Such statement shall set forth (per
$1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v) below)
the following information:
(i) the aggregate amount of funds distributed on such Distribution Date
under the Agreement and under the Escrow Agreement, indicating the
amount allocable to each source;
(ii) the amount of such distribution under the Agreement allocable to
principal and the amount allocable to premium (including any premium
paid with respect to unused Deposits), if any;
(iii) the amount of such distribution under the Agreement allocable to
interest;
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to unused Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name of a
Clearing Agency, on the Record Date prior to each Distribution Date, the Trustee
will request from such Clearing Agency a securities position listing setting
forth the names of all Clearing Agency Participants reflected on such Clearing
Agency's books as holding interests in the Applicable Certificates on such
Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each calendar
year but not later than the latest date permitted by law, the Trustee shall
furnish to each Person who at any time during such calendar year was an
Applicable Certificateholder of record a statement containing the sum of the
amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and
(a)(v) above for such calendar year or, in the event such Person was an
Applicable Certificateholder of record during a portion of such calendar year,
for such portion of such year, and such other items as are readily available to
the Trustee and which an Applicable Certificateholder
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shall reasonably request as necessary for the purpose of such Applicable
Certificateholder's preparation of its federal income tax returns. Such
statement and such other items shall be prepared on the basis of information
supplied to the Trustee by the Clearing Agency Participants and shall be
delivered by the Trustee to such Clearing Agency Participants to be available
for forwarding by such Clearing Agency Participants to the holders of interests
in the Applicable Certificates in the manner described in Section 3.02(a) of
this Trust Supplement.
(c) If the aggregate principal payments scheduled for January 2, 2001,
on the Equipment Notes held as Trust Property as of December 8, 2000, differs
from the amount thereof set forth for the Applicable Certificates on page 47 of
the Offering Memorandum, by no later than December 15, 2000 the Trustee shall
mail written notice of the actual amount of such scheduled payments to the
Applicable Certificateholders of record as of a date within 10 Business Days
prior to the date of mailing.
(d) Promptly following (i) any reoptimization and the Delivery Period
Termination Date, in each case if there has been any change in the information
set forth in clauses (x), (y) and (z) below from that set forth in page 47 of
the Offering Memorandum, and (ii) any early redemption or purchase of, or any
default in the payment of principal or interest in respect of, any of the
Equipment Notes held in the Applicable Trust, or any Final Withdrawal, the
Trustee shall furnish to Applicable Certificateholders of record on such date a
statement setting forth (x) the expected Pool Balances for each subsequent
Regular Distribution Date following the Delivery Period Termination Date, (y)
the related Pool Factors for such Regular Distribution Dates and (z) the
expected principal distribution schedule of the Equipment Notes, in the
aggregate, held as Trust Property at the date of such notice. With respect to
the Applicable Certificates registered in the name of a Clearing Agency, on the
Delivery Period Termination Date, the Trustee will request from such Clearing
Agency a securities position listing setting forth the names of all Clearing
Agency Participants reflected on such Clearing Agency's books as holding
interests in the Applicable Certificates on such date. The Trustee will mail to
each such Clearing Agency Participant the statement described above and will
make available additional copies as requested by such Clearing Agency
Participant for forwarding to holders of interests in the Applicable
Certificates.
(e) This Section 3.02 supersedes and replaces Section 4.03 of the Basic
Agreement, with respect to the Applicable Trust.
ARTICLE IV
DEFAULT
Section 4.01. PURCHASE RIGHTS OF CERTIFICATEHOLDERS. (a) At any time
after the occurrence and during the continuance of a Triggering Event, each
Applicable Certificateholder shall have the right (which shall not expire upon
any purchase of the Class A Certificates pursuant to the Class B Trust
Agreement) to purchase, for the purchase prices set forth in the Class A Trust
Agreement and the Class B Trust Agreement, respectively, all, but not less than
all, of the Class A Certificates and the Class B Certificates upon ten days'
written notice to the Class A Trustee, and the Class B Trustee and each other
Applicable Certificateholder, provided that (i) if prior to the end of such
ten-day period any other Applicable Certificateholder notifies such purchasing
Applicable Certificateholder that such other Applicable Certificateholder wants
to participate in such purchase, then such other Applicable Certificateholder
may join with the purchasing Applicable Certificateholder to purchase all, but
not less than all, of the Class A Certificates and the Class B Certificates pro
rata based on the Fractional Undivided Interest held by each such Applicable
Certificateholder and (ii) if prior to the end of such ten-day period any other
Applicable Certificateholder fails to
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notify the purchasing Applicable Certificateholder of such other Applicable
Certificateholder's desire to participate in such a purchase, then such other
Applicable Certificateholder shall lose its right to purchase the Class A
Certificates and the Class B Certificates pursuant to this Section 4.01(a).
(b) By acceptance of its Applicable Certificate, each Applicable
Certificateholder agrees that at any time after the occurrence and during the
continuation of a Triggering Event, each holder of a Class D Certificate (a
"Class D Certificateholder") shall have the right (which shall not expire upon
any purchase of the Class A Certificates pursuant to the Class B Trust Agreement
or any purchase of the the Class B Certificates pursuant to clause (a) above) to
purchase all, but not less than all, of the Applicable Certificates, the Class A
Certificates and the Class B Certificates upon ten days' written notice to the
Trustee, the Class A Trustee, the Class B Trustee and each other Class D
Certificateholder, provided that (A) if prior to the end of such ten-day period
any other Class D Certificateholder notifies such purchasing Class D
Certificateholder that such other Class D Certificateholder wants to participate
in such purchase, then such other Class D Certificateholder may join with the
purchasing Class D Certificateholder to purchase all, but not less than all, of
the Applicable Certificates, the Class A Certificates and the Class B
Certificates pro rata based on the Fractional Undivided Interest in the Class D
Trust held by each such Class D Certificateholder and (B) if prior to the end of
such ten-day period any other Class D Certificateholder fails to notify the
purchasing Class D Certificateholder of such other Class D Certificateholder's
desire to participate in such a purchase, then such other Class D
Certificateholder shall lose its right to purchase the Applicable Certificates,
the Class A Certificates and the Class B Certificates pursuant to this Section
4.01(b).
The purchase price with respect to the Applicable Certificates shall be
equal to the Pool Balance of the Applicable Certificates, together with accrued
and unpaid interest thereon to the date of such purchase, without premium, but
including any other amounts then due and payable to the Applicable
Certificateholders under the Agreement, the Intercreditor Agreement, the Escrow
Agreement or any Note Document or on or in respect of the Applicable
Certificates; provided, however, that (x) if such purchase occurs after a record
date specified in Section 2.03 of the Escrow Agreement relating to the
distribution of unused Deposits and/or accrued and unpaid interest on Deposits
and prior to or on the related distribution date thereunder, such purchase price
shall be reduced by the aggregate amount of unused Deposits and/or interest to
be distributed under the Escrow Agreement (which deducted amounts shall remain
distributable to, and may be retained by, the Applicable Certificateholder as of
such record date) and (y) if such purchase occurs after a Record Date and prior
to or on the related Distribution Date, such purchase price shall be reduced by
the amount to be distributed under this Agreement on the related Distribution
Date (which deducted amounts shall remain distributable to, and may be retained
by, the Applicable Certificateholder as of such Record Date); provided further
that no such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the
Agreement and the Other Agreements, the Applicable Certificates, the Class A
Certificates and the Class B Certificates which are senior to the securities
held by such purchaser(s). Each payment of the purchase price of the Applicable
Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the Trustee and each such purchase shall be
subject to the terms of this Section 4.01(b). Each Applicable Certificateholder
agrees by its acceptance of its Applicable Certificate that (at any time after
the occurrence and during the continuation of a Triggering Event) it will, upon
payment from such Class D Certificateholder(s), as the case may be, of the
purchase price set forth in the first sentence of this paragraph, forthwith
sell, assign, transfer and convey to the purchaser(s) thereof (without recourse,
representation or warranty of any kind except for its own acts), all of the
right, title, interest and obligation of such Applicable Certificateholder in
the Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor
Agreement, the Liquidity Facility, the Note Purchase Agreement, the Note
Documents and all Applicable Certificates and Escrow Receipts held by such
Applicable Certificateholder (subject to clauses (x) and (y) in the first
sentence of this paragraph and excluding all right,
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title and interest under any of the foregoing to the extent such right, title or
interest is with respect to an obligation not then due and payable as respects
any action or inaction or state of affairs occurring prior to such sale) and the
purchaser shall assume all of such Applicable Certificateholder's obligations
under the Agreement, the Escrow Agreement, the Deposit Agreement, the
Intercreditor Agreement, the Liquidity Facility, the Note Purchase Agreement,
the Note Documents and all such Applicable Certificates and Escrow Receipts).
The Applicable Certificates will be deemed to be purchased on the date payment
of the purchase price is made notwithstanding the failure of the Applicable
Certificateholders to deliver any Applicable Certificates and, upon such a
purchase, (I) the only rights of the Applicable Certificateholders will be to
deliver the Applicable Certificates to the purchaser(s) and receive the purchase
price for such Applicable Certificates and (II) if the purchaser(s) shall so
request, such Applicable Certificateholder will comply with all the provisions
of Section 3.04 of the Basic Agreement to enable new Applicable Certificates to
be issued to the purchaser in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new Applicable
Certificates shall be borne by the purchaser thereof.
As used in this Section 4.01 and elsewhere in this Trust Supplement,
the terms "Class A Certificate", "Class A Certificateholder", "Class A Trust",
"Class A Trustee", "Class B Certificate", "Class B Certificateholder", "Class B
Trust", "Class B Trustee", "Class D Certificate" and "Class D Trust", shall have
the respective meanings assigned to such terms in the Intercreditor Agreement.
(c) This Section 4.01 supersedes and replaces Section 6.01(b) of the
Basic Agreement, with respect to the Applicable Trust.
ARTICLE V
THE TRUSTEE
Section 5.01. DELIVERY OF DOCUMENTS; DELIVERY DATES. (a) The Trustee is
hereby directed (i) to execute and deliver the Intercreditor Agreement, the
Escrow Agreement and the Note Purchase Agreement on or prior to the Issuance
Date, each in the form delivered to the Trustee by the Company, and (ii) subject
to the respective terms thereof, to perform its obligations thereunder. Upon
request of the Company and the satisfaction or waiver of the closing conditions
specified in the Placement Agreement, the Trustee shall execute, deliver,
authenticate, issue and sell Applicable Certificates in authorized denominations
equaling in the aggregate the amount set forth, with respect to the Applicable
Trust, in Schedule I to the Placement Agreement evidencing the entire ownership
interest in the Applicable Trust, which amount equals the maximum aggregate
principal amount of Equipment Notes which may be purchased by the Trustee
pursuant to the Note Purchase Agreement. Except as provided in Sections 3.03,
3.04, 3.05 and 3.06 of the Basic Agreement, the Trustee shall not execute,
authenticate or deliver Applicable Certificates in excess of the aggregate
amount specified in this paragraph. The provisions of this Section 5.01(a)
supersede and replace the first sentence of Section 3.02(a) of the Basic
Agreement, with respect to the Applicable Trust.
(b) On or after the Issuance Date, the Company may deliver from time to
time to the Trustee a Delivery Notice relating to one or more Equipment Notes.
After receipt of a Delivery Notice and in any case no later than one Business
Day prior to a Scheduled Delivery Date as to which such Delivery Notice relates
(the "Applicable Delivery Date"), the Trustee shall (as and when specified in
the Delivery Notice) instruct the Escrow Agent to provide a Notice of Purchase
Withdrawal to the Depositary requesting (A) the withdrawal of all or a portion
of the Deposit on the Applicable Delivery Date in accordance with and to the
extent permitted by
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the terms of the Escrow Agreement and the Deposit Agreement and (B) the payment
of all, or a portion, of such Deposit in an amount equal in the aggregate to the
purchase price of such Equipment Notes to or on behalf of the Owner Trustee or
the Company, as the case may be, issuing such Equipment Notes, all as shall be
described in the Delivery Notice. The Trustee shall (as and when specified in
such Delivery Notice), subject to the conditions set forth in Section 2 of the
Note Purchase Agreement, enter into and perform its obligations under the
Participation Agreement specified in such Delivery Notice (the "Applicable
Participation Agreement") and cause such certificates, documents and legal
opinions relating to the Trustee to be duly delivered as required by the
Applicable Participation Agreement. If at any time prior to the Applicable
Delivery Date, the Trustee receives a notice of postponement pursuant to Section
1(e) or 1(f) of the Note Purchase Agreement, then the Trustee shall give the
Depositary (with a copy to the Escrow Agent) a notice of cancellation of such
Notice of Purchase Withdrawal relating to such Deposit on such Applicable
Delivery Date. Upon satisfaction of the conditions specified in the Note
Purchase Agreement and the Applicable Participation Agreement, the Trustee shall
purchase the applicable Equipment Notes with the proceeds of the withdrawals of
all or a portion of the Deposit made on the Applicable Delivery Date in
accordance with the terms of the Deposit Agreement and the Escrow Agreement. The
purchase price of such Equipment Notes shall equal the principal amount of such
Equipment Notes. Amounts withdrawn from such Deposit in excess of the purchase
price of the Equipment Notes or to the extent not applied on the Applicable
Delivery Date to the purchase price of the Equipment Notes, shall be
re-deposited by the Trustee with the Depositary on the Applicable Delivery Date
in accordance with the terms of the Deposit Agreement. The provisions of this
Section 5.01(b) supersede and replace the provisions of Section 2.02 of the
Basic Agreement, with respect to the Applicable Trust, and all provisions of the
Basic Agreement relating to Postponed Notes and Section 2.02 of the Basic
Agreement shall not apply to the Applicable Trust.
(c) The Trustee acknowledges its acceptance of all right, title and
interest in and to the Trust Property to be acquired pursuant to Section 5.01(b)
of this Trust Supplement, the Note Purchase Agreement and each Applicable
Participation Agreement, and declares that it holds and will hold such right,
title and interest for the benefit of all present and future Applicable
Certificateholders, upon the trusts set forth in this Agreement. By its
acceptance of an Applicable Certificate, each initial Applicable
Certificateholder, as a grantor of the Applicable Trust, joins with the Trustee
in the creation of the Applicable Trust. The provisions of this Section 5.01(c)
supersede and replace the provisions of Section 2.03 of the Basic Agreement,
with respect to the Applicable Trust.
Section 5.02. WITHDRAWAL OF DEPOSITS. (a) If the Company shall receive
written notice from Boeing that the delivery date of any Aircraft will be
delayed beyond the Delivery Period Termination Date, the Company may deliver to
the Trustee written notice to such effect and requesting that the Trustee
deliver to the Escrow Agent a Prepayment Withdrawal Certificate pursuant to the
Escrow Agreement directing the Escrow Agent to provide a Notice of Prepayment
Withdrawal to the Depositary requesting the withdrawal of all or a portion of
the Deposit relating to Equipment Notes in respect of such Aircraft in
accordance with and to the extent permitted by the terms of the Escrow Agreement
and the Deposit Agreement.
(b) If any portion of the Deposit remains outstanding on the Business
Day next succeeding the Cut-off Date, the Trustee shall (i) give the Escrow
Agent notice that the Trustee's obligation to purchase Equipment Notes under the
Note Purchase Agreement has terminated and instruct the Escrow Agent to provide
a notice of Final Withdrawal to the Depositary substantially in the form of
Exhibit B to the Deposit Agreement (the "Final Withdrawal Notice") and (ii)
shall make demand upon the Company pursuant to the Note Purchase Agreement for
an amount equal to the Deposit Make Whole Amount, if any, such payment to be
made on the Final Withdrawal Date.
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Section 5.03. THE TRUSTEE. (a) Subject to Section 5.04 of this Trust
Supplement and Section 7.15 of the Basic Agreement, the Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement, the Note Purchase
Agreement or the Escrow Agreement or the due execution hereof or thereof by the
Company or the other parties thereto (other than the Trustee), or for or in
respect of the recitals and statements contained herein or therein, all of which
recitals and statements are made solely by the Company, except that the Trustee
hereby represents and warrants that each of this Trust Supplement, the Basic
Agreement, each Applicable Certificate, the Intercreditor Agreement, the Note
Purchase Agreement and the Escrow Agreement has been executed and delivered by
one of its officers who is duly authorized to execute and deliver such document
on its behalf.
(b) Except as herein otherwise provided and except during the
continuance of an Event of Default in respect of the Applicable Trust created
hereby, no duties, responsibilities or liabilities are assumed, or shall be
construed to be assumed, by the Trustee by reason of this Trust Supplement other
than as set forth in the Agreement, and this Trust Supplement is executed and
accepted on behalf of the Trustee, subject to all the terms and conditions set
forth in the Agreement, as fully to all intents as if the same were herein set
forth at length.
Section 5.04. REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE. The
Trustee hereby represents and warrants that:
(a) the Trustee has full power, authority and legal right to execute,
deliver and perform this Trust Supplement, the Intercreditor Agreement, the
Escrow Agreement, the Note Purchase Agreement and the Note Documents to which it
is or is to become a party and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Supplement, the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement and
the Note Documents to which it is or is to become a party;
(b) the execution, delivery and performance by the Trustee of this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the Note
Purchase Agreement and the Note Documents to which it is or is to become a party
(i) will not violate any provision of any United States federal law or the law
of the state of the United States where it is located governing the banking and
trust powers of the Trustee or any order, writ, judgment, or decree of any
court, arbitrator or governmental authority applicable to the Trustee or any of
its assets, (ii) will not violate any provision of the articles of association
or by-laws of the Trustee, and (iii) will not violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of any lien on any properties included in the
Trust Property pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation, default
or lien could reasonably be expected to have an adverse effect on the Trustee's
performance or ability to perform its duties hereunder or thereunder or on the
transactions contemplated herein or therein;
(c) the execution, delivery and performance by the Trustee of this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the Note
Purchase Agreement and the Note Documents to which it is or is to become a party
will not require the authorization, consent, or approval of, the giving of
notice to, the filing or registration with, or the taking of any other action in
respect of, any governmental authority or agency of the United States or the
state of the United States where it is located regulating the banking and
corporate trust activities of the Trustee; and
(d) this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the Note Purchase Agreement and the Note Documents to which it is or
is to become a party have been, or will be, as applicable, duly executed and
delivered by the Trustee and constitute, or will constitute, as applicable, the
legal, valid and binding agreements of the Trustee, enforceable against it in
accordance with their respective terms;
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provided, however, that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and (ii) general principles of equity.
Section 5.05. TRUSTEE LIENS. The Trustee in its individual capacity
agrees, in addition to the agreements contained in Section 7.17 of the Basic
Agreement, that it will at its own cost and expense promptly take any action as
may be necessary to duly discharge and satisfy in full any Trustee's Liens on or
with respect to the Trust Property which is attributable to the Trustee in its
individual capacity and which is unrelated to the transactions contemplated by
the Intercreditor Agreement or the Note Purchase Agreement.
ARTICLE VI
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section 6.01. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Without limitation of Section 9.01 of the Basic Agreement,
under the terms of, and subject to the limitations contained in, Section 9.01 of
the Basic Agreement, the Company may (but will not be required to), and the
Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the Company's
request, at any time and from time to time, (i) enter into one or more
agreements supplemental to the Escrow Agreement, the Note Purchase Agreement or
the Deposit Agreement, for any of the purposes set forth in clauses (a) through
(i) of such Section 9.01, and (without limitation of the foregoing or Section
9.01 of the Basic Agreement) clauses (b) and (c) of such Section 9.01 shall also
be deemed to include the Company's obligations under (in the case of clause
(b)), and the Company's rights and powers conferred by (in the case of clause
(c)), the Note Purchase Agreement and references in clauses (d), (f) and (g) of
such Section 9.01 to "any Intercreditor Agreement or any Liquidity Facility"
shall also be deemed to refer to "the Intercreditor Agreement, the Liquidity
Facility, the Escrow Agreement, the Note Purchase Agreement or the Deposit
Agreement" and (ii) enter into one or more agreements supplemental to the Basic
Agreement to provide for the formation of a Class D Trust, the issuance of Class
D Certificates, the purchase by the Class D Trust of Equipment Notes and other
matters incidental thereto or otherwise contemplated by Section 2.01(b) of the
Basic Agreement.
Section 6.02. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Without limitation of Section 9.02 of the Basic Agreement,
the provisions of Section 9.02 of the Basic Agreement shall apply to agreements
or amendments for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement or the Note Purchase Agreement or modifying in any manner the rights
and obligations of the Applicable Certificateholders under the Escrow Agreement,
the Deposit Agreement or the Note Purchase Agreement; provided that the
provisions of Section 9.02(a) of the Basic Agreement shall be deemed to include
reductions in any manner of, or delay in the timing of, any receipt by the
Applicable Certificateholders of payments upon the Deposits.
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ARTICLE VII
TERMINATION OF TRUST
Section 7.01. TERMINATION OF THE APPLICABLE TRUST. (a) The respective
obligations and responsibilities of the Company and the Trustee with respect to
the Applicable Trust shall terminate upon distribution to all Applicable
Certificateholders and the Trustee of all amounts required to be distributed to
them pursuant to this Agreement and the disposition of all property held as part
of the Trust Property; provided, however, that in no event shall the Applicable
Trust continue beyond one hundred ten (110) years following the date of the
execution of this Trust Supplement.
ARTICLE VIII
THE CERTIFICATES
Section 8.01. ADDITIONS TO ARTICLE III OF THE BASIC AGREEMENT. In
addition to the provisions of Article III of the Basic Agreement, the following
provisions shall apply to the Applicable Trust:
(a) The Initial Certificates will be issued in minimum denominations of
$100,000 or integral multiples of $1,000 in excess thereof. The Exchange
Certificates will be issued in denominations of $1,000 or integral multiples
thereof. Each Exchange Certificate shall be dated the date of its
authentication. The aggregate Fractional Undivided Interest of Applicable
Certificates shall not at any time exceed $47,937,000;
(b) Initial Certificates offered and sold in reliance on Rule 144A
shall be issued initially in the form of one or more global Certificates in
definitive, fully registered form without interest coupons, substantially in the
form set forth as Exhibit A hereto (the "U.S. Global Certificate"), duly
executed and authenticated by the Trustee as hereinafter provided. The U.S.
Global Certificate will be registered in the name of a nominee for DTC and
deposited with the Trustee, as custodian for DTC. The aggregate principal amount
of the U.S. Global Certificate may from time to time be increased or decreased
by adjustments made on the records of DTC or its nominee, or of the Trustee, as
custodian for DTC or its nominee, as hereinafter provided;
(c) Initial Certificates offered and sold in offshore transactions in
reliance on Regulation S shall be issued initially in the form of one or more
temporary global Certificates in definitive, fully registered form without
interest coupons, substantially in the form set forth as Exhibit A hereto (the
"Temporary Offshore Global Certificate") duly executed and authenticated by the
Trustee as hereinafter provided. The Temporary Offshore Global Certificate will
be registered in the name of a nominee of DTC for credit to the account of the
Agent Members acting as depositaries for Euroclear and Cedel and deposited with
the Trustee as custodian for DTC. At any time following March 9, 2000 (the
"Offshore Certificates Exchange Date"), upon receipt by the Trustee of a
certificate substantially in the form of Exhibit B hereto, a single permanent
global Certificate in registered form substantially in the form set forth in
Exhibit A (the "Permanent Offshore Global Certificate"; and together with the
Temporary Offshore Global Certificate, the "Offshore Global Certificates"), duly
executed and authenticated by the Trustee as hereinafter provided, shall be
registered in the name of a nominee for DTC and deposited with the Trustee, as
custodian for DTC, and the Registrar shall reflect on its books and records the
date of such transfer and a decrease in the principal amount of any Temporary
Offshore Global Certificate in an
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amount equal to the principal amount of the beneficial interest in such
Temporary Offshore Global Certificate transferred. The U.S. Global Certificate
and the Offshore Global Certificates are sometimes referred to as the "Global
Certificates";
(d) Initial Certificates offered and sold to Institutional Accredited
Investors shall be issued in the form of permanent certificated Certificates in
registered form in substantially the form set forth as Exhibit A hereto (the
"U.S. Physical Certificates"). Certificates issued pursuant to Section 8.04(b)
in exchange for interests in any Offshore Global Certificate shall be in the
form of permanent certificated Certificates in registered form substantially in
the form set forth in Exhibit A (the "Offshore Physical Certificates"). The
Offshore Physical Certificates and U.S. Physical Certificates are sometimes
collectively herein referred to as the "Physical Certificates";
(e) The Exchange Certificates shall be issued in the form of one or
more global Certificates substantially in the form of Exhibit A hereto (each, a
"Global Exchange Certificate"), except that (i) the Private Placement Legend
(hereinafter defined) shall be omitted and (ii) such Exchange Certificates shall
contain such appropriate insertions, omissions, substitutions and other
variations from the form set forth in Exhibit A hereto relating to the nature of
the Exchange Certificates as the Responsible Officer of the Trustee executing
such Exchange Certificates on behalf of the Trust may determine, as evidenced by
such officer's execution on behalf of the Trust of such Exchange Certificates.
Such Global Exchange Certificates shall be in registered form and be registered
in the name of DTC and deposited with the Trustee, at its Corporate Trust
Office, as custodian for DTC. The aggregate principal amount of any Global
Exchange Certificate may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC for such
Global Exchange Certificate, which adjustments shall be conclusive as to the
aggregate principal amount of any such Global Exchange Certificate. Subject to
clause (i) and (ii) of the first sentence of this Section 8.01(e), the terms
hereof applicable to U.S. Global Certificates and/or Global Certificates shall
apply to the Global Exchange Certificates, mutatis mutandis;
(f) The definitive Applicable Certificates shall be in registered form
and shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner, all as
determined by the officers executing such Applicable Certificates, as evidenced
by their execution of such Applicable Certificates.
Section 8.02. RESTRICTIVE LEGENDS. (a) Subject to Section 8.05, unless
and until (i) an Initial Certificate is sold under an effective Shelf
Registration Statement or (ii) an Initial Certificate is exchanged for an
Exchange Certificate pursuant to an effective Exchange Offer Registration
Statement, in each case as provided for in the Registration Rights Agreement,
each Global Certificate (other than the Permanent Offshore Global Certificate)
and each U.S. Physical Certificate shall bear the following legend (the "Private
Placement Legend") on the face thereof:
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
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UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS CERTIFICATE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2)
AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE TRANSFER
THIS CERTIFICATE EXCEPT (A) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (B) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE
AGGREGATE PRINCIPAL AMOUNT OF SUCH CERTIFICATE, THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS CERTIFICATE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER), OR (F) TO ATLAS OR ANY SUBSIDIARY
THEREOF; (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO
CLAUSE 2(E) ABOVE), IT WILL FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE
TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE PRIOR TO
THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR IS A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE, SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
CERTIFICATES PURSUANT TO CLAUSE 2(E) ABOVE OR UPON ANY TRANSFER OF THE
CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION). AS USED HEREIN, THE TERMS
▇▇
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"▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇", "▇▇▇▇▇▇ ▇▇▇▇▇▇" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE PASS THROUGH
TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.](a)
(b) Each Global Certificate shall also bear the following legend on the
face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 8.04 AND 8.05 OF THE TRUST SUPPLEMENT TO
THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.
Section 8.03. TRANSFER AND EXCHANGE. An Applicable Certificateholder
may transfer an Applicable Certificate by written application to the Registrar
stating the name of the proposed transferee and otherwise complying with the
terms of this Agreement, including providing a written certificate or other
evidence of compliance with any restrictions on transfer. No such transfer shall
be effected until, and such transferee shall succeed to the rights of an
Applicable Certificateholder only upon, final acceptance and registration of the
transfer by the Registrar in the Register. Prior to the registration of any
transfer by an Applicable Certificateholder as provided herein, the Trustee
shall treat the person in whose name the Applicable Certificate is registered as
the owner thereof for all purposes, and the Trustee shall not be affected by
notice to the contrary. Furthermore, DTC shall, by acceptance of a Global
Certificate, agree that transfers of beneficial interests in such Global
Certificate may be effected only through a book-entry system maintained by DTC
(or its agent), and that ownership of a beneficial interest in the Certificate
shall be required to be reflected in a book entry. When Applicable Certificates
are presented to the Registrar with a request to register the transfer or to
exchange them for an equal face amount of Applicable Certificates of other
authorized denominations, the
--------------
(a) Not to be included on the face of the Permanent Offshore Global
Certificate.
22
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Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met. To permit registrations of transfers
and exchanges in accordance with the terms, conditions and restrictions hereof,
the Trustee shall execute and authenticate Applicable Certificates at the
Registrar's request.
Section 8.04. BOOK-ENTRY PROVISIONS FOR U.S. GLOBAL CERTIFICATE AND
OFFSHORE GLOBAL CERTIFICATES. (a) Members of, or participants in, DTC ("Agent
Members") shall have no rights under this Agreement with respect to any Global
Certificate held on their behalf by DTC, or the Trustee as its custodian, and
DTC may be treated by the Trustee and any agent of the Trustee as the absolute
owner of such Global Certificate for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Trustee or any agent of the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by DTC or shall impair, as between DTC and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a holder of any Applicable Certificate. Upon the issuance of any
Global Certificate, the Registrar or its duly appointed agent shall record a
nominee of DTC as the registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited to transfers
of such Global Certificate or Offshore Global Certificate in whole, but not in
part, to nominees of DTC, its successor or such successor's nominees. Beneficial
interests in the U.S. Global Certificate and any Offshore Global Certificate may
be transferred in accordance with the rules and procedures of DTC and the
provisions of Section 8.05. Beneficial interests in the U.S. Global Certificate
or an Offshore Global Certificate shall be delivered to all beneficial owners in
the form of U.S. Physical Certificates or Offshore Physical Certificates, as the
case may be, if (i) DTC notifies the Trustee that it is unwilling or unable to
continue as depositary for the U.S. Global Certificate or such Offshore Global
Certificate, as the case may be, and a successor depositary is not appointed by
the Trustee within 90 days of such notice or (ii) an Event of Default has
occurred and Applicable Certificateholders with fractional undivided interests
aggregating not less than a majority in interest in the Applicable Trust advise
the Trustee, the Company and DTC through Agent Members in writing that the
continuation of a book-entry system through DTC (or a successor thereto) is no
longer in the Applicable Certificateholders' best interests.
(c) Any beneficial interest in one of the Global Certificates that is
transferred to a Person who takes delivery in the form of an interest in the
other Global Certificate will, upon such transfer, cease to be an interest in
such Global Certificate and become an interest in the other Global Certificate
and, accordingly, will thereafter be subject to all transfer restrictions, if
any, and other procedures applicable to beneficial interests in such other
Global Certificate for as long as it remains such an interest.
(d) In connection with the transfer of the entire U.S. Global
Certificate or an entire Offshore Global Certificate to the beneficial owners
thereof pursuant to paragraph (b) of this Section 8.04, such U.S. Global
Certificate or Offshore Global Certificate, as the case may be, shall be deemed
to be surrendered to the Trustee for cancellation, and the Trustee shall
execute, authenticate and deliver, to each beneficial owner identified by DTC in
exchange for its beneficial interest in such U.S. Global Certificate or Offshore
Global Certificate, as the case may be, an equal aggregate principal amount of
U.S. Physical Certificates or Offshore Physical Certificates, as the case may
be, of authorized denominations.
(e) Any U.S. Physical Certificate delivered in exchange for an interest
in the U.S. Global Certificate pursuant to paragraph (b) of this Section 8.04
shall, except as otherwise provided by paragraph (f) of Section 8.05, bear the
Private Placement Legend.
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(f) Any Offshore Physical Certificate delivered in exchange for an
interest in an Offshore Global Certificate pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph (f) of Section 8.05,
bear the applicable legend regarding transfer restrictions set forth in Section
8.02(a).
(g) The registered holder of the U.S. Global Certificate or any
Offshore Global Certificate may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Agreement or the Applicable Certificates.
Section 8.05. SPECIAL TRANSFER PROVISIONS. Unless and until (i) an
Initial Certificate is sold under an effective Shelf Registration Statement, or
(ii) an Initial Certificate is exchanged for an Exchange Certificate pursuant to
an effective Exchange Offer Registration Statement, in each case pursuant to the
Registration Rights Agreement, the following provisions shall apply to such
Initial Certificates:
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Applicable Certificate to any Institutional Accredited
Investor which is not a QIB (excluding transfers to or by Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Applicable
Certificate, whether or not such Applicable Certificate bears the
Private Placement Legend, if (x) the requested transfer is after
the time period referred to in Rule 144(k) under the Securities
Act as in effect with respect to such transfer or (y) the
proposed transferee has delivered to the Registrar a letter
substantially in the form of Exhibit D hereto and the aggregate
principal amount of the Applicable Certificates being transferred
is at least $100,000.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Certificate, upon receipt
by the Registrar of (x) the documents, if any, required by
paragraph (i) and (y) instructions given in accordance with DTC's
and the Registrar's procedures, the Registrar shall reflect on
its books and records the date of the transfer and a decrease in
the principal amount of such U.S. Global Certificate in an amount
equal to the principal amount of the beneficial interest in such
U.S. Global Certificate to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver to the
transferor or at its direction, one or more U.S. Physical
Certificates of like tenor and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Certificate
to a QIB (excluding Non-U.S. Persons):
(i) If the Initial Certificate to be transferred consists of U.S.
Physical Certificates or an interest in any Temporary Offshore
Global Certificate, the Registrar shall register the transfer if
such transfer is being made by a proposed transferor who has
checked the box provided for on the form of Initial Certificate
stating, or has otherwise advised the Trustee and the Registrar
in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Initial Certificate
stating, or has otherwise advised the Trustee and the Registrar
in writing, that it is purchasing the Initial Certificate for its
own account or an account with respect to which it exercises sole
investment discretion and that it, or the Person on whose behalf
it is acting with respect to any such
24
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account, is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Trust and/or the Company as it has requested pursuant to Rule
144A or has determined not to request such information and that
it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
(ii) Upon receipt by the Registrar of the documents referred to in
clause (i) above and instructions given in accordance with DTC's
and the Registrar's procedures therefor, the Registrar shall
reflect on its books and records the date of such transfer and an
increase in the principal amount of the U.S. Global Certificate
in an amount equal to the principal amount of the U.S. Physical
Certificates or interests in the Temporary Offshore Global
Certificate, as the case may be, being transferred, and the
Trustee shall cancel such Physical Certificates or decrease the
amount of such Temporary Offshore Global Certificate so
transferred.
(c) TRANSFERS OF INTERESTS IN THE PERMANENT OFFSHORE GLOBAL CERTIFICATE
OR OFFSHORE PHYSICAL CERTIFICATES. The Registrar shall register any transfer of
interests in the Permanent Offshore Global Certificate or Offshore Physical
Certificates without requiring any additional certification.
(d) TRANSFERS TO NON-U.S. PERSONS AT ANY TIME. The following provisions
shall apply with respect to any registration of any transfer of an Initial
Certificate to a Non-U.S. Person:
(i) Prior to the Offshore Certificates Exchange Date, the Registrar
shall register any proposed transfer of an Initial Certificate to
a Non-U.S. Person upon receipt of a certificate substantially in
the form set forth as Exhibit C hereto from the proposed
transferor.
(ii) On and after the Offshore Certificates Exchange Date, the
Registrar shall register any proposed transfer to any Non-U.S.
Person if the Initial Certificate to be transferred is a U.S.
Physical Certificate or an interest in the U.S. Global
Certificate, upon receipt of a certificate substantially in the
form of Exhibit C from the proposed transferor. The Registrar
shall promptly send a copy of such certificate to the Company.
(iii) (A) Upon receipt by the Registrar of (x) the documents, if any,
required by paragraph (ii) and (y) instructions in accordance
with DTC's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date of such transfer and a
decrease in the principal amount of such U.S. Global Certificate
in an amount equal to the principal amount of the beneficial
interest in such U.S. Global Certificate to be transferred, and
(B) upon receipt by the Registrar of instructions given in
accordance with DTC's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Offshore Global
Certificate in an amount equal to the principal amount of the
U.S. Physical Certificate or the U.S. Global Certificate, as the
case may be, to be transferred, and the Trustee shall cancel the
Physical Certificate, if any, so transferred or decrease the
amount of such U.S. Global Certificate.
25
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(e) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Applicable Certificates not bearing the Private Placement Legend,
the Registrar shall deliver Applicable Certificates that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Applicable
Certificates bearing the Private Placement Legend, the Registrar shall deliver
only Applicable Certificates that bear the Private Placement Legend unless
either (i) the circumstances contemplated by paragraph (a)(i)(x) or (e)(ii) of
this Section 8.05 exist or (ii) there is delivered to the Registrar an Opinion
of Counsel to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act.
(f) GENERAL. By its acceptance of any Applicable Certificate bearing
the Private Placement Legend, each Holder of such an Applicable Certificate
acknowledges the restrictions on transfer of such Applicable Certificate set
forth in this Agreement and agrees that it will transfer such Applicable
Certificate only as provided in this Agreement. The Registrar shall not register
a transfer of any Applicable Certificate unless such transfer complies with the
restrictions on transfer of such Applicable Certificate set forth in this
Agreement. In connection with any transfer of Applicable Certificates, each
Applicable Certificateholder agrees by its acceptance of the Applicable
Certificates to furnish the Registrar or the Trustee such certifications, legal
opinions or other information as either of them may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the Securities Act;
provided that the Registrar shall not be required to determine the sufficiency
of any such certifications, legal opinions or other information.
Until such time as no Applicable Certificates remain Outstanding, the
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 8.04 or this Section 8.05. The
Trustee, if not the Registrar at such time, shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. BASIC AGREEMENT RATIFIED. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument. All replacements of provisions of, and other modifications of the
Basic Agreement set forth in this Trust Supplement are solely with respect to
the Applicable Trust.
SECTION 9.02. GOVERNING LAW. THIS TRUST SUPPLEMENT AND THE APPLICABLE
CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
Section 9.03. EXECUTION IN COUNTERPARTS. This Trust Supplement may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
26
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Section 9.04. INTENTION OF PARTIES. The parties hereto intend that the
Applicable Trust be classified for U.S. federal income tax purposes as a grantor
trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended, and not as a trust or association taxable as a corporation or
as a partnership. Each Applicable Certificateholder and Investor, by its
acceptance of its Applicable Certificate or a beneficial interest therein,
agrees to treat the Applicable Trust as a grantor trust for all U.S. federal,
state and local income tax purposes. The powers granted and obligations
undertaken pursuant to the Agreement shall be so construed so as to further such
intent.
27
IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust
Supplement to be duly executed by their respective representatives thereto duly
authorized, as of the day and year first written above.
ATLAS AIR, INC.
By:
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Director - Corporate Finance
WILMINGTON TRUST COMPANY,
as Trustee
By:
----------------------------------------------
Name:
Title:
28
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED
No. ______________
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT; (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE EXCEPT (A) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (B) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE AGGREGATE PRINCIPAL
AMOUNT OF SUCH CERTIFICATE, THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER), OR (F) TO ATLAS OR ANY SUBSIDIARY
THEREOF; (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
2(E) ABOVE), IT WILL FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (4) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS CERTIFICATE PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES
ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR IS A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE, SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION
29
A-2
AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THE CERTIFICATES PURSUANT TO CLAUSE 2(E)
ABOVE OR UPON ANY TRANSFER OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE PASS THROUGH TRUST AGREEMENT
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.](a)
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 8.05
AND 8.06 OF THE TRUST SUPPLEMENT OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO
HEREIN.]
[BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT EITHER (A) NO ASSETS OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
SECURITIES ACT OF 1974, AS AMENDED ("ERISA"), OR OF A PLAN SUBJECT TO SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") HAVE BEEN
USED TO PURCHASE THIS CERTIFICATE OR (B) THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND
THE CODE PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR
ADMINISTRATIVE EXEMPTIONS.]
-----------------
(a) Not to be included on the face of the Permanent Offshore Global
Certificate.
30
A-3
[GLOBAL CERTIFICATE](a)
ATLAS AIR 2000-1C PASS THROUGH TRUST
9.702% Atlas Air [Initial] [Exchange] Pass Through Certificate
Issuance Date: _______________
Final Expected Distribution Date: ________
Evidencing A Fractional Undivided Interest In The Atlas Air Pass Through Trust
2000-1C, The Property Of Which Shall Include Certain Equipment Notes Each
Secured By An Aircraft Lease To Or Owned By Atlas Air, Inc.
$__________ Fractional Undivided Interest
representing _____% of the Trust per $1,000 face amount
THIS CERTIFIES THAT ________________, for value received, is the
registered owner of a $____________ (_____________ dollars) Fractional Undivided
Interest in the Atlas Air 2000-1C Pass Through Trust (the "Trust") created
pursuant to a Pass Through Trust Agreement, dated as of January 28, 2000 (the
"BASIC AGREEMENT"), between the Trustee and Atlas Air, Inc., a Delaware
corporation (the "Company"), as supplemented by Trust Supplement No. 2000-1C
thereto, dated as of January 28, 2000 (the "Trust Supplement" and, together with
the Basic Agreement, the "AGREEMENT") between the Trustee and the Company, a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Agreement. This Certificate is one of the
duly authorized Certificates designated as "9.702% Atlas Air [Initial]
[Exchange] Pass Through Certificates Series 2000-1C" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions, and conditions of the Agreement. By virtue of its acceptance hereof,
the holder of this Certificate (the "CERTIFICATEHOLDER") and, together with all
other holders of Certificates issued by the Trust, the "CERTIFICATEHOLDERS")
assents to and agrees to be bound by the provisions of the Agreement and the
Intercreditor Agreement. The property of the Trust includes certain Equipment
Notes and all rights of the Trust to receive payments under the Intercreditor
Agreement and the Liquidity Facility (the "Trust Property"). Each issue of the
Equipment Notes is secured by, among other things, a security interest in an
Aircraft leased to or owned by the Company.
The Certificates represent fractional undivided interests in the Trust
and the Trust Property, and have no rights, benefits or interest in respect of
any other separate trust established pursuant to the terms of the Basic
Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreement, from and to the extent of funds then available to the
Trustee, there will be distributed on each January 2 and July 2 (a "Regular
Distribution Date"), commencing on July 2, 2000, to the Person in whose name
this Certificate is registered at the close of business on the 15th day
preceding the Regular Distribution Date, an amount
-----------------
(a) To be included on the face of each Global Certificate.
31
A-4
in respect of the Scheduled Payments on the Equipment Notes due on such Regular
Distribution Date, the receipt of which has been confirmed by the Trustee, equal
to the product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Scheduled Payments. Subject
to and in accordance with the terms of the Agreement and the Intercreditor
Agreement, in the event that Special Payments on the Equipment Notes are
received by the Trustee, from funds then available to the Trustee, there shall
be distributed on the applicable Special Distribution Date, to the Person in
whose name this Certificate is registered at the close of business on the 15th
day preceding the Special Distribution Date, an amount in respect of such
Special Payments on the Equipment Notes, the receipt of which has been confirmed
by the Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Special
Payments so received. If a Regular Distribution Date or Special Distribution
Date is not a Business Day, distribution shall be made on the immediately
following Business Day with the same force and effect as if made on such Regular
Distribution Date or Special Distribution Date and no interest shall accrue
during the intervening period. The Trustee shall mail notice of each Special
Payment and the Special Distribution Date therefor to the Certificateholder of
this Certificate.
[The Holder of this Certificate is entitled to the benefits of the
Registration Rights Agreement, dated as of January 28, 2000, among the Company,
the Trustee and the Placement Agents named therein (the "Registration Rights
Agreement"). In the event that neither the consummation of the Exchange Offer
nor the declaration by the Commission of a Shelf Registration to be effective (a
"Registration Event") occurs on or prior to the 210th day after the date of the
issuance of the Certificates, the interest rate per annum borne by the Equipment
Notes shall be increased by 0.50%, from and including such 210th day, to but
excluding the date on which a Registration Event occurs. In the event that the
Shelf Registration Statement ceases to be effective at any time during the
period specified by the Registration Rights Agreement for more than 60 days,
whether or not consecutive, during any 12-month period, the interest rate per
annum borne by the Equipment Notes shall be increased by 0.50% from the 61st day
of the applicable 12-month period such Shelf Registration Statement ceases to be
effective until such time as the Shelf Registration Statement again becomes
effective.](a)
Each Certificateholder and Investor, by its acceptance of this
Certificate or a beneficial interest herein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after notice
mailed by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency of the
Trustee specified in such notice.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
----------------
(a) To be included only on each Initial Certificate.
32
A-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [_______ __], 2000 ATLAS AIR
2000-1C PASS THROUGH TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Trustee
Attest: By:
----------------------------------------
Name:
Title:
------------------------------
Authorized Signature
33
A-6
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Trustee
By:
-------------------------------------------
Authorized Officer
34
A-7
[REVERSE OF CERTIFICATE]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Company or the Trustee or any
of their affiliates. The Certificates are limited in right of payment, all as
more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Certificateholder
of this Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any time
by the Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Register upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar, in the Borough of Manhattan, the City of New York, duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Registrar duly executed by the Certificateholder hereof
or such Certificateholder's attorney duly authorized in writing, and thereupon
one or more new Certificates of authorized denominations evidencing the same
aggregate Fractional Undivided Interest in the Trust will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of [$100,000](a) [$1,000](b) Fractional
Undivided Interest and integral multiples of $1,000 in excess thereof [except
that one Certificate may be in a denomination of less than $100,000]*. As
provided in the Agreement and subject to certain limitations therein set forth,
the Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in the
Trust, as requested by the Certificateholder surrendering the same.
------------------
(a) To be included only on each Initial Certificate.
(b) To be included only on each Exchange Certificate.
35
A-8
No service charge will be made for any such registration of transfer or
exchange, but the Trustee shall require payment by the Holder of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
36
A-9
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
----------------------------------
----------------------------------
please print or typewrite name and address including zip code of assignee
----------------------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
----------------------------------
attorney to transfer said Certificate on the books of the Trustee with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT EXCHANGE CERTIFICATES AND
PERMANENT OFFSHORE GLOBAL AND
UNLEGENDED OFFSHORE PHYSICAL CERTIFICATES]
In connection with any transfer of this Certificate occurring prior to
the date that is the earlier of (i) the date of Registration Event or (ii) the
end of the period referred to in Rule 144(k) of the Securities Act, the
undersigned confirms that without utilizing any general solicitation or general
advertising that:
[Check One]
[ ] (a) this Certificate is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
or
[ ] (b) this Certificate is being transferred other than in accordance with
(a) above and documents are being furnished that comply with the
conditions of transfer set forth in this Certificate and the
Agreement.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Certificate in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 8.06 of the Trust
Supplement shall have been satisfied.
Date: [Name of Transferor]
----------------------- -----------------------------
37
A-10
NOTE: The signature must correspond with the name as written
upon the face of the within-mentioned instrument in every
Signature Guarantee: particular, without alteration or any change whatsoever.
---------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Certificate for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
----------------------- ---------------------------------------------
NOTE: To be executed by an executive officer.
38
EXHIBIT B
FORM OF CERTIFICATE FOR UNLEGENDED CERTIFICATES
[DATE]
Wilmington Trust Company
One ▇▇▇▇▇▇ Square
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Re: Atlas Air 2000-1C Pass Through Trust, Class C Pass Through
Trust Certificates
(the "Certificates")
Dear Sirs:
This letter relates to U.S. $__________ Fractional Undivided Interest
of Certificates represented by a Certificate (the "Legended Certificate") which
bears a legend outlining restrictions upon transfer of such Legended
Certificate. Pursuant to Section 3.01 of the Pass Through Trust Agreement dated
as of January 28, 2000 (the "Basic Agreement") between the Trustee and Atlas
Air, Inc., a Delaware corporation (the "Company"), as supplemented by Trust
Supplement No. 2000-1C thereto (the "Trust Supplement", and together with the
Basic Agreement, the "Agreement"), we hereby certify that we are (or we will
hold such securities on behalf of) a person outside the United States to whom
the Certificates could be transferred in accordance with Rule 904 of Regulation
S promulgated under the U.S. Securities Act of 1933, as amended. Accordingly,
you are hereby requested to exchange the legended certificate for an unlegended
certificate representing an identical principal amount of Certificates, all in
the manner provided for in the Agreement.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Certificateholder]
By:
------------------------------------
Authorized Signature
39
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
[DATE]
Wilmington Trust Company
One ▇▇▇▇▇▇ Square
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Re: Atlas Air 2000-1C Pass Through Trust (the "Trust"),
9.702% Atlas Air Pass Through Trust Certificates
Series 2000-1C (the "Certificates")
Sirs:
In connection with our proposed sale of $_______ Fractional Undivided
Interest of the Certificates, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in the United
States;
(2) either (a) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting
on our behalf knows that the transaction has been pre-arranged with a buyer
in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
You and Atlas Air, Inc. are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-------------------------------
Authorized Signature
40
EXHIBIT D
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
[DATE]
Wilmington Trust Company
One ▇▇▇▇▇▇ Square
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Re: Atlas Air 2000-1C Pass Through Trust (the "Trust"),
9.702% Atlas Air Pass Through Trust Certificates
Series 2000-1C (the "Certificates")
Dear Sirs:
In connection with our proposed purchase of $_______________ aggregate
principal amount of the Certificates, we confirm that:
(1) We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Pass
Through Trust Agreement dated as of January 28, 2000 (the "Basic
Agreement") between the Trustee and Atlas Air, Inc., a Delaware corporation
(the "Company"), as supplemented by Trust Supplement No. 2000-1C thereto
(the "Trust Supplement", and together with the Basic Agreement, the
"Agreement") relating to the Certificates and the undersigned agrees to be
bound by the Agreement, and not to resell, pledge or otherwise transfer the
Certificates except in compliance with, such restrictions and conditions
contained in the Agreement and the Securities Act of 1933, as amended (the
"Securities Act").
(2) We understand that the Certificates have not been registered under the
Securities Act, and that the Certificates may not be offered or sold except
as permitted in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter stated, that
if we should sell any Certificate, we will do so only (A) in accordance
with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (B) to an institutional "accredited investor"
(as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you and to the Company,
a signed letter substantially in the form of this letter, (C) outside the
United States in accordance with Rule 904 of Regulation S under the
Securities Act, (D) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act, (E) pursuant to an effective
registration statement under the Securities Act, or (F) to the Company or
any subsidiary thereof, and we further agree to provide to any person
purchasing any of the Certificates from us a notice advising such purchaser
that resales of the Notes are restricted as stated herein. We further
understand that the Certificates purchased by us will bear a legend to the
foregoing effect.
(3) We understand that, on any proposed resale of any Certificates, we will
be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company
41
may reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Certificates
purchased by us will bear a legend to the foregoing effect.
(4) We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Certificates and we and any accounts for which we are acting are each able
to bear the economic risk of our or its investment.
(5) We are acquiring the Certificates purchased by us for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
------------------------------------------
Authorized Signature