[EXECUTION VERSION]
ATLAS AIR, INC., ISSUER
Pass Through Certificates
Series 1999-1
UNDERWRITING AGREEMENT
Dated: April 5, 1999
ATLAS AIR, INC., ISSUER
Pass Through Certificates, Series 1999-1
UNDERWRITING AGREEMENT
April 5, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
BT Alex. Brown Incorporated
ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Atlas Air, Inc., a Delaware corporation (the "Company"), proposes that
Wilmington Trust Company, as pass through trustee (the "Trustee") under each of
the Trusts (as defined below), issue and sell to the underwriters named in
Schedule II hereto its pass through certificates in the aggregate principal
amounts and with the interest rates and final distribution dates set forth on
Schedule I hereto (the "Offered Certificates") on the terms and conditions
stated herein. As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firms named as Underwriters in Schedule II, and
the term "you" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇").
The Offered Certificates will be issued pursuant to a Pass Through Trust
Agreement dated as of April 1, 1999 (the "Basic Agreement") as supplemented by
four Pass Through Trust Supplements (individually, a "Series Supplement"), each
to be dated as of the Closing Date (as defined below) between the Company and
the Trustee (the Basic Agreement as supplemented by each Series Supplement being
referred to herein individually as a "Pass Through Trust Agreement"). The Series
Supplements are related to the creation and administration of Atlas Air Pass
Through Trust, Series 1999-1A-1 (the "Class A-1 Trust"), Atlas Air Pass Through
Trust, Series 1999-1A-2 (the "Class A-2 Trust"), Atlas Air Pass Through Trust,
Series 1999-1B (the "Class B Trust") and Atlas Air Pass Through Trust, Series
1999-1C (the "Class C Trust"; and together with the Class A-1 Trust, the Class
A-2 Trust and the Class B Trust, the "Trusts").
The cash proceeds of the offering of Offered Certificates by each Trust
will be paid to First Security Bank, National Association, as escrow agent (the
"Escrow Agent"), under an Escrow and Paying Agent Agreement among the Escrow
Agent, the Underwriters, the Trustee of such Trust and Wilmington Trust Company,
as paying agent (the "Paying Agent"), for the benefit of the holders of Offered
Certificates issued by such Trust (each, an "Escrow Agreement"). The Escrow
Agent will deposit such cash proceeds (each, a "Deposit") with Credit Suisse
First Boston, New York Branch (the "Depositary"), in accordance with a Deposit
Agreement relating to such Trust (each, a "Deposit Agreement"), and will
withdraw Deposits upon request to allow the Trustee to purchase Equipment Notes
(as defined in the Note Purchase Agreement referred to herein) referred to
herein from time to time pursuant to a Note Purchase Agreement to be dated as of
the Closing Date (the "Note Purchase Agreement") among the Company, Wilmington
Trust Company, as Trustee of each of the Trusts, as Subordination Agent (as
hereinafter defined) and as Paying Agent, and the Escrow Agent. Each Escrow
Agent will issue receipts to be attached to each related Offered Certificate
("Escrow Receipts") representing each holder's fractional undivided interest in
amounts deposited with such Escrow Agent and will pay to such holders through
the related Paying Agent interest accrued on the Deposits and received by such
Paying Agent pursuant to the related Deposit Agreement at a rate per annum equal
to the interest rate applicable to the corresponding Offered Certificates.
Certain amounts of interest payable on the Offered Certificates will be
entitled to the benefits of separate liquidity facilities. ABN AMRO Bank N.V.,
acting through its Chicago branch, in the case of the Class A-1 Trust and the
Class A-2 Trust (in such capacity, the "Class A-1 and A-2 Liquidity Provider")
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services, Inc., in the case of the Class B Trust and
the Class C Trust (in such capacity, the "Class B and C Liquidity Provider" and,
together with the Class A-1 and A-2 Liquidity Provider, the "Liquidity
Providers") will enter into separate revolving credit agreements with respect to
each Trust (each, a "Liquidity Facility") to be dated as of the Closing Date for
the benefit of the holders of the Offered Certificates. The Liquidity Providers
and the holders of the Offered Certificates will be entitled to the benefits of
an Intercreditor Agreement to be dated as of the Closing Date (the
"Intercreditor Agreement") among the Trustees, Wilmington Trust Company, as
subordination agent and trustee thereunder (the "Subordination Agent"), and the
Liquidity Providers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a shelf registration statement on Form S-3 (File No. 333-71833)
relating to certain classes of securities (such registration statement,
including the exhibits thereto and the documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
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"Exchange Act") that are incorporated by reference therein, as amended at the
date hereof, being herein referred to as the "Registration Statement") and the
offering thereof from time to time in accordance with Rule 415 of the Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"). A prospectus supplement
reflecting the terms of the Offered Certificates, the terms of the offering
thereof and the other matters set forth therein, as further specified in Section
4(c) hereof, will be prepared and filed together with the base prospectus
referred to below pursuant to Rule 424 under the Securities Act (such prospectus
supplement, in the form first filed on or after the date hereof pursuant to Rule
424, being herein referred to as the "Prospectus Supplement" and any prospectus
supplement relating to the Offered Certificates filed prior to the filing of the
Prospectus Supplement being herein referred to as a "Preliminary Prospectus
Supplement"). The base prospectus, dated February 16, 1999, included in the
Registration Statement relating to offerings of pass through certificates
generally, as supplemented by the Prospectus Supplement, and including the
documents incorporated by reference therein, is herein called the "Prospectus",
except that, if such base prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement is first filed pursuant to Rule 424,
the term "Prospectus" shall refer to such base prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either case
including the documents incorporated by reference therein. Any reference herein
to the terms "amendment" or "supplement" with respect to the Registration
Statement, the Prospectus, any Preliminary Prospectus Supplement or any
preliminary prospectus shall be deemed to refer to and include any documents
filed with the Commission under the Exchange Act after the date hereof, the date
the Prospectus is filed with the Commission, or the date of such Preliminary
Prospectus Supplement or preliminary prospectus, as the case may be, and
incorporated therein by reference pursuant to Item 12 of Form S-3 under the
Securities Act.
Capitalized terms not otherwise defined in this Agreement shall have the
meanings specified therefor in the Pass Through Trust Agreements or in the Note
Purchase Agreement or the Intercreditor Agreement referred to in the Pass
Through Trust Agreements; provided that, as used in this Agreement, the term
"Operative Agreements" shall mean the Deposit Agreements, the Escrow Agreements,
the Intercreditor Agreement, the Liquidity Facilities, the Pass Through Trust
Agreements and the Financing Agreements (as defined in the Intercreditor
Agreement).
1. Representations and Warranties. (a) The Company represents and warrants
to, and agrees with each Underwriter that:
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act; the Registration Statement has become effective; on the
original effective date of the Registration Statement, on the effective
date of the most recent post-effective amendment thereto, if any, and on
the date of the filing by the Company of its annual report on Form 10-K for
the fiscal year ended December 31, 1998, the Registration Statement, and
any amendments and supplements thereto, complied in all material respects
with the requirements of the Securities Act and the Registration Statement
did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; on the date hereof and on the Closing
Date (as defined below), neither
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the Prospectus nor any amendments thereof and supplements thereto, includes
or will include an untrue statement of a material fact or omits or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions based upon information relating to
any Underwriter furnished in writing to the Company by or on behalf of any
Underwriter through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated expressly for use in
the Prospectus or to statements or omissions in that part of the
Registration Statement which shall constitute the Statement of Eligibility
of the Trustee under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), on Form T-1.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Securities Act, at the time they
were or, at any time prior to the completion of the distribution of the
Offered Certificates by the Underwriters, they are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and when read together with the other
information in the Prospectus, did not as of the date hereof contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iii) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and to perform
its obligations under this Agreement and the Operative Documents to which
it is, or is to be, a party; the Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole (an "Atlas Material Adverse
Effect").
(iv) The Company's only subsidiaries are Atlas One, Inc., Atlas
Freighter Leasing, Inc., Atlas Freighter Leasing II, Inc., Atlas Air
Services Limited, LHC Properties, Inc., Atlas Flightlease, Inc., Genessee
Insurance Company, Ltd., Atlas Air Worldwide Holdings, Inc. and Atlas Air
Services and Products, Inc. (collectively, the "Subsidiaries"). Each
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation with
corporate power and authority under such laws to own, lease and operate its
properties and conduct its business; and each Subsidiary is duly qualified
to transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good
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standing would not have an Atlas Material Adverse Effect. All of the
outstanding shares of capital stock of each Subsidiary have been duly
authorized and validly issued and are fully paid and non-assessable and are
owned by the Company free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind.
(v) This Agreement has been duly authorized, executed and delivered by
the Company.
(vi) The Operative Agreements to which the Company is, or is to be, a
party, have each been duly authorized by the Company, are or will be
substantially in the form heretofore supplied to you and, assuming that
such Operative Agreements have been duly authorized, executed and delivered
by, and constitute the legal, valid and binding obligations of, each other
party thereto, when duly executed and delivered by the Company will
constitute valid and binding obligations of the Company, except (x) as
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally and (y) as enforcement thereof may
be limited by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law). The Offered
Certificates, the Equipment Notes, the Indentures, the Leases and other
Operative Agreements to which the Company is, or is to be, a party will
conform in all material respects to the descriptions thereof in the
Prospectus. The Basic Agreement as executed is substantially in the form
filed as an Exhibit to the Registration Statement and has been duly
qualified under the Trust Indenture Act.
(vii) The Company is a "citizen of the United States" (as defined in
Section 40102(a)(15) of Title 49 of the United States Code, as amended) and
is an air carrier operating under a certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49, United States Code, for
aircraft capable of carrying 10 or more individuals or 6,000 pounds or more
of cargo. There is in force with respect to the Company an air carrier
operating certificate issued pursuant to Part 121 of the regulations under
the sections of Title 49, United States Code, relating to aviation (the
"Federal Aviation Act"). All of the outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully paid
and non-assessable.
(viii) Assuming the due authorization of the Offered Certificates by
the Trustee, when executed, authenticated, issued and delivered in the
manner provided for in the related Pass Through Trust Agreement and sold
and paid for as provided in this Agreement, each of the Offered
Certificates will be valid and binding obligations of the Trustee entitled
to the benefits of the related Pass Through Trust Agreement, enforceable
against the Trustee in accordance with its terms, except as limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally
and general equitable
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principles (whether considered in a proceeding in equity or at law). When
executed, authenticated, issued and delivered in the manner provided for in
the Escrow Agreements, the Escrow Receipts will be legally and validly
issued and will be entitled to the benefits of the related Escrow
Agreements.
(ix) The execution and delivery by the Company of this Agreement and
the Operative Documents to which the Company is, or is to be, a party, the
consummation by the Company of the transactions contemplated in this
Agreement and such Operative Documents, and compliance by the Company with
the terms of this Agreement and such Operative Documents will not
contravene (i) the certificate of incorporation or by-laws of the Company,
(ii) any provision of applicable law or any agreement or other instrument
binding upon the Company or any of the Subsidiaries, except for such
contraventions as would not, singly or in the aggregate, have an Atlas
Material Adverse Effect, or (iii) any judgment, order or decree of any
governmental body, agency or court having jurisdiction
over the Company or any Subsidiary, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the valid authorization, execution, delivery and performance
by the Company of this Agreement and the Operative Documents to which the
Company is, or is to be, a party, or the consummation by the Company of the
transactions contemplated by this Agreement and such Operative Documents,
except (x) such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Offered
Certificates, (y) filings or recordings with the Federal Aviation
Administration (the "FAA") and under the Uniform Commercial Code as in
effect in Colorado and Utah, which filings or recordings referred to in
this clause (y), with respect to any particular set of Financing
Agreements, shall have been made, or duly presented for filing or
recordation, on or prior to the applicable Funding Date for the Aircraft
related to such Financing Agreements and (z) such as may be required under
the rules of the National Association of Securities Dealers.
(x) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and the Subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(xi) Except as accurately described in all material respects in the
Prospectus and except as would not have an Atlas Material Adverse Effect
and would not materially and adversely affect the ability of the Company to
perform its obligations under this Agreement or any Operative Documents, to
which it is, or is to be, a party, or to consummate the transactions
contemplated by the Prospectus there are no legal or governmental
proceedings pending or, to the best knowledge of the Company, threatened to
which the Company or any of the Subsidiaries is or may be a party or to
which any of the properties of the Company or any of the Subsidiaries is or
may be subject.
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(xii) Except as described in the Prospectus, the Company is not in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is a
party or by which it may be bound or to which any of its properties may be
subject, except for such defaults that would not have an Atlas Material
Adverse Effect.
(xiii) The Company and the Subsidiaries each has good and marketable
title to all properties and assets described in the Prospectus as owned by
it, free and clear of all liens, charges, encumbrances or restrictions,
except (A) as described in the Prospectus or (B) as would not have an Atlas
Material Adverse Effect.
(xiv) Except as described in the Prospectus, no labor problem exists
with the Company's employees or with employees of any Subsidiary or, to the
best knowledge of the Company, is imminent that could reasonably be
expected to have an Atlas Material Adverse Effect, and the Company is not
aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's principal
contractors or customers that could reasonably be expected to have an Atlas
Material Adverse Effect.
(xv) The Company and the Subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have an Atlas Material Adverse Effect.
(xvi) Neither the Company nor any of the Trusts is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"); and after giving effect to the
offering and sale of the Offered Certificates and the application of the
proceeds thereof as described in the Prospectus, none of the Trusts will be
an "investment company" as defined in the Investment Company Act, nor will
the escrow arrangements contemplated by the Escrow Agreements result in the
creation of, an "investment company" as defined in the Investment Company
Act.
(xvii) The accountants that examined and issued an auditors report
with respect to the consolidated financial statements of the Company and
its consolidated
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subsidiaries included or incorporated by reference in the Prospectus are
independent public accountants within the meaning of the Securities Act.
(xviii) The consolidated financial statements included in the
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows or changes in financial
position of the Company and its consolidated subsidiaries for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The financial statement schedules, if any,
included in the Prospectus present fairly the information required to be
stated therein.
(xix) The Company and the Subsidiaries possess adequate certificates,
authorities and permits issued by appropriate governmental agencies or
bodies necessary to conduct, in all material respects, the business now
operated by them and have not received any notice of proceedings relating
to the revocation or modification of any such certificate, authority or
permit that would, individually or in the aggregate, have an Atlas Material
Adverse Effect.
(xx) No Appraiser is an affiliate of the Company or has a substantial
interest, direct or indirect, in the Company. None of the officers and
directors of any of such Appraisers is connected with the Company or any of
its affiliates as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
(xxi) There are no contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not described and filed
as required.
(xxii) The Company's disclosure in the Prospectus regarding Year 2000
compliance satisfies in all material respects the requirements of the
Securities Act.
(b) The parties agree that any certificate signed by a duly authorized
officer of the Company and delivered to an Underwriter, or to counsel for the
Underwriters, on the Closing Date and in connection with this Agreement or the
offering of the Offered Certificates, shall be deemed a representation and
warranty by (and only by) the Company to the Underwriters as to the matters
covered thereby.
The representations and warranties contained in this Agreement shall be
true and correct as of the date of this Agreement and as of the Closing Date.
2. Purchase, Sale and Delivery of Offered Certificates. (a) On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and
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the conditions herein set forth, the Company agrees to cause the Trustees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Trustees, at a purchase price of 100% of the
principal amount thereof, the aggregate principal amount of Offered Certificates
of each Pass Through Certificate Designation set forth opposite the name of such
Underwriter in Schedule II. Concurrently with the issuance of the Offered
Certificates, the Escrow Agents shall issue and deliver to the Trustees the
Escrow Receipts in accordance with the terms of the Escrow Agreements, which
Escrow Receipts shall be attached to the related Offered Certificates.
(b) The Company is advised by you that the Underwriters propose to make a
public offering of the Offered Certificates purchased by the Underwriters
hereunder on the terms to be set forth in the Prospectus as soon as practicable
after this Agreement has been entered into as in your judgment is advisable.
(c) As compensation to the Underwriters for their respective commitments
and obligations hereunder in respect of the Offered Certificates, including
their respective undertakings to distribute the Offered Certificates, the
Company will pay to each Underwriter an amount equal to that percentage of the
aggregate principal amount of Offered Certificates purchased by such Underwriter
(as set forth in Schedule II). Such payment will be made on the Closing Date
simultaneously with the issuance and sale of the Offered Certificates (with
attached Escrow Receipts) to the Underwriters. Payment of such compensation
shall be made by Federal funds check or other immediately available funds.
(d) Delivery of and payment for the Offered Certificates (with attached
Escrow Receipts) shall be made at the offices of Shearman & Sterling at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ at 10:00 A.M. on April 13, 1999
or such other date, time and place as may be agreed upon by the Company and you
(such date and time of delivery and payment for the Offered Certificates (with
attached Escrow Receipts) being herein called the "Closing Date"). Delivery of
the Offered Certificates (with attached Escrow Receipts) issued by each Trust
shall be made to your account at The Depository Trust Company ("DTC") for the
respective accounts of the several Underwriters against payment by the
Underwriters of the purchase price thereof. Payment for the Offered Certificates
issued by each Trust and the related Escrow Receipts attached thereto shall be
made by the Underwriters by wire transfer of immediately available funds to the
accounts and in the manner specified in the related Escrow Agreements. The
Offered Certificates (with attached Escrow Receipts) issued by each Trust shall
be in the form of one or more fully registered global certificates, and shall be
deposited with the related Trustee as custodian for DTC and registered in the
name of Cede & Co.
(e) The Company agrees to have global certificates representing the Offered
Certificates (with attached Escrow Receipts) available for inspection and
checking by you in New York, New York not later than 1:00 P.M. on the business
day prior to the Closing Date.
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(f) It is understood that each Underwriter has authorized you for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Offered Certificates (with attached Escrow Receipts) that it has
agreed to purchase. You, individually and not as a representative, may (but
shall not be obligated to) make payment of the purchase price for the Offered
Certificates to be purchased by any Underwriter whose check or checks shall not
have been received by the Closing Date.
3. Conditions to Closing. The obligations of the Underwriters under this
Agreement to purchase the Offered Certificates will be subject to the following
conditions:
(a) On the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act and no
proceedings therefor shall have been instituted or threatened by the Commission.
(b) Subsequent to the date of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in the
rating accorded any of the Company's securities, including the Offered
Certificates, by any "nationally recognized statistical rating organization", as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
provided that, in the case of Standard & Poor's Rating Services only, so long as
the Offered Certificates shall have received the ratings indicated in paragraph
(o) of this Section 3, this condition precedent to closing shall not be breached
if, prior to the Closing Date, Standard & Poor's Rating Services shall give
notice of any review for possible change of the ratings for the Offered
Certificates and
such notice shall be communicated in language which is substantially identical
to that used in recent press releases regarding securities of the Company
similar to the Offered Certificates; and
(c) On the Closing Date, (i) (A) the Registration Statement, as it may then
be amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (B) the Prospectus, as it may
then be amended or supplemented, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made, (C) the Company shall have complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date, and (D) the other representations and
warranties of the Company set forth in this Agreement and each of the Operative
Documents shall be accurate in all material respects as though expressly made at
and as of the Closing Date (except to the extent that such representations and
warranties refer to an earlier or later date, in which case they shall be
accurate in all material respects as of such dates) and (ii) subsequent to the
execution and delivery of this Agreement, there shall not have occurred any
change, or any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
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Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent to the
date of this agreement) that, in your judgment, is material and adverse and that
makes it, in your judgment, impracticable to market the Offered Certificates on
the terms and in the manner contemplated in the Prospectus. At the Closing Date,
you shall have received a certificate of either the Chief Financial Officer or
the Executive Vice President of the Company, dated as of the Closing Date, to
the effect set forth in Sections 3(a) and 3(b) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(d) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, as counsel for the Company, dated the Closing Date, to the
effect set forth in Exhibit B hereto.
(e) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇, in-house legal counsel of the Company, dated the Closing Date, to the
effect set forth in Exhibit C hereto.
(f) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for Wilmington Trust Company, individually
and as Trustee, Subordination Agent and Paying Agent, dated the Closing Date, to
the effect set forth in Exhibit D hereto.
(g) On the Closing Date, you shall have received an opinion of ▇▇▇, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, counsel for the Escrow Agent, dated the Closing Date, to the effect
set forth in Exhibit E hereto.
(h) On the Closing Date, you shall have received (i) an opinion of ▇▇▇▇▇▇,
Price, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Class A-1 and A-2 Liquidity
Provider, dated the Closing Date, to the effect set forth in Exhibit F hereto;
and (ii) an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Class B and C
Liquidity Provider, dated the Closing Date, to the effect set forth in Exhibit
F-2 hereto.
(i) On the Closing Date, you shall have received (i) an opinion of ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Depositary, dated the Closing Date, to the effect
set forth in Exhibit G-1 hereto and (ii) an opinion of in-house legal counsel to
the Depositary, dated as of the Closing Date, to the effect set forth in Exhibit
G-2 hereto.
11
(j) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing Date, in form and
substance satisfactory to you.
(k) You shall have received on each of the date hereof and the Closing Date
a letter, dated the date hereof or the Closing Date, as the case may be, in form
and substance satisfactory to you, from the Company's independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Prospectus; provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
(l) The Company shall have furnished to you and to counsel for the
Underwriters, in form and substance satisfactory to you, such other documents,
certificates and opinions as such counsel may reasonably request in order to
pass upon the matters referred to in Section 3(c) and in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements, the performance of any covenant by the Company theretofore to be
performed, or the compliance with any of the conditions herein contained.
(m) Each of the Appraisers shall have furnished to the Underwriters a
letter from such Appraiser, addressed to the Company and dated the Closing Date,
confirming that such Appraiser and each of its directors and officers (i) is not
an affiliate of the Company or any of its affiliates, (ii) does not have any
substantial interest, direct or indirect, in the Company or any of its
affiliates and (iii) is not connected with the Company or any of its affiliates
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
(n) At the Closing Date, each of the Operative Agreements (other than the
Indentures, Leases and Participation Agreements) shall have been duly executed
and delivered by each of the parties thereto; the representations and warranties
of the Company contained in each
of such executed Operative Agreements shall be true and correct as of the
Closing Date (except to the extent that they relate solely to an earlier date,
in which case they shall be true and correct as of such earlier date) and the
Underwriters shall have received a certificate of the President or a Vice
President of the Company, dated as of the Closing Date, to such effect.
(o) On the Closing Date, the Offered Certificates shall be rated "A3" in
the case of the Offered Certificates of the Class A-1 Trust, "A3" in the case of
the Offered Certificates of the Class A-2 Trust, "Baa3" in the case of the
Offered Certificates of the Class B Trust, and "Ba3" in the case of the Offered
Certificates of the Class C Trust by ▇▇▇▇▇'▇ Investors Service, Inc.; "AA-" in
the case of the Offered Certificates of the Class A-1 Trust, "AA-" in the case
of the Offered Certificates of the Class A-2 Trust, "A-" in the case of the
Offered Certificates of the Class B Trust, and "BBB-" in the case of the Offered
Certificates of the Class C Trust by Standard & Poor's Ratings Services; "AA-"
in the case of the Offered
12
Certificates of the Class A-1 Trust, "AA-" in the case of the Offered
Certificates of the Class A-2 Trust, "A-" in the case of the Offered
Certificates of the Class B Trust, and "BBB-" in the case of the Offered
Certificates of the Class C Trust by Fitch IBCA, Inc.; and "AA-" in the case of
the Offered Certificates of the Class A-1 Trust, "AA-" in the case of the
Offered Certificates of the Class A-2 Trust, "A-" in the case of the Offered
Certificates of the Class B Trust, and "BBB-" in the case of the Offered
Certificates of the Class C Trust by ▇▇▇▇ & ▇▇▇▇▇▇ Credit Rating Company;
If any of the conditions specified in this Section 3 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this Agreement
may be terminated by you on notice to the Company at any time prior to the
Closing Date and such termination shall be without liability of any party to any
other party, except as provided in paragraph (i) of Section 4. Notwithstanding
any such termination, the provisions of Section 5 shall remain in effect.
4. Covenants of the Company. In further consideration of the agreements of
the Underwriters contained in this Agreement, the Company covenants as follows:
(a) To furnish you, without charge, such number of copies of the
Prospectus in New York City as you may reasonably request, on or prior to
the second business day next succeeding the date of this Agreement, and
thereafter from time to time as requested during the period mentioned in
paragraph (e) below, such number of copies of the Prospectus (as
supplemented or amended) as you may reasonably request.
(b) To furnish to you as many conformed copies of the Registration
Statement (as originally filed) and of all amendments thereto, whether
filed before or after such Registration Statement became effective, as many
copies of all exhibits and documents filed therewith or incorporated by
reference therein (through the end of the period mentioned in paragraph (e)
below) and one signed and as many conformed copies of all consents and
certificates of experts as you may reasonably request and, if requested by
you, to furnish to you, for each of the Underwriters, one signed copy of
the Registration Statement (as originally filed) and of each amendment
thereto (including documents incorporated by reference into the Prospectus
but without exhibits).
(c) Promptly following the execution of this Agreement, to prepare a
Prospectus Supplement that complies with the Securities Act and that sets
forth the principal amount of the Offered Certificates and their terms and
conditions (to the extent not otherwise specified in the Preliminary
Prospectus Supplement or the Base Prospectus), the name of each Underwriter
participating in the offering and the principal amount of the Offered
Certificates that each severally has agreed to purchase, the name of each
Underwriter, if any, acting as a representative of the Underwriters in
connection with the offering, the price at which the Offered Certificates
are to be purchased by the Underwriters from the Company, any initial
public offering price, any selling
13
concession and reallowance and any delayed delivery arrangements, and such
other information as you, the Company deems appropriate in connection with
the offering of the Offered Certificates. The Company will timely transmit
copies of the Prospectus Supplement to the Commission for filing pursuant
to Rule 424 under the Securities Act.
(d) Before amending the Registration Statement or supplementing the
Prospectus in respect of Offered Certificates during the period mentioned
in paragraph (e) below, to furnish to you a copy of each such proposed
amendment or supplement and not to use any such proposed amendment or
supplement to which you reasonably object; provided that the requirements
of this paragraph (d) shall not apply to any amendment of the Registration
Statement concerning the provisions of the Registration Statement relating
to securities of a type other than the Offered Certificates.
(e) If, during such period after the first date of the public offering
of the Offered Certificates and prior to the date on which all of the
Offered Certificates shall have been sold by the Underwriters any event
shall occur or condition exist as a result of which it is necessary in your
judgement to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file with
the Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company) to
which the Offered Certificates may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law; provided that
with respect to any amendment or supplement which you or your counsel
shall, on any date after the end of the period concluding nine calendar
months after the date hereof, require to be made or produced by the
Company, all such costs and expenses incurred as a result of such amendment
or supplement shall be for the account of the Underwriters.
(f) During the period mentioned in paragraph (e) above, to notify you
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for filing of any
supplement to the Prospectus or any document that would as a result thereof
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement,
the Prospectus or the Prospectus Supplement, (iv) of any request by the
Commission for any amendment to the Registration Statement or any
supplement to the Prospectus or for additional information relating thereto
or to any document incorporated by reference in the Prospectus and (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, of the
14
suspension of the qualification of the Offered Certificates for offering or
sale in any jurisdiction, or of the institution or threatening of any
proceeding for any of such purposes; and to use every reasonable effort to
prevent the issuance of any such stop order or of any order suspending such
qualification and, if any such order is issued, to obtain the lifting
thereof at the earliest possible moment.
(g) To use its reasonable efforts, in cooperation with the
Underwriters, to qualify the Offered Certificates for offer and sale under
the securities laws of such states and other jurisdictions as you may
reasonably request to complete the initial distribution of the Offered
Certificates; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The
Company will also supply you with such information as is necessary for the
determination of legality of the Offered Certificates for investment under
the laws of such jurisdictions as you may reasonably request.
(h) To make generally available to the Company's security holders as
soon as practicable, but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the Securities Act), covering
(i) a period of 12 months beginning after the effective date of the
Registration Statement and any post-effective amendment thereof but not
later than the first day of the Company's fiscal quarter next following
such effective date and (ii) a period of 12 months beginning after the date
of this Agreement but not later than the first day of the Company's fiscal
quarter next following the date of this Agreement.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
issuance and sale of the Offered Certificates and all other fees or
expenses in connection with the preparation of the Prospectus and all
amendments and supplements thereto, including all printing costs associated
therewith, and the delivering of copies thereof to the Underwriters, in the
quantities herein above specified, (ii) all costs and expenses related to
the transfer and delivery of the Offered
Certificates to the Underwriters, including any transfer or other taxes
payable thereon, (iii) the costs of printing or producing any Blue Sky or
legal investment memorandum in connection with the offer and sale of the
Offered Certificates under state securities laws as provided in Section
4(g) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) any fees charged by ratings agencies for the rating of the
Offered Certificates, (v) the reasonable fees and disbursements of the
Indenture Trustee, the Subordination Agent, the Trustees and their
15
counsel, (vi) the cost of the preparation, issuance and delivery of the
Offered Certificates, (vii) the reasonable fees and disbursements of
Shearman & ▇▇▇▇▇▇▇▇ as counsel for the Underwriters (other than those
provided for in Clause (iii) of this Section 4(i)) and (viii) all other
costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this Section
4(i), Section 5 and the last paragraph of Section 8, the Underwriters will
pay all of their costs and expenses, including fees and disbursements of
their counsel, transfer taxes payable on resale of any of the Offered
Certificates by them and any advertising expenses connected with any offers
they may make.
(j) For a period of three years after the Closing Date, to make
available to the Underwriters, copies of all annual reports, quarterly
reports and current reports filed by the Company with the Securities and
Exchange Commission (the "Commission") on Forms 10-K, 10-Q and 8-K, or such
other similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by the Company to
the holders of Offered Certificates or to its security holders generally;
provided that at such time the Company has securities registered under
Section 12(b) or 12(g) of the Exchange Act.
(k) In connection with the offering, until you shall have notified the
Company of the completion of the resale of the Offered Certificates,
neither the Company nor any of its Affiliates has bid for or purchased or
will bid for or purchase, either alone or with one or more other persons,
for any account in which it or any of its affiliates has a beneficial
interest any Offered Certificates; and neither it nor any of its affiliates
will make bids or purchases for the purpose of creating actual, or
apparent, active trading in, or of raising the price of, the Offered
Certificates.
(l) Between the date of this Agreement and the Closing Date, not to
offer, sell or enter into any agreement to sell, directly or indirectly,
any equipment notes, pass through certificates, equipment trust
certificates or equipment purchase certificates secured by aircraft owned
or leased by the Company (or rights relating thereto) other than the
Offered Certificates or Equipment Notes relating thereto, without your
prior written consent.
(m) During the period when a prospectus relating to the Offered
Certificates is required to be delivered under Section 5(c) of the
Securities Act, to file promptly all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(n) To comply to the best of its abilities with the Securities Act,
the Exchange Act and the Trust Indenture Act so as to permit the completion
of the distribution of the Offered Certificates as contemplated in this
Agreement and in the Prospectus.
16
5. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, or is under common control with, or is
controlled by, such Underwriter, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by such Underwriter or any such controlling or
affiliated person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact necessary
to make the statements therein in light of the circumstances under which they
were made not misleading, except insofar as such losses, claims, damages or
liabilities incurred by any Underwriter are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to such Underwriter (and, in the case of such losses, claims, damages
or liabilities incurred by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to the Class B and C Liquidity Provider or to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ & Co.)
furnished to the Company in writing by such Underwriters through you expressly
for use therein; provided, however, that the foregoing indemnity agreement with
respect to the Preliminary Prospectus Supplement shall not inure to the benefit
of any Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Offered Certificates, or any person controlling
such Underwriter, if a copy of the Prospectus Supplement (as then amended or
supplemented if the Company shall have furnished any amendments thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required by
law so to have been delivered, at or prior to the written confirmation of the
sale of the Offered Certificates to such persons, and the Prospectus Supplement
(as so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 4(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of its directors, its officers and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to the Underwriters, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, any Preliminary Prospectus Supplement, the Prospectus, or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to any of paragraph (a) or (b) above, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
17
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated in the case of
parties indemnified pursuant to paragraph (a) above and by the Company in the
case of parties indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of such Offered Certificates or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the Underwriters
on the other hand in connection with the statements or omissions that resulted
in such losses, claims,
18
damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of such Offered
Certificates shall be deemed to be in the same respective proportions as (in the
case of the Company) the net proceeds from the offering of such Offered
Certificates (before deducting expenses) received by the Trusts and (in the case
of the Underwriters) the total commissions received by the Underwriters in
respect of the Offered Certificates, in each case as set forth in the table on
the cover of the Prospectus Supplement, bear to the aggregate offering price of
such Offered Certificates. The relative fault of the Company, on the one hand,
and the Underwriters, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 5 are several in proportion to the
respective principal amount of Offered Certificates they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 5, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Certificates
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that the Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The indemnity and contribution provisions contained in this
Section 5 and the representations and warranties of the Company contained in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Underwriters or any person controlling any Underwriter, by or on
behalf of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Certificates.
The remedies provided for in this Section 5 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
6. Termination. (a) This Agreement shall be subject to termination by
notice given by you to the Company, if (i) after the execution and delivery of
this Agreement
19
and prior to the Closing Date (A) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (B) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (C) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (D)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (ii) in the case of any of the events specified in
clauses (i)(A) through (D), such event singly or together with any other such
event makes it, in your judgment, impracticable to market the Offered
Certificates on the terms and in the manner contemplated in the Prospectus.
(b) If this Agreement is terminated pursuant to this Section 6, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4(i). Notwithstanding any such termination,
the provisions of Section 5 shall remain in effect.
(c) This Agreement may also terminate pursuant to the provisions of Section
3, with the effect stated in such Section.
7. Notices. All notices and other communications under this Agreement shall
be in writing, and, if sent to the Underwriters, shall be mailed, delivered or
sent by facsimile transmission to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ number: (▇▇▇) ▇▇▇-▇▇▇▇
or, if sent to the Company, shall be mailed, delivered or sent by facsimile
transmission to it at:
Atlas Air, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
20
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
8. Effect of Default. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase the Offered Certificates that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of Offered
Certificates which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of Offered Certificates to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the principal
amount of Offered Certificates set forth opposite their respective names in
Schedule I bears to the aggregate principal amount of Offered Certificates set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as Underwriter may specify, to purchase the Offered
Certificates which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Offered Certificates that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 8 by
an amount in excess of one-ninth of such principal amount of Offered
Certificates without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Offered
Certificates which it or they have agreed to purchase on such date and the
aggregate principal amount of Offered Certificates with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Offered Certificates to be purchased on such date, and arrangements satisfactory
to you and the Company for the purchase of such Offered Certificates are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or of the Company,
except that the Company will continue to be liable for the payment of expenses
for any non-defaulting Underwriter to the extent set forth in paragraph (i) of
Section 4. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Prospectus or in any other documents
or arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters
21
or such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
9. Miscellaneous. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
22
Please confirm your agreement to the foregoing by signing in the space
provided below for that purpose and returning to us a copy hereof, whereupon
this Agreement shall constitute a binding agreement between us.
Very truly yours,
ATLAS AIR, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman, CEO and President
Accepted as of the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
BT Alex. Brown Incorporated
ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
Acting on behalf of itself and other named Underwriters
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
(Pass Through Certificates, Series 1999-1)
ATLAS AIR, INC.
Pass Through Aggregate Final Expected
Certificate Principal Interest Distribution
Designation Amounts Rate Date
1999-1A-1 $268,208,000.00 7.20% January 2, 2019
1999-1A-2 $43,544,000.00 6.88% July 2, 2009
1999-1B $111,910,000.00 7.63% January 2, 2015
1999-1C $119,904,000.00 8.77% January 2, 2011
SCHEDULE II
(Pass Through Certificates, Series 1999-1)
ATLAS AIR, INC.
Underwriter 1999-1A-1 1999-1A-2 1999-1B 1999-1C
----------- --------- --------- ------- -------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. $134,104,000 $21,772,000 $55,955,000 $59,952,000
Incorporated
BT ▇▇▇▇. ▇▇▇▇▇ Incorporated $107,283,200 $17,417,600 $44,764,000 $47,961,600
ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC $13,410,400 $2,177,200 $5,595,500 $5,995,200
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. $13,410,400 $2,177,200 $5,595,500 $5,995,200
--------------------------------------------------------------------------------
Total: $268,208,000 $43,544,000 $111,910,000 $119,904,000
================================================================================
Underwriting fees, discounts, commissions or other compensation:$4,892,094. This
sum represents 0.90% of the aggregate principal amount of the Offered
Certificates.
