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EXHIBIT 1.3
ATLAS AIR, INC.
Pass Through Certificates
Underwriting Agreement
Standard Provisions
Date
From time to time, Atlas Air, Inc., a Delaware corporation (the "Company"),
may enter into one or more underwriting agreements (each, an "Underwriting
Agreement") that provide for the sale of Designated Certificates (as defined
below) to the several underwriters named therein. Each Underwriting Agreement
will consist of a pricing agreement substantially in the form of Annex I hereto,
which may incorporate by reference the standard provisions set forth herein and
include such additions and deletions as the parties thereto may determine (the
"Pricing Agreement"). For any Underwriting Agreement, the term "Underwriters"
means the firms named in Schedule I to the applicable Pricing Agreement, and the
term "Representatives" means the firms designated in the Pricing Agreement as
the Representatives of the Underwriters in connection with such Underwriting
Agreement. The term "Representatives" also refers to a single firm acting as
sole representative of the Underwriters and to Underwriters who act without any
firm being designated as their representative.
1. Sale of Pass Through Certificates. The Company proposes that from time
to time Wilmington Trust Company as Pass Through Trustee or another Pass Through
Trustee identified in a Pricing Agreement (the "Pass Through Trustee"), pursuant
to the Pass Through Agreement, as supplemented by a supplement thereto (each, a
"Series Supplement") between the Company and the Pass Through Trustee (such Pass
Through Agreement, as supplemented by each Series Supplement relating to the
Designated Certificates (as defined below) being herein referred to as the "Pass
Through Agreement"), issue Pass Through Certificates ("Pass Through
Certificates") and, subject to the terms and conditions set forth in the
applicable Underwriting Agreement, sell to the several Underwriters therefor the
Pass Through Certificates specified in Schedule II to the related Pricing
Agreement (the "Designated Certificates"). Each series of Designated
Certificates will represent interests in a separate trust (each, a "Trust")
established pursuant to the Pass Through Agreement to fund the purchase of notes
(with respect to any series of Des-
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ignated Certificates, the "Equipment Notes") issued (a) on a nonrecourse basis
by one or more owner trustees pursuant to separate leveraged lease transactions
(such Equipment Notes, the "Leased Aircraft Notes") to finance or refinance a
portion of the equipment cost of aircraft, including engines (each, a "Leased
Aircraft" and, collectively, the "Leased Aircraft"), which have been or will be
leased to the Company pursuant to a separate lease agreement (each such lease
agreement, a "Lease") for each Leased Aircraft, or (b) by, and with recourse to,
the Company (such Equipment Notes, the "Owned Aircraft Notes") either to finance
or refinance all or a portion of the equipment cost of, or to purchase all or a
portion of the outstanding debt with respect to, aircraft, including engines
(each, an "Owned Aircraft" and, collectively, the "Owned Aircraft"; together
with Leased Aircraft, the "Aircraft"), which have been or will be purchased and
owned by the Company. In the case of either Leased Aircraft Notes or Owned
Aircraft Notes, such financing or refinancing is referred to herein as a
"Financing" or "Refinancing", respectively. In connection with each series of
Equipment Notes, the Company will enter into a separate note purchase agreement
(each a "Note Purchase Agreement") in the form given to the Representatives
prior to execution of the relevant Pricing Agreement. Each series of Leased
Aircraft Notes will be issued under a Trust Indenture and Security Agreement
between Wilmington Trust Company, as indenture trustee, or another indenture
trustee identified in a Pricing Agreement (the "Loan Trustee"), and the Owner
Trustee (the "Leased Aircraft Indenture"), the form of which has been given to
the Representatives. Each series of Owned Aircraft Notes will be issued under a
Trust Indenture and Security Agreement between Wilmington Trust Company, as
indenture trustee, or another indenture trustee identified in a Pricing
Agreement, as Loan Trustee, and the Company (the "Owned Aircraft Indenture" and
together with the Leased Aircraft Indenture, the "Indentures"). Capitalized
terms used but not otherwise defined herein shall have the meaning, with respect
to each series of Pass Through Certificates as to which such reference relates,
specified in or pursuant to the Indenture or Note Purchase Agreement relating to
each related series of Equipment Notes.
Each Pricing Agreement shall specify the aggregate face amount of the
Designated Certificates covered thereby, the initial public offering price of
such Designated Certificates, the purchase price to the Underwriters of such
Designated Certificates, the compensation payable to the Underwriters with
respect to such Designated Certificates, the names of the Underwriters of such
Designated Certificates, the names of the Rep-
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resentatives of such Underwriters and the face amount of such Designated
Certificates to be purchased by each Underwriter and shall set forth the date,
time and manner of delivery of such Designated Certificates and payment
therefor. The Pricing Agreement shall also specify certain terms and rights of
such Designated Certificates, and may specify additional representations,
warranties, agreements and conditions applicable to the sale of such Designated
Certificates. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. For each Underwriting
Agreement, the obligations of the related Underwriters shall be several and not
joint.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-_____ the
"Initial Registration Statement") relating to certain equity securities, debt
securities and pass through certificates, including the Designated Certificates,
and the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"). The Company has filed with, or
transmitted for filing to, or shall within some period of time hereafter file
with or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Designated Certificates
pursuant to Rule 424 under the Act.
The term "Preliminary Prospectus" means any preliminary prospectus included
in the Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Act. The
term "Registration Statement" means the various parts of the Initial
Registration Statement, including all exhibits thereto and including (i) the
information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and
deemed by virtue of Rule 430A under the Act to be part of the registration
statement at the time it was declared effective and (ii) the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the registration statement
became effective but excluding Form T-1, each as amended at the time such part
of the registration statement became effective or such part of a registration
statement increasing the size of the offering filed pursuant to Rule 462(b)
under the Act (a "Rule 462(b) Registration Statement"), if any, became or
hereafter becomes effective, such final prospectus in form first filed pursuant
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to Rule 424(b) under the Act, being hereafter called the "Prospectus"; any
reference herein to any preliminary Prospectus or the Prospectus shall be deemed
to refer to and include documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or the Prospectus, as the case may be; any reference to any amendment
to the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to the Prospectus
as amended or supplemented shall be deemed to refer to the Prospectus as amended
or supplemented in relation to the applicable Designated Certificates in the
form in which it is filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof, including any documents incorporated
by reference therein as of the date of such filing. The term "Pass Through
Documents" with respect to any Designated Certificates means the Underwriting
Agreement, the Pass Through Agreement, each Note Document (as defined in the
Pass Through Agreement), any Participation Agreement relating to the Equipment
Notes underlying such Designated Certificates, and each other agreement or
document referred to in the relevant Pricing Agreement. The term "Company PTC
Documents" with respect to any Designated Certificates means the Pass Through
Documents relating to such Designated Certificates to which the Company is or is
intended to be a party.
2. Representations and Warranties. For any Underwriting Agreement and the
related Designated Certificates the Company represents and warrants to, and
agrees with, each Underwriter therefor that:
(a) The Company meets the requirements for use of Form S-3 under the
Act for purposes of the registration under the Act of the Pass Through
Certificates; the Company is the "issuer" within the meaning of the Act and
appropriate registrant with respect to the Pass Through Certificates. The
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to the Representatives
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and, excluding exhibits to the Initial Registration Statement, but
including all documents incorporated by reference in the prospectus
contained therein, to the Representatives for each of the other
Underwriters, has been declared effective by the Commission in such form,
other than a Rule 462(b) Registration Statement, if any, which became
effective upon filing; no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission; no
stop order suspending the effectiveness of the Initial Registration
Statement has been issued and no proceeding for that purpose has been
initiated or, to the Company's knowledge, threatened by the Commission;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Representative expressly for use in the Prospectus
as amended or supplemented relating to such Designated Certificates;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
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the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date and Time of Delivery (as defined below) as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Representative with respect to the Designated
Certificates expressly for use in the Prospectus as amended or supplemented
relating to such Designated Certificates; on the effective date of the
Registration Statement the form of the Pass Through Agreement filed as an
exhibit to the Registration Statement did comply in all material respects
with the requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the rules thereunder, and as of the Time of
Delivery the Pass Through Agreement will comply in all material respects
with the requirements of the Trust Indenture Act and the rules thereunder;
(d) Since the date of the latest financial statements included or
incorporated by reference in the Prospectus, there has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus;
(e) The Company has been duly organized, validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power, and authority to own its property
and conduct its business as described in the Prospectus and to perform its
obligations under each such Company PTC Document to which it is, or is to
be, a party; the Company is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
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would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole (an "Atlas Material Adverse Effect");
(f) The Company is a "citizen of the United States" (as defined in
Section 40102(a)(15) of Title 49 of the United States Code, as amended and
is an air carrier operating under a certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49 of the United States
Code, for aircraft capable of carrying 10 or more individuals or 6,600
pounds or more of cargo. There is in force with respect to the Company an
air carrier operating certificate issued pursuant to Part 121 of the
regulations under sections of Title 49, United Stated Code (the "Federal
Aviation Act").
(g) The Company PTC Documents relating to such Designated Certificates
to which the Company is, or is to be, a party, have each been duly
authorized by the Company, do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Company, and do not and will not contravene any law,
judgment, governmental rule, regulation, order or decree currently in
effect or in effect at the time of execution and delivery of such document
and applicable to the Company or any of its subsidiaries or the certificate
of incorporation or by-laws of the Company or any of its subsidiaries or
contravene or result in a breach of any of the terms or the provisions of,
or constitute a default under, or result in the creation of any Lien (other
than as permitted under each Lease and each Owned Aircraft Indenture
relating to a series of Equipment Notes) upon the property of the Company
under any indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of its subsidiaries may be bound or affected, which contravention,
breach or default would have an Atlas Material Adverse Effect;
(h) Neither the valid authorization, execution and delivery by the
Company of the Company PTC Documents relating to such Designated
Certificates in accordance with the provisions thereof, nor the
consummation by the Company of any of the transactions contemplated
thereby, requires the consent or approval of,
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the giving of notice to, or the registration with, or the taking of any
other action in respect of, the U.S. Department of Transportation, the
Federal Aviation Administration (the "FAA"), the Commission or any other
federal or state governmental authority or agency, other than (i) the
registration of the issuance and sale of the Pass Through Certificates
under the Act and under the securities laws of any state in which the Pass
Through Certificates may be offered for sale if the laws of such state
require such action, (ii) the qualification of the Pass Through Agreement
under the Trust Indenture Act and (iii) the filing of certain Operative
Documents (as defined in the relevant Note Purchase Agreement) and, in the
case of a Refinancing, Original Documents (as defined in the relevant Note
Purchase Agreement), with the FAA, all of which shall have been or shall be
made on or prior to each relevant Transfer Date (as defined in the Pass
Through Agreement);
(i) The Company PTC Documents (except, with respect to the date of the
Pricing Agreement, each Series Supplement and Company PTC Document
specified in the Pricing Agreement) relating to such Designated
Certificates have been duly executed and delivered by the Company, and each
such Company PTC Document constitutes a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with the terms
thereof, subject, as to enforceability, (A) to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally, (B) to recognized equitable
principles of general application to or affecting the enforcement of
creditors' rights, and (C) to limitations on rights to indemnity under
federal and state securities laws or the public policy underlying such
laws;
(j) None of the Trusts is required to be registered under the
Investment Company Act of 1940, as amended;
(k) The Operative Documents relating to each series of Equipment Notes
are substantially in the form filed or to be filed as exhibits to the
Registration Statement or in a post-effective amendment thereto or a report
by the Company under the Exchange Act, and the Pass Through Agreement has
been duly qualified under
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the Trust Indenture Act; the Designated Certificates, Pass Through
Agreement, Indentures, Note Purchase Agreements, any Leases, any
Participation Agreements, any Intercreditor agreement, any liquidity
facility and other Operative Documents relating to each series of Equipment
Notes, conform or will upon execution conform in all material respects to
the descriptions thereof in the Prospectus as amended or supplemented
relating to such Designated Certificates;
(l) Assuming the accuracy of the representations and warranties of the
Pass Through Trustee contained in each Note Purchase Agreement and in any
Participation Agreement relating to a series of Equipment Notes, the Pass
Through Certificates issued or to be issued under the Pass Through
Agreement, when duly authorized, executed, authenticated and delivered by
the Pass Through Trustee in accordance with the terms thereof, will be duly
issued thereunder and will constitute the valid and binding obligation of
the Pass Through Trustee; and the holders thereof will be entitled to the
benefits of the Pass Through Agreement; in each case except as may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity
or at law);
(m) The documents incorporated by reference into each Preliminary
Prospectus and Prospectus have been, and each document filed by the Company
hereafter pursuant to Section 13, 14 or 15(d) of the Exchange Act prior to
the termination of the offering of the Designated Certificates (such
subsequently filed documents being referred to herein as "Incorporated
Documents") will be, prepared by the Company in conformity in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder and such documents have been, or in the case of an
Incorporated Document will be, timely filed as required thereby; accurate
copies of each of the documents incorporated by reference into each
Preliminary Prospectus and the Prospectus have been delivered by the
Company to the Representatives and accurate copies of any Incorporated
Documents will be delivered to the Representatives promptly upon filing
thereof;
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(n) The accountants that examined and issued an auditors report with
respect to the consolidated financial statements of the Company and its
consolidated subsidiaries included in the Registration Statement and
Prospectus, are independent public accountants within the meaning of the
Act and the rules thereunder;
(o) The consolidated financial statements filed as part of the
Registration Statement or included in, or incorporated by reference into,
any Preliminary Prospectus or Prospectus present fairly, and the financial
statements included in any Incorporated Document will present fairly, the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows or changes in financial position of the Company
and its consolidated subsidiaries for the periods specified. Such financial
statements have been and, in the case of financial statements included in
any Incorporated Document will be, prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved; and
(p) Except as accurately described in all material respects in the
Prospectus and except as would not have an Atlas Material Adverse Effect
and would not materially and adversely affect the ability of the Company to
perform its obligations under any Company PTC Documents to which it is, or
is to be a party, there are no legal or governmental proceedings pending,
or, to the best knowledge of the Company, threatened, to which the Company
or any of its subsidiaries is or may be a party or to which any of the
property of the Company or any of its subsidiaries is or may be the
subject.
In addition, for any Underwriting Agreement and the related Designated
Certificates, all of the representations and warranties by the Company contained
in each Note Purchase Agreement and any Participation Agreement relating to a
series of Equipment Notes are incorporated by reference in such Underwriting
Agreement as if set forth herein, and the Company represents and warrants to
each of the Underwriters with respect to such Designated Certificates that such
representations and warranties are true and correct as of the date of the
Pricing Agreement with respect to such Designated Certificates, except to the
extent that such representations and warranties relate
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solely to an earlier date or later date (in which case such representations and
warranties are correct on and as of such earlier date or will be correct on and
as of such later date, as the case may be).
3. Offer by Underwriters. Upon the execution of the Pricing Agreement
applicable to any Designated Certificates and authorization by the
Representatives of the release of such Designated Certificates, the several
Underwriters propose to offer such Designated Certificates for sale upon the
terms and conditions set forth in the related Prospectus as amended or
supplemented with respect to such Designated Certificates.
4. Delivery and Payment. Designated Certificates to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in definitive
form to the extent practicable, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, at the place and time and date specified in such Pricing Agreement
or at such other place and time and date as the Representatives and the Company
may agree upon in writing or as provided in Section 9 hereof (such date being
herein called the "Closing Date" and such time of delivery and payment for the
Certificates being herein called the "Time of Delivery"). Such delivery of the
Designated Certificates shall be made to the Representatives for the account of
each such Underwriter against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer, payable to the order of the Pass
Through Trustee (or such other person as the Company may direct) in Federal
(same day) funds specified in such Pricing Agreement.
The Company agrees to have the Certificates available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 P.M. on the business day prior to the Closing Date.
5. Agreements. The Company agrees with each of the Underwriters of any
Designated Certificates:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Certificates in a form reasonably approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following
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the execution and delivery of the Pricing Agreement relating to the
applicable Designated Certificates or, if applicable, such earlier time as
may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Designated Certificates and prior to the Time of Delivery for such
Designated Certificates which shall be reasonably disapproved by the
Representatives for such Designated Certificates promptly after reasonable
notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Designated Certificates,
and during such same period to advise the Representatives, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed, or
transmitted for filing, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any prospectus relating
to such Designated Certificates, of the suspension of the qualification of
such Designated Certificates for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to such
Designated Certificates or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) To cooperate with you and counsel for the Underwriters for the
qualification of such Designated Certificates for sale under the laws of
such jurisdictions as you may reasonably designate, to maintain such
qualifications in effect so long as required for the distribution of such
Designated Certificates and will cooperate with you and counsel for the
Underwriters in
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determining the legality of such Designated Certificates for purchase by
institutional investors. The Company, however, shall not be obligated to
qualify as a foreign corporation or file any general consent to service of
process under the laws of any such jurisdiction or subject itself to
taxation as doing business in any such jurisdiction;
(c) As soon as practicable but in no case later than noon, New York
City time, on the New York Business Day next succeeding the date of any
Pricing Agreement and from time to time, to furnish the Underwriters with
copies of the Prospectus in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of such Designated Certificates and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities (it being
understood that each such Underwriter and dealer shall, at the Company's
request, be specified by the Representatives to the Company) as many copies
as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance; and in case the
Representatives or any of the Underwriters or any dealer in securities is
required to deliver a prospectus in connection with sales of any Designated
Certificates at any time nine months or more after the time of issue of the
Prospectus as amended or supplemented relating to such Designated
Certificates, then upon the request of the Representatives, but at the
expense of the Representatives, the relevant Underwriters or the relevant
dealers in securities, as the case may be, the Company shall prepare
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and deliver to the Representatives, such Underwriters or such dealers in
securities as many copies as the Representatives may request of any amended
or supplemented prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than 18 months after the effective
date of the Registration Statement (as defined in Rule 158(c)), an earning
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of
the Commission thereunder (including at the option of the Company Rule
158); (e) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of the
applicable Pricing Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Act; and
(f) During the period beginning from the date of the Pricing Agreement
for such Designated Certificates and continuing to and including the
earlier of (i) the termination of trading restrictions for such Designated
Certificates, as notified to the Company by the Representatives, and (ii)
the Time of Delivery for such Designated Certificates, not to offer, sell,
contract to sell or otherwise dispose of any public debt securities
registered under the Act or any debt securities which may be sold in a
transaction exempt from the registration requirements of the Act in
reliance on Rule 144A under the Act and which are marketed through the use
of a disclosure document containing substantially the same information as a
prospectus for similar debt securities registered under the Act without the
prior written consent of the Representatives, which consent shall not be
unreasonably withheld.
In addition, the Company agrees with each Underwriter of Designated
Certificates that, if the purchase of any Equipment Notes is delayed pursuant to
a Postponement Notice (as defined
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in the Pass Through Agreement) then, prior to any such purchase all conditions
specified in any related Participation Agreement, Note Purchase Agreement or
Pass Through Agreement to be performed or satisfied at or prior to such purchase
shall have been performed or satisfied; and the Company will provide (or cause
to be provided) to the Representatives executed copies of all documents
delivered under such Participation Agreement, Note Purchase Agreement or Pass
Through Agreement and of each opinion to be delivered pursuant to such
Participation Agreement (other than any opinion delivered to an Owner
Participant (in the case of any Leased Aircraft Notes) relating solely to tax
matters), Note Purchase Agreement or Pass Through Agreement, addressed to the
Representatives on behalf of the Underwriters or accompanied by a letter from
counsel rendering such opinion authorizing the Underwriters to rely on such
opinion as if it were addressed to them.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters of any Designated Certificates under the Underwriting Agreement
relating to such Designated Certificates shall be subject, at the discretion of
the Representatives, to the condition that all representations and warranties
and other statements of the Company in or incorporated by reference in the
Underwriting Agreement relating to such Designated Certificates are, at and as
of the Time of Delivery for such Designated Certificates, true and correct in
all material respects, except to the extent that such representations and
warranties relate solely to an earlier date or later date (in which case such
representations and warranties are correct on and as of such earlier date or
will be correct on and as of such later date, as the case may be), the condition
that the Company shall have performed in all material respects all of its
obligations under such Underwriting Agreement theretofore to be performed, and
the following additional conditions:
(a) The Prospectus as amended and supplemented in relation to the
applicable Designated Certificates shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 P.M., Washington, D.C. time, on the date of the Pricing
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued
16
-16-
and no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) At the Time of Delivery, the Representatives shall have received:
(1) An opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the
Company, dated the Time of Delivery for the Designated Certificates, in
substantially the form of Exhibit A attached hereto;
(2) Counsel for the Company reasonably satisfactory to the
Representatives (it being understood that the Company's General Counsel,
Associate General Counsel or an Assistant General Counsel is reasonably
satisfactory to the Representatives) shall have furnished to the Representatives
their written opinion, dated the Time of Delivery for the Designated
Certificates, in substantially the form of Exhibit B attached hereto;
(3) Counsel for the Pass Through Trustee shall have furnished to the
Representatives their written opinion, dated the Time of Delivery for the
Designated Certificates, in substantially the form of Exhibit C attached hereto;
(4) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for the
Designated Certificates, with respect to the incorporation of the Company, the
validity of the Designated Certificates and the Pass Through Agreement with
respect thereto, the Registration Statement, the Prospectus and other related
matters as you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(5) A certificate of the Company, signed by any two of the Chairman,
President, Senior Vice President-Finance, Vice President-Treasurer or Vice
President-Comptroller, dated the Time of Delivery for the Designated
Certificates, to the effect that:
(i) the representations and warranties of the Company in or
incorporated in such Underwriting Agreement are true and correct in
all material respects on and as of the Time of
17
-17-
Delivery with the same effect as if made at the Time of Delivery and
the Company has complied with all the agreements and satisfied all the
conditions herein and in each Note Purchase Agreement and any
Participation Agreement relating to a series of Equipment Notes on its
part to be performed or satisfied at or prior to the Time of Delivery;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or to the Company's knowledge,
threatened; and
(iii) since the date of the latest financial statements included
or incorporated by reference in the Prospectus, there has been no
material adverse change in the financial condition or operations of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus as amended or
supplemented;
(c) On the date of the Pricing Agreement for such Designated
Certificates and at the Time of Delivery for the Designated Certificates,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the independent accountants of the Company, who have
audited the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement, shall
have furnished to the Representatives a Letter, dated the effective date of
the Registration Statement or the date of the most recent report filed with
the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with respect
to such letter dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance reasonably
satisfactory to the Representatives;
(d) Subsequent to the time of execution of the Pricing Agreement
relating to the Designated Certifi-
18
-18-
▇▇▇▇▇, there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (c) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries,
taken as a whole, the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the reasonable judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to proceed
with the public offering or the delivery of the Designated Certificates as
contemplated by the Prospectus as amended or supplemented;
(e) Subsequent to the time of execution of the Pricing Agreement
relating to the Designated Certificates (i) there shall not have been any
decrease in the ratings of any of the Company's debt securities by Standard
& Poor's Ratings Service or ▇▇▇▇▇'▇ Investors Service, Inc. and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's unsecured debt securities;
(f) All conditions specified in each Note Purchase Agreement and any
Participation Agreement relating to a series of Equipment Notes to be
performed or satisfied on or prior to the relevant Transfer Date shall have
been performed or satisfied; and the Representatives shall have received
copies of all documents delivered under each such Note Purchase Agreement
and Participation Agreement, which shall be executed copies in the case of
Operative Documents and such other documents as the Representatives shall
reasonably request and shall be true and complete copies of executed
documents in the case of any other documents, and executed copies of each
opinion to be delivered pursuant to each such Note Purchase Agreement and
Participation Agreement (other than, in the case of any Leased Aircraft
Notes, any opinion delivered to the Owner Participant relating to solely
tax matters), addressed to the Representatives on behalf of the
Underwriters or accompanied by a letter from counsel rendering such opinion
authorizing the Underwriters to rely on such opinion as if it were
addressed to them; provided, however, that this condition (f) need not be
satisfied prior to the Time of Delivery with respect to conditions
specified in any such Note Purchase Agreement or Participation
19
-19-
Agreement under which the purchase of the Equipment Notes contemplated
thereby is delayed until after the Time of Delivery pursuant to a
Postponement Notice to the Pass Through Trustee pursuant thereto;
(g) Prior to the Time of Delivery, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request; and
(h) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of the Pricing Agreement.
All such opinions, certificates, letters and documents shall be deemed to
be in compliance with the provisions hereof only if they are in all material
respects reasonably satisfactory to the Representatives and counsel to the
Underwriters; provided, however, to the extent that any of the matters set forth
in the opinions annexed as Exhibits A, B or C hereto shall be separately covered
in substantially the same form in legal opinions of the relevant legal counsel
addressed to the Representatives and delivered at the Time of Delivery in
connection with the Note Purchase Agreement or Participation Agreements, such
other legal opinions shall be deemed to satisfy the foregoing requirements to
the extent of the matters covered.
For any Underwriting Agreement, if any condition specified in this Section
shall not have been fulfilled in all material respects when and as required to
be fulfilled, other than by reason of any default by any Underwriter, such
failure to fulfill a condition may be waived by the Representatives, or such
Underwriting Agreement may be terminated by the Representatives by written
notice to the Company at, or at any time prior to, the Time of Delivery for the
related Designated Certificates. Notice of such termination shall be given to
the Company in writing or by oral communication or telegraph confirmed in
writing.
7. Payment of Expenses. For any Underwriting Agreement, the Company will
pay the reasonable costs incident to the authorization, issuance, sale and
delivery of the Designated Certificates to be sold to the Underwriters and any
taxes payable in that connection; the reasonable costs (other than fees and
disbursements of counsel for the Underwriters, except as provided below)
incident to the preparation, printing and fil-
20
-20-
ing under the Act of the Registration Statement and any amendments and exhibits
thereto, any Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto; the costs incident to the preparation, printing and filing
of any document and any amendments and exhibits thereto required to be filed by
the Company under the Exchange Act, any Incorporated Document or any other
document relating to any of the transactions contemplated by any of the Note
Purchase Agreements or Participation Agreements relating to the Equipment Notes
in connection with any such transaction or the related Financing or Refinancing,
as the case may be; the costs of distributing the Registration Statement as
originally filed and each amendment thereto (including exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus and any documents incorporated by reference in any of the foregoing
documents, as provided in such Underwriting Agreement; the fees paid to rating
agencies in connection with the rating of the Designated Certificates; the costs
incident to issuance and delivery of the Designated Certificates to the
Underwriters; the fees and expenses of qualifying the Designated Certificates
under the securities laws of the several jurisdictions as provided in this
Section and of preparing a Blue Sky Memorandum and a memorandum concerning the
legality of the Designated Certificates as an investment (including reasonable
fees and disbursements and other charges of counsel to the Underwriters ("Blue
Sky Fees")); and all other costs and expenses incident to the performance of the
obligations of the Company under such Underwriting Agreement; provided that,
except as provided in this Section and in Sections 8 and 12, each of the
Underwriters shall pay its own expenses (including the fees of counsel for the
Underwriters (other than Blue Sky Fees)) and the expenses of advertising any
offering of the Designated Certificates made by it.
8. Indemnification and Contribution. For any Underwriting Agreement:
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
mate-
21
-21-
rial fact contained in the Registration Statement or in any amendment
thereof, or in any Preliminary Prospectus, preliminary prospectus
supplement relating to the Designated Certificates or the Prospectus, or in
any amendment thereof or supplement thereto, or in any other prospectus
relating to the Pass Through Certificates, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Representatives specifically for use
therein, (ii) such indemnity with respect to any Preliminary Prospectus
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) as to whom it shall be established did not
send or deliver to the person asserting any such loss, claim, damage or
liability and who purchased the Designated Certificates which are the
subject thereof a copy of the Prospectus as amended or supplemented
excluding documents incorporated therein by reference at or prior to the
written confirmation of the sale of such Designated Certificates to such
person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such
Preliminary Prospectus was corrected in the Prospectus as amended or
supplemented and (iii) the Company will not be Liable for any such loss,
claim, damage or liability in connection with any settlement of any pending
or threatened litigation or any pending or threatened governmental agency
investigation or proceeding if that settlement is effected without the
prior written consent of the Company, which consent shall not be
unreasonably withheld. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
22
-22-
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any loss, claim, damage, liability or action, but only with
reference to written information furnished to the Company by or on behalf
of any Underwriter specifically for inclusion in the Registration
Statement, any Preliminary Prospectus, any preliminary prospectus
supplement relating to the Designated Certificates, the Prospectus, or in
any amendment thereof or supplement thereto, or any other prospectus
relating to the Designated Certificates. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action or proceeding (including any
governmental investigation), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against the indemnifying
party under Section 8 (a) or (b) hereof, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any Liability which it may have
to such indemnified party otherwise than under this Section 8 (a) or (b)
hereof, and then only to the extent that the indemnifying party is
prejudiced thereby. In case any such action or proceeding is brought
against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein (jointly with any other indemnifying party similarly
notified), and to the extent that it may elect, by written notice,
delivered to such indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that
23
-23-
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to defend such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to appoint counsel to
defend such action and approval by the indemnified party of such counsel,
the indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed separate counsel in accordance
with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses
of more than one separate counsel, approved by the Underwriters in the case
of paragraph (a) of this Section 8, representing the indemnified parties
under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or
(b) of this Section 8 is due in accordance with its terms but is for any
reason unavailable on grounds of policy or otherwise, the Company and the
Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company and
one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the
Designated Certificates to which such loss, claim, damage, or liability (or
action in respect thereof) relates. If the allocation
24
-24-
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable to such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total proceeds from such offering net of compensation paid to the
Underwriters with respect thereto (but before deducting expenses) bear to
the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or such Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding (including any governmental
investigation) against such party in respect of which a claim for
contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have here under or otherwise than under
this paragraph (d), except to the extent that the party or parties is
prejudiced thereby. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
25
-25-
thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which (i) the total price at which the applicable Designated
Certificates underwritten by it and distributed to the public were offered
to the public exceeds (ii) the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls any Underwriter within the meaning of either the Act or
the Exchange Act shall have the same rights to contribution as any
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each
case to the provisions of this paragraph (d). The obligations of the
Underwriters of Designated Certificates in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Designated Certificates and not joint.
9. Default by an Underwriter. (a) If any Underwriter shall default in its
obligation to purchase the Designated Certificates which it has agreed to
purchase under the Underwriting Agreement relating to such Designated
Certificates, the Representatives with respect thereto may in their discretion
arrange for themselves or another party or other parties to purchase such
Designated Certificates on the terms contained herein. If within thirty-six
hours after such default by any Underwriter such Representatives do not arrange
for the purchase of such Designated Certificates, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties reasonably satisfactory to the Representatives to
purchase such Designated Certificates on such terms. In the event that, within
the respective prescribed period, such Representatives notify the Company that
they have so arranged for the purchase of such
26
-26-
Designated Certificates, or the Company notifies such Representatives that it
has so arranged for the purchase of such Designated Certificates, such
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Designated Certificates for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the
reasonable opinion of such Representatives may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to the Underwriting Agreement with respect to such Designated
Certificates.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Certificates of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate face amount of any series of such Designated Certificates which
remains unpurchased does not exceed one-eleventh of the aggregate face amount of
the relevant series of such Designated Certificates, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the face amount
of Designated Certificates which such Underwriter agreed to purchase under the
Underwriting Agreement relating to such Designated Certificates and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the face amount of Designated Certificates which such
Underwriter agreed to purchase under such Underwriting Agreement) of the
Designated Certificates of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Certificates of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate face amount of any series of Designated Certificates which remains
unpurchased exceeds one-eleventh of the aggregate face amount of the relevant
series of such Designated Certificates, as referred to in subsection (b) above,
or if the Company shall not exercise the right described in subsection (b) above
to require non-defaulting Underwriters to purchase Designated Certificates of a
defaulting Underwriter or Underwriters, then the Underwriting Agreement relating
to such Designated Certificates shall there-
27
-27-
upon terminate, without liability on the part of any non-defaulting Underwriter
or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Sections 7 and 12 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. Termination. Any Underwriting Agreement shall be subject to termination
in the discretion of the Representatives with respect thereto, by notice given
to the Company prior to Time of Delivery for the applicable Designated
Certificates, if prior to such time (i) trading in the Company's common stock
shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred any
material outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the reasonable judgment of such Representatives, impracticable
to market such Designated Certificates.
11. Representations and Indemnities to Survive. The respective indemnities,
agreements, representations, warranties and other statements of the Company or
its officers and of the Underwriters as set forth in or made by or pursuant to
any Underwriting Agreement shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any such Underwriter or the Company or any of the officers, directors
or controlling persons of the Company or the Underwriters referred to in Section
8 hereof, and shall survive delivery of and payment for the Designated
Certificates relating to such Underwriting Agreement. The provisions of Sections
8, 11 and 12 of such Underwriting Agreement shall survive the termination or
cancellation of such Underwriting Agreement.
12. Reimbursement of Underwriters' Expenses. If the Underwriting Agreement
relating to the sale of any Designated Certificates shall be terminated pursuant
to Section 9 or Section 10 hereof, then the Company shall not then be under any
liability to any Underwriter with respect to the Designated Certificates
relating to such Underwriting Agreement except as provided in Section 7 and
Section 8 hereof; but if the sale of any Designated Certificates is not
consummated because any condition set forth in Section 6 hereof is not
satisfied, because
28
-28-
of any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement in the
Underwriting Agreement relating to such Designated Certificates or comply with
any provision thereof other than by reason of a default by any of the
Underwriters for such Designated Certificates, the Company will reimburse such
Underwriters severally through the Representatives upon demand for all
reasonable out-of-pocket expenses approved in writing by the Representatives
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Designated Certificates but the Company shall then be under no further liability
to any Underwriter with respect to such Designated Certificates except as
provided in Section 7 and Section 8 hereof.
13. Notices. In all dealings hereunder, the Representatives of the
Underwriters of Designated Certificates shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives Jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Treasurer (with a copy to the General
Counsel); provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. Successors. Each Underwriting Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters thereunder, the Company and, to
the extent provided in Section 8 and Section 11 hereof, the officers and
directors of the Company and each person who controls the Company or any such
Underwriter, and their respective heirs, executors, admin-
29
-29-
istrators, successors and assigns, and no other person shall acquire or have any
right under or by virtue of such Underwriting Agreement. No purchaser of any of
the Pass Through Certificates from any Underwriter therefor shall be deemed a
successor or assign by reason merely of such purchase.
15. Time is of Essence. Time shall be of the essence of each Underwriting
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business and "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
16. APPLICABLE LAW. EACH UNDERWRITING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Counterparts. Each Underwriting Agreement may be executed by any one or
more of the parties thereto in any number of counterparts, each of which shall
be deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
Very truly yours,
ATLAS AIR, INC.
By:___________________
Name:
Title:
30
Annex I
Underwriting Agreement
PRICING AGREEMENT
Dear Sirs:
Atlas Air, Inc., a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions set forth or incorporated by reference herein to
cause the Pass Through Trustee (as defined in the Standard Provisions referred
to below) to issue and sell to each of the Underwriters named in Schedule I
hereto (the "Underwriters") the Pass Through Certificates, Series _, specified
in Schedule II hereto (the "Designated Certificates"). Each of the provisions of
the document entitled Atlas Air, Inc. Pass Through Certificates Underwriting
Agreement Standard Provisions dated _________, 1998 (the "Standard Provisions")
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions of
the Standard Provisions so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Standard Provisions
are used herein as therein defined. The Representative designated to act on
behalf of the Representatives and on behalf of each of the Underwriters of the
Designated Certificates pursuant to Section 13 of the Underwriting Agreement and
the address of the Representatives referred to in such Section 13 are set forth
at the end of Schedule II hereto.
Subject to the terms and conditions set forth or incorporated by reference
herein, each of the Underwriters agrees, severally and not jointly, to purchase
from the Pass Through Trustee, at the time and place and at the purchase price
to the Underwriters set forth in Schedule II hereto, the face amount of each
series of Designated Certificates set forth opposite the name of such
Underwriter in Schedule I hereto.
As compensation to each of the Underwriters for their respective
commitments and obligations hereunder in respect of the Designated Certificates,
including their undertaking to offer the Designated Certificates for sale to the
public, the Company will pay (or cause to be paid) to the Representatives for
the respective accounts of the Underwriters the percentage
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of the aggregate face amount of each series of Designated Certificates purchased
by each Underwriter as set forth on Schedule II hereto. Such payment will be
made by wire transfer in Federal (same day) funds to the order of
_____________________ at the time heretofore agreed by the Company and the
Representatives. If the foregoing is in accordance with your understanding,
please sign and return to us four counterparts hereof, and upon acceptance
hereof to you, on behalf of each of the Underwriters, this Letter and such
acceptance hereof, including the provisions of the Standard Provisions
incorporated by reference herein, shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that your acceptance
of this Letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination, upon request.
Very truly yours,
ATLAS AIR, INC.
By:___________________
Name:
Title:
Accepted as of the date hereof:
Name of designated Representative
By: _____________________________
Title:
On behalf of each of the Underwriters
32
SCHEDULE I
Face
Amount of
Designated
Certificates
to be
Underwriter Purchased*
--------------------------- ..................................... ----------
--------------------------- ..................................... ----------
--------------------------- ..................................... ----------
Repeat column for each series of Designated Certificates.
-----------
Total..........................................
===========
33
SCHEDULE II
Title of Designated Certificates:
Aggregate face amount:
Price to Public:
Purchase Price of Underwriters:
Final Maturity:
Rate:
Regular Distribution Dates:
Special Distribution Dates:
Record Dates:
Denominations:
Compensation to Underwriters (as a percentage of face amount of
Designated Certificates):
Concession to Dealers (as a percentage of face amount of Designated
Certificates):
Reallowance Concessions (as a percentage of face amount of Designated
Certificates):
Time of Delivery:
Closing Location:
Names and addresses of Representatives:
Trust Property:
The property held in each Trust relating to the Series ___ and Series ___
Designated Certificates will consist of leased aircraft notes(the Leased
Aircraft Notes" or "Equipment Notes from each of ___ separate series of Leased
Aircraft Notes being issued as nonrecourse obligations by the Owner Trustee in
connection with the financing refinancing of the debt equity portion of the
purchase price paid by such Owner Trustee on behalf of _________ separate Owner
Trusts, respectively, in respect of ____ separate Aircraft which were leased to
the Company in ____ separate leveraged lease transactions identified on Annex A
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hereto and owned aircraft notes ("Owned Aircraft Notes" or "Equipment Notes")
being issued with recourse to the Company in connection with the financing
refinancing of the debt equity portion of the purchase price paid by the Company
in respect of ___ separate Aircraft for the Company's general corporate
purposes, using Owned Aircraft as collateral. Each Trust will include Equipment
Notes with identical interest rates, in each case equal to the rate applicable
to the Series ___ or Series ___ Designated Certificates, as the case may be, and
will have maturity dates on or before the final distribution date for the Series
___ or Series ___ Designated Certificates, as the case may be. For each such
Trust, the aggregate principal amount of the Equipment Notes held in such Trust
will equal the aggregate amount of the related series of Designated
Certificates.
Other Terms:
For each of the ___ Aircraft, _ series of Equipment Notes, each of which
will have a different principal amount, interest rate, maturity date and
schedule of principal payments, will be issued under the related Indenture. The
aggregate principal amounts of the Equipment Notes issued with respect to each
Aircraft, as such Equipment Notes are held in each of the Trusts, are as set
forth on Annex B hereto.
Additional Covenants:
The Company agrees with each of the Underwriters to cause to be filed with
the Securities and Exchange Commission prior to the Time of Delivery the
following agreements:
refer to Operative Documents and Pass Through Documents other than the Pass
Through Agreement and the indentures.
Intercreditor Arrangements: Specify and provide details, if any.
Liquidity Facility or Other Credit Support: Specify and provide details, if
any.
Additional Pass Through Documents:
Liquidity Facility documents
Intercreditor Agreement
Deposit Agreement or similar arrangement referred to in Section 2.01 of
the Pass Through Agreement
Variation of Standard Terms: Specify, if any
35
Annex II
ATLAS AIR, INC.
Pursuant to Section 6(c) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the representative or
representatives of the Underwriters (the "Representatives") such term
to include an Underwriter or Underwriters who act without any firm
being designated as its or their representatives and are attached
hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of operations,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or in-
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cluded in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon
copies of which are attached hereto; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to
in paragraph (vi)(A)(i) below comply as to form in all, material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations,
nothing came to their attention that caused them to believe that the
unaudited condensed consolidated financial statement do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
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(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements of operations,
consolidated balance sheets and consolidated statements of cash flows included
in the Prospectus and/or included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do
not comply as to form in all materials respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations, or (ii) any material medications should be made to the unaudited
condensed consolidated statements of operations, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or included in
he Company's Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited financial statements from which such data and items were derived, and
any such unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred t o in Clause (B)
were
38
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not determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the Act
and the published rules and regulations thereunder or the pro forma adjustments
have not been properly applied to the historical amounts in the compilation of
those statements;
(E) as of a specified date not more than five days prior to the date of
such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in consolidated operating
revenues or operating income or the total or per share amounts of consolidated
net income available to common shareholders or other items specified by the
Representatives, or any increases in any items specified by the Representatives,
except in each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such Letter; and
(vii) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts,
39
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percentages and financial information specified by the Representatives which are
derived from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the Letter delivered at the Time of Delivery for such Designated
Securities.
