EXHIBIT 4.1.40
EXECUTION COPY
1998 EETC TRANSACTION
1998 CLASS A PASS THROUGH TRUST SUPPLEMENT
THIS PASS THROUGH TRUST SUPPLEMENT is made as of the 27th day of July,
2004 (this "TRUST SUPPLEMENT"), by and between ATLAS AIR, INC. (the "COMPANY")
and WILMINGTON TRUST COMPANY (the "TRUSTEE"), as Trustee under the Pass Through
Trust Agreement dated as of February 9, 1998, between the Company and the
Trustee with respect to the formation of Atlas Air Pass Through Trust 1998-1A-S
(as amended from time to time, the "TRUST AGREEMENT").
PRELIMINARY STATEMENT
As contemplated by the Restructure Agreements, dated as of July 27, 2004,
among the Company, the Trustee and the other parties named therein
(collectively, the "RESTRUCTURE AGREEMENTS"), the Company and the Trustee desire
to enter into this Trust Supplement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS.
Capitalized terms used and not otherwise defined herein shall have the
same meanings given to them in the Trust Agreement.
2. AMENDMENTS TO TRUST AGREEMENT.
The Trust Agreement is amended as follows:
(a) The following Section 12.15 is added after Section 12.14 of the
Trust Agreement:
"12.15 ADDITIONAL PROVISIONS REGARDING LEASES AND INDENTURES.
(a) The Trustee and the Company acknowledge and agree that (i)
each of the Leases has been amended by a certain amendment dated as
of July 27, 2004 between the Owner Trustee named therein and the
Company (collectively, the "Lease Amendments"), and (ii) each of the
Indentures has been amended by a certain supplement dated as of July
27, 2004 between the Company or the Owner Trustee (as applicable)
named therein and the Mortgagee named therein (collectively, the
"Indenture Supplements"). As of the Restructure Agreement Execution
Date, (x) all references herein to the Leases shall mean and refer
to the Leases as amended by the Lease Amendments and as further
amended from time to time, (y) all references herein to the
Indentures shall mean and refer to the Indentures as amended by the
Indenture Supplements and as further amended from time to time, and
(z) all capitalized terms used herein without definition shall have
the respective meanings specified in the Leases, as amended by the
Lease Amendments, and in the Indentures, as amended by the Indenture
Supplements.
(b) The Trustee and the Company agree that in addition to the
duties and responsibilities of the Trustee hereunder, the Trustee
shall also, on and after the Restructure Agreement Execution Date,
have the following duties and responsibilities:
(i) As promptly as practical after, and in any event
within 10 days after, the receipt by the Trustee from the Loan
Trustee of any notice regarding any Enhancements pursuant to
the Leases or the Indentures, the Trustee shall transmit by
mail to the Certificateholders holding Certificates in
accordance with Section 313(c) of the Trust Indenture Act, a
copy of such notice.
(ii) As promptly as practical after, and in any event
within 10 days after, the receipt by the Trustee from the Loan
Trustee of a request by the Company to sell an Owned or
Controlled Aircraft as required pursuant to the Leases and the
Indentures upon the occurrence of a Sale Trigger Event for a
cash bid realizing net cash proceeds of less than the Minimum
Sales Price, the Trustee shall transmit by mail to the
Certificateholders holding Certificates in accordance with
Section 313(c) of the Trust Indenture Act, a copy of such
request. The Trustee shall follow the Direction of a majority
in interest of the Fractional Undivided Interests of the
Certificates with respect to such request. The Trustee shall
not take any action with respect to such request unless and
until it receives such a Direction.
(iii) As promptly as practical after, and in any event
within 10 days after, the receipt by the Trustee of any report
from the Loan Trustee regarding Consolidated Adjusted EBITDA
pursuant to the Leases or the Indentures, the Trustee shall
transmit by mail to the Certificateholders holding
Certificates in accordance with Section 313(c) of the Trust
Indenture Act, a copy of such report.
(iv) As promptly as practical after, and in any event
within 10 days after, the receipt by the Trustee from the Loan
Trustee of a request by the Company to amend, supplement or
waive any of the provisions of the Maintenance Contracts or
enter into any additional Maintenance Contracts in replacement
(whether in partial replacement or complete replacement) of
the Maintenance Contracts pursuant to the Leases or the
Indentures, the Trustee shall transmit by mail to the
Certificateholders in accordance with Section 313(c) of the
Trust Indenture Act, a copy of such request. The Trustee shall
follow the Direction of a majority in interest of the
Fractional Undivided Interests of the Certificates with
respect to such request.
2
(v) As promptly as practical, and in any event within 10
days after, the receipt by the Trustee of any information,
report or certificate obtained by the Consultant pursuant to
the Leases or the Indentures, the Trustee shall transmit by
mail to the Certificateholders in accordance with Section
313(c) of the Trust Indenture Act, a copy of any such
information, report or certificate.
(vi) The Trustee shall follow the Direction of a
majority in interest of the Fractional Undivided Interests of
the Certificates with respect to the designation of any
Special Inspector and with respect to any inspection pursuant
to the Leases or the Indentures. As promptly as practical
after, and in any event within 10 days after, the receipt by
the Trustee of copies of any Aircraft Documents, results of
any inspection or any other information obtained by the
Special Inspector pursuant to the Leases or the Indentures,
the Trustee shall transmit by mail to the Certificateholders
in accordance with Section 313(c) of the Trust Indenture Act,
copies of any such Aircraft Documents, results of inspection
or other information.
(vii) As promptly as practical after, and in any event
within 10 days after, the receipt by the Trustee from the Loan
Trustee of a request by the Company to replace a Maintenance
Contractor pursuant to the Leases or the Indentures, the
Trustee shall transmit by mail to the Certificateholders in
accordance with Section 313(c) of the Trust Indenture Act, a
copy of such request and a copy of any proposed contract and
assignment with respect thereto. The Trustee shall follow the
Direction of a majority in interest of Fractional Undivided
Interests of the Certificates with respect to such request,
contract and assignment. The Trustee shall not take any action
with respect to such request, contract or assignment unless
and until it receives such a Direction.
(viii) The Trustee shall follow the Direction of a
majority in interest of Fractional Undivided Interests of the
Certificates with respect to any choice and designation of a
Consultant or a Special Inspector pursuant to the Leases or
the Indentures. The Trustee shall not take any action with
respect to any such choice or designation unless and until it
receives such a Direction.
3. MISCELLANEOUS.
(a) The Trustee accepts the trusts created by the Trust Agreement, as
supplemented by this Trust Supplement, and agrees to perform the
same upon the terms and conditions of the Trust Agreement, as
supplemented by this Trust Supplement.
(b) Except as expressly provided in this Trust Supplement, the Trust
Agreement shall remain in full force and effect, without
modification or amendment.
3
(c) This Trust Supplement shall be binding upon, and shall inure to the
benefit of, the parties hereto and the successors and assigns of
each of the parties hereto.
(d) This Trust Supplement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(e) This Trust Supplement may be executed in two counterparts and by the
parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and
the same instrument. A facsimile of an executed counterpart shall
have the same effect as the original executed counterpart.
4. EFFECTIVENESS.
This Trust Supplement shall take effect on the Effective Date (as defined
in the Restructure Agreements).
[Remainder of page intentionally blank. Next page is signature page.]
4
IN WITNESS WHEREOF, the parties hereto have caused this Trust Supplement
to be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
ATLAS AIR, INC.
By: /s/ William C. Bradley
----------------------------------------
Name: William C. Bradley
Title: Vice President & Treasurer
WILMINGTON TRUST COMPANY,
AS TRUSTEE
By:
----------------------------------------
Name:
Title:
1998 CLASS A PASS THROUGH TRUST SUPPLEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Trust Supplement
to be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
ATLAS AIR, INC.
By:
----------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
AS TRUSTEE
By: /s/ Anita E. Dallago
----------------------------------------
Name: Anita E. Dallago
Title: Senior Financial Services Officer
1998 CLASS A PASS THROUGH TRUST SUPPLEMENT