EXECUTION COPY
PURCHASE AND INVESTOR RIGHTS AGREEMENT dated as of December 13, 2000,
between AMTRAN, INC., an Indiana corporation ("Amtran") and BOEING CAPITAL
CORPORATION ("BCC"), a Delaware corporation.
WHEREAS, on May 4, 2000, Amtran's wholly owned subsidiary,
American Trans Air, Inc. ("ATA"), and BCC entered into a binding commitment
letter (the "Commitment Letter") whereby BCC agreed to provide certain financing
to ATA (the "Financing Arrangements") in connection with the sale of aircraft by
The Boeing Company to ATA;
WHEREAS, pursuant to the Commitment Letter, BCC and ATA
agreed, among other things, that in connection with the Financing Arrangements,
Amtran may, at its option, issue shares of Preferred Stock to BCC, the terms of
which are set forth in Annex A hereto (the "Preferred Stock"); and
WHEREAS, the shares of Preferred Stock to be issued to BCC
will be issued in series and may be issued in multiple series each of which will
have identical terms other than the Dividend Rate (as defined in Annex A),
redemption dates and related matters.
NOW THEREFORE, pursuant to the mutual agreements and premises
set forth herein, the parties agree as follows:
1. Issuance and Sale of Preferred Stock. Amtran agrees to
issue and sell to BCC up to an aggregate of 500 shares of Preferred Stock having
an aggregate amount payable upon liquidation (the "Liquidation Amount") of up to
$50 million. The Preferred Stock will have a per share Liquidation Amount of
$100,000 and will be issued in increments of $2 million in Liquidation Amount at
each time of delivery of the aircraft as set forth in Schedule I hereto;
provided, however, that in accordance with the terms of the Financing
Arrangements, Amtran, ATA and BCC have agreed that if prior to the delivery of
the first aircraft, ATA pre-pays the deferred portion of the pre-delivery
payment with respect to the aircraft equivalent to up to $50 million, then BCC
shall purchase the number of shares of Preferred Stock having an aggregate
Liquidation Amount equal to the amount of such pre-payment. The aggregate
Liquidation Amount of the shares of Preferred Stock that BCC shall be obligated
to purchase hereunder in connection with the delivery of aircraft and any
pre-payments of the deferred purchase price for such aircraft shall not exceed
$50 million. Each delivery date of shares of Preferred Stock in accordance with
the terms of this Agreement is referred to herein as a "Closing Date".
If Amtran elects to deliver Preferred Stock at the time of
delivery of any aircraft, Amtran shall provide BCC with written notice of its
intention to do no later than three business days prior to the date of such
delivery.
Payment of the purchase price for the series of Preferred
Stock to be issued on each Closing Date shall be made by wire transfer to the
account specified by Amtran in immediately available funds. Delivery of the
certificates for the shares against such payment shall be made at the office of
Cravath, Swaine & Moore at 10:00 a.m. (New York time) (each a "Closing").
2. Representations and Warranties of Amtran. At each Closing
Amtran represents and warrants to, and agrees with BCC that:
(a) Corporate Organization. Amtran has been duly incorporated and is an
existing corporation in good standing under the laws of the State of Indiana,
with power and authority (corporate and other) to own its properties and conduct
its business as presently conducted. Each of Amtran's subsidiaries listed on
Schedule II hereto (each a "Material Subsidiary" and together, the "Material
Subsidiaries") has been duly incorporated and is an existing corporation in good
standing under the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and conduct its business
as presently conducted. Amtran and each of its Material Subsidiaries is duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification except where the failure to be so qualified
would not have a material adverse effect on its business and properties.
(b) Corporate Power. Amtran has all requisite corporate power
and authority to execute and deliver this Agreement and the Exchange
Notes, to adopt the Articles of Amendment to the Articles of
Incorporation substantially in the form attached hereto in Annex A (the
"Series A Designation") in respect of each series of Preferred Stock,
to issue and sell the Preferred Stock issuable hereunder, to issue the
Exchange Notes issuable upon exchange of the Preferred Stock, and to
carry out and perform Amtran's obligations under the terms of this
Agreement.
(c) Authorization of Preferred Stock. At each Closing, the
series of Preferred Stock to be issued at such Closing will be duly
authorized by Amtran and when issued and delivered by Amtran in
accordance with the terms hereof and paid for pursuant to this
Agreement on the applicable Closing Date, will be validly issued, fully
paid and non-assessable shares of Preferred Stock with no personal
liability attaching to the ownership thereof and will be free and clear
of all liens, charges, restrictions, claims and encumbrances imposed by
or through Amtran except as set forth in the Articles of Incorporation,
as amended, the Bylaws and this Agreement. The issuance, sale or
delivery of the Preferred Stock is not subject to any preemptive right
of stockholders of Amtran or to any right of first refusal or other
right in favor of any person.
(d) Authorization of Exchange Notes. The subordinated notes of
Amtran, the terms of which are set forth in Annex B hereto, which may
be issued in exchange for the Preferred Stock in accordance with the
terms of the Preferred Stock (the "Exchange Notes"), have been duly
authorized by Amtran and when and if issued, executed, authenticated
and delivered, will constitute legal, valid and binding unsecured and
subordinated obligations of Amtran enforceable in accordance with their
terms (subject to applicable bankruptcy, receivership, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect).
(e) This Agreement. The execution and delivery of this
Agreement and the performance of the transactions contemplated hereby
have been duly authorized and this Agreement has been duly executed and
delivered by Amtran and is enforceable in accordance with its terms
(subject to applicable bankruptcy, receivership, insolvency, fraudulent
transfer, reorganization, moratorium or other laws affecting creditors'
rights generally from time to time in effect).
(f) Exempt Securities. Assuming the representations and
warranties of BCC are true and correct, the offer and sale of the
Preferred Stock in the manner contemplated by this Agreement will be
exempt from the registration requirements of the Securities Act of
1933, as amended (the "Securities Act") by reason of Section 4(2)
thereof.
(g) Subsidiaries. Except as set forth in the Schedule of
Exceptions, Amtran owns, either directly or indirectly, all of the
outstanding shares of capital stock of the Material Subsidiaries free
and clear of any claim, lien or encumbrance. All of the issued and
outstanding shares of capital stock of the Material Subsidiaries are
validly issued, fully paid and non-assessable. Except as set forth in
the Schedule of Exceptions, there are outstanding no securities
convertible into, exchangeable for, or carrying the right to acquire,
equity securities of any of the Material Subsidiaries, or
subscriptions, warrants, options, rights or other arrangements or
commitments obligating any Material Subsidiary to issue or acquire any
of its equity securities or any ownership interest therein.
(h) Capitalization. The authorized capital stock of Amtran consists of the
following:
(i) 30,000,000 shares of Common Stock without par
value (the "Common Stock"), 13,076,674 of which are issued and
outstanding as of the date hereof.
(ii) 10,000,000 shares of preferred stock, without
par value, 300 of which are outstanding as of the date hereof
(other than the 500 shares of Preferred Stock to be issued
hereunder).
(iii) Except for the rights granted in this
Agreement, as of the date hereof there are outstanding no
subscriptions, options, calls, warrants, conversion
privileges, preemptive rights, rights of first refusal or
other similar commitments or rights to which Amtran is a party
or by which Amtran is bound, with respect to the purchase or
other acquisition of any of the authorized but unissued
capital stock of Amtran other than the 1993, 1996 and 2000
Incentive Stock Plans for Key Employees and the 300 shares of
previously issued preferred stock referenced in Section
2(h)(ii) above.
(i) No Breach. The execution and delivery by Amtran of this
Agreement and when and if issued, the Exchange Notes, and the
consummation by Amtran of the transactions contemplated hereby and
thereby, including but not limited to the offering, issuance and sale
of the Preferred Stock pursuant to this Agreement, do not and will not
(with or without due notice, lapse of time, or both) (i) conflict with
or result in a breach of any of the terms, conditions or provisions of,
(ii) constitute a default under, (iii) result in the creation of any
lien, security interest, charge or encumbrance upon the capital stock
or assets of Amtran or any of its Material Subsidiaries pursuant to,
(iv) give any third party the right to accelerate any obligation under,
or terminate any right of Amtran or any of its Material Subsidiaries
under, (v) result in a violation of, or (vi) require any authorization,
consent, qualification, approval, exemption, filing or other action by
or notice to any court or administrative or governmental body or any
other person or entity (other than (A) the filing of the Series A
Designation with the Secretary of State of the State of Indiana in
respect of each series of Preferred Stock to be issued and (B) filings
pursuant to applicable state securities laws and Regulation D of the
Securities Act) pursuant to, any of (x) the Articles of Incorporation,
as amended, or Bylaws of Amtran, (y) any law, statute, rule,
regulation, instrument, order, judgment or decree to which Amtran or
any of its Material Subsidiaries, or any of their properties is
subject, or (z) any contract, evidence of indebtedness, permit,
license, agreement or instrument to which Amtran or any of its Material
Subsidiaries is a party or to which any of their properties is subject.
(j) Financial Information. Amtran's audited consolidated
balance sheet for its most-recent fiscal year, included in Amtran's
most-recent Annual Report on Form 10-K filed by Amtran with the
Securities and Exchange Commission (the "Commission"), and the related
consolidated statements of operations and cash flows for the period
then ended, have been prepared in accordance with GAAP and fairly
present in all material respects the financial condition of Amtran and
its consolidated subsidiaries as of such date and the results of its
operations and cash flows for such period.
(k) Absence of Certain Changes. Since December 31, 1999,
except as disclosed in the Schedule of Exceptions and in Amtran's
Quarterly Report on Form 10-Q for the three months ended September 30,
2000 or any Current Report on Form 8-K filed with the Commission
subsequent to March 30, 2000 and prior to the date of this Agreement,
there has not been any event or condition of any character that has
had, or is likely to have, individually or together with any other such
events or conditions, a material adverse effect on the business,
operations, prospects, liabilities, capitalization or financial
condition of Amtran and its subsidiaries taken as a whole or Amtran's
ability to perform its obligations under this Agreement or, if and when
issued, the Exchange Notes (a "Material Adverse Effect").
(l) Disclosure. As of their respective filing dates, all
reports filed by Amtran (the "Amtran SEC Documents") pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), complied in all material respects with the
requirements of the Exchange Act and did not at the time they were
filed contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to
make the statements made therein, in light of the circumstances under
which they were made, not misleading.
(m) Certified Air Carrier. ATA is an "air carrier" within the
meaning of the Transportation Code that is a "citizen of the United
States" within the meaning of the Transportation Code and holds both a
certificate under Section 41102(a)(1) of the Transportation Code and an
air carrier operating certificate issued pursuant to Chapter 447 under
the Transportation Code for aircraft capable of carrying ten or more
individuals or 6,000 pounds or more of cargo. "Transportation Code"
means Subtitle VII of Title 49 of the United States Code, as in effect
on the date hereof and as modified or amended thereafter, or any
successor or substituted legislation at the titre in effect and
applicable.
(n) Compliance with Law. Amtran is not in violation of any
term of its Articles of Incorporation, as amended, or Bylaws or of the
provisions of any mortgage, indenture, contract, agreement, instrument,
certificate, permit, judgment, decree, order, statute, rule or
regulation to which it is subject and a violation of which could create
a Material Adverse Effect. Amtran has all material certificates,
permits, licenses and approvals, necessary to conduct its business as
currently conducted.
3. Representations and Warranties of BCC. At each
Closing BCC represents and warrants to and agrees with Amtran that:
(a) Corporate Organization. BCC has been duly incorporated and
is an existing corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as presently conducted.
(b) This Agreement. This Agreement has been duly authorized,
executed and delivered by BCC and is enforceable in accordance with its
terms (subject to applicable bankruptcy, receivership, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect).
(c) No Breach. The execution and delivery by BCC of this
Agreement, the purchase of the Exchange Notes, if issued, and the
consummation by BCC of the transactions contemplated hereby and
thereby, including but not limited to the purchase of the Preferred
Stock pursuant to this Agreement, do not and will not (with or without
due notice, lapse of time, or both) (i) conflict with or result in a
breach of any of the terms, conditions or provisions of, (ii)
constitute a default under, (iii) give any third party the right to
accelerate any obligation under, or terminate any right of BCC or any
of its subsidiaries under, (iv) result in a violation of, or (v)
require any authorization, consent, qualification, approval, exemption,
filing or other action by or notice to any court or administrative or
governmental body or any other person or entity (other than filings
pursuant to applicable state securities laws and Regulation D of the
Securities Act) pursuant to, any of (x) the Certificate of
Incorporation of BCC, as amended, or its Bylaws or (y) any law,
statute, rule, regulation, instrument, order, judgment or decree to
which BCC or any of its subsidiaries, or any of their properties is
subject.
(d) Exempt Securities. BCC understands that neither the
Preferred Stock nor the Exchange Notes has been registered under the
Securities Act. BCC also understands that the Preferred Stock is being
offered and sold pursuant to an exemption from registration contained
in the Securities Act based in part upon BCC's representations
contained in this Agreement and that the Exchange Notes, if issued, may
be issued in reliance upon the same exemption.
(e) Accredited Investor. BCC represents that it is an accredited investor
within the meaning of Regulation D under the Securities Act.
(f) No Distribution. BCC is acquiring the shares of Preferred Stock for its
own account for investment only, and not with a view towards their distribution.
(g) Investment Experience. BCC represents that it has
substantial experience in evaluating and investing in private placement
transactions of securities in companies similar to Amtran so that it is
capable of evaluating the merits and risks of its investment in Amtran
and by reason of its management's business and financial experience, it
has the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement. BCC understands that it
must bear the economic risk of this investment indefinitely unless the
Preferred Stock or any Exchange Notes issued in exchange therefor are
registered pursuant to the Securities Act, or an exemption from
registration is available. BCC also understands that Amtran has no
present intention of registering the Preferred Stock or any Exchange
Notes issued in exchange therefor. BCC also understands that there is
no assurance that any exemption from registration under the Securities
Act will be available and that, even if available, such exemption may
not allow BCC to transfer all or any portion of the Preferred Stock or
any Exchange Notes issued in exchange therefor under the circumstances,
in the amounts or at the times BCC might propose.
(h) Information Provided. BCC acknowledges that Amtran has
provided to it, or made available for its inspection, all information
requested by it. BCC has had an opportunity to discuss Amtran's
business, management and financial affairs with directors, officers and
management of Amtran and has had the opportunity to review Amtran's
operations and facilities. BCC has also had the opportunity to ask
questions of and receive answers from, Amtran and its management
regarding the terms and conditions of this investment.
(i) Securities Act Legend. BCC acknowledges and agrees that the Preferred
Stock will, and the Exchange Notes may, contain a restrictive legend
substantially to the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
BY THE HOLDER SOLELY FOR ITS OWN ACCOUNT FOR THE PURPOSE OF
INVESTMENT AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION
WITH ANY DISTRIBUTION THEREOF IN VIOLATION OF THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS AND, UNLESS
REGISTERED, MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO
AN EXEMPTION THEREFROM."
(j) Additional Legend. BCC acknowledges and agrees that the Preferred Stock
and the Exchange Notes will also contain a restrictive legend substantially to
the following effect:
"These securities are subject to a Purchase and Investor
Rights Agreement dated as of December 13, 2000, between
Amtran, Inc. and Boeing Capital Corporation and may not be
transferred except in accordance with the terms of such
Agreement."
4. (A) Conditions to Closing. The obligations of BCC to
purchase the Preferred Stock at each Closing are subject to the fulfillment on
or prior to such Closing Date of the following conditions:
(a) Representations and Warranties Correct. The
representations and warranties made by Amtran in Section 3 hereof shall
be true and correct as of such Closing Date with the same force and
effect as if made on such date.
(b) Covenants. All covenants and agreements contained in this
Agreement to be performed or complied with by Amtran on or prior to
such Closing Date shall have been performed or complied with.
(c) Governmental Authorizations, etc. All material
governmental authorizations, consents or approvals required to be
obtained, and all governmental filings to be made by Amtran and its
Material Subsidiaries in connection with the issuance and sale of the
series of Preferred Stock to be issued on such Closing Date pursuant to
this Agreement (other than any such filings as shall be permitted by
applicable law to be made post-Closing) shall have been obtained or
made and shall be in full force and effect.
(d) Series A Designation. Amtran shall have filed with the
Secretary of State of the State of Indiana Articles of Amendment to the
Articles of Incorporation in respect of the series of Preferred Stock
to be issued on such Closing Date substantially in the form of the
Series A Designation and the same shall be effective. The initial
Articles of Amendment to the Articles of Incorporation filed pursuant
to this Agreement shall create Series A1 Preferred Stock. Each
subsequent filing of Articles of Amendment to the Articles of
Incorporation filed pursuant to this Agreement shall create a separate
series of Preferred Stock which shall be numbered successively as
Series A2 Preferred Stock, Series A3 Preferred Stock and so on.
(e) Good Standing Certificates. Each of Amtran and ATA shall
have delivered to BCC certificates dated as of the most recent
practicable date prior to such Closing Date issued by the Secretaries
of State of their respective States of incorporation to the effect that
Amtran and ATA is legally existing and in good standing in such State
and each other state in which Amtran or ATA is qualified or required to
be qualified to do business.
(f) Secretary's Certificate. Amtran shall have delivered to
BCC a certificate executed by the Secretary of Amtran dated as of such
Closing Date, certifying as to the following matters: (a) resolutions
adopted by the Board of Directors of Amtran approving the transactions
contemplated by this Agreement and the Exchange Notes, (b) the Series A
Designation in respect of the series of Preferred Stock to be issued on
such Closing Date and (c) the Bylaws.
(g) Opinion of Counsel. Amtran shall have delivered to BCC
opinions of Cravath, Swaine & Moore, counsel to Amtran and Brian Hunt,
Esq., General Counsel of Amtran, in form reasonable satisfactory to BCC
and its counsel to the substantive effect as set forth in Exhibit A
hereto.
(h) Compliance Certificate. Amtran shall have delivered to BCC
a certificate of Amtran executed by the President or a Vice President
of Amtran, dated such Closing Date, and certifying as to the
fulfillment of the conditions specified in paragraphs (a), (b) and (c)
of this Section 4(A).
(B) Covenant Regarding Series A Designation. Amtran hereby
covenants and agrees to file with the Secretary of State of the State of Indiana
prior to each Closing Date Articles of Amendment to the Articles of
Incorporation in respect of the series of Preferred Stock to be issued on the
Closing Date substantially in the form of the Series A Designation.
5. Other Agreements of the Parties. Amtran and BCC agree that
the Preferred Stock will rank with respect to the payment of dividends and
distributions upon any liquidation of Amtran, equally with any other series of
preferred stock that have been issued to an equipment lessor, including any
shares that may be issued to International Lease Finance Corporation or any
affiliate thereof. Amtran agrees that the Preferred Stock as an equity security
will rank junior to all indebtedness and other liabilities due to Amtran's
general creditors.
6. Prohibitions on Transfer; Amtran's Right of First Refusal.
(a) BCC shall not be permitted to transfer any shares of Preferred Stock or any
Exchange Notes except in accordance with the provisions of this Section 6.
Notwithstanding the foregoing, at any time, BCC may transfer the shares of
Preferred Stock or any Exchange Notes held by it to an affiliate thereof that
expressly agrees in writing to be bound by the terms of this Agreement; provided
that BCC shall not be released from its obligations under the Financing
Arrangements or any other obligations set forth in this Agreement. For purposes
of this Section "affiliate" means any person controlling, controlled by or under
common control with BCC.
(b) If BCC receives from any party other than an affiliate of,
or person acting in concert with, BCC (a "Third Party Offeror"), an
offer to purchase any shares of Preferred Stock or Exchange Notes held
by it (a "Third Party Offer"), prior to transferring any such shares of
Preferred Stock or Exchange Notes to such Third Party Offeror, BCC must
first provide notice to Amtran (the "Offer Notice") of such Third Party
Offer setting forth in reasonable detail:
(A) the name and business background of the Third Party Offeror;
(B) the number of shares of Preferred Stock or Exchange Notes
subject to the Third Party Offer and the prospective purchase
price for such shares of Preferred Stock or Exchange Notes;
(C) the type of consideration offered, if all or a portion of the
consideration will be paid other than in cash and the relative
proportions of such consideration; and
(D) all other material terms and conditions of the Third Party
Offer;
(c) The delivery of the Offer Notice to Amtran shall
constitute BCC's offer to sell to Amtran all, but not less than all of
the number of shares of Preferred Stock set forth in the Offer Notice
upon the terms set forth therein. Amtran shall have ten business days
after delivery of the Offer Notice (the "Offer Period") to accept the
offer set forth therein on such terms and conditions no less favorable
to Amtran than those offered to the Third Party Offeror (the "Right of
First Refusal"). For purposes of this Agreement "business day" shall
mean any day that is not a Saturday or Sunday or other day on which
banking institutions in the city of New York or the city of
Indianapolis are authorized or required by law or executive order to be
closed. If the Offer Notice provides that all or a portion of the
consideration shall consist of any debt obligation of the Third Party
Offeror or any affiliate thereof, Amtran shall be entitled to provide a
note for the equivalent portion of the non-cash consideration on the
same terms as the debt obligation included in the non-cash
consideration described in the Third Party Offer. If the Offer Notice
provides that all or a portion of the consideration shall be in the
form of non-cash consideration other than a debt obligation of the
Third Party Offeror or an affiliate thereof (in which case the
provisions of the previous sentence shall apply to such portion of the
non-cash consideration consisting of a debt obligation), Amtran shall
pay cash for such non-cash portion of the consideration (the "Cash
Equivalent Amount"). The Cash Equivalent Amount shall equal the fair
market value of such non-cash consideration as determined by an
independent third party mutually selected by Amtran and BCC. The
determination of the fair market value of the Cash Equivalent Amount by
the independent third party shall be conclusive for all purposes under
this Section 6. Any delay in (i) the selection of a mutually acceptable
independent third party or (ii) the delivery of the determination of
the fair market value of the Cash Equivalent Amount by such independent
third party shall not result in or be the basis for an extension of the
Offer Period.
(d) To accept the offer, Amtran shall deliver to BCC, prior to
the expiration of the Offer Period, a written notice indicating its
agreement to the terms set forth in the Offer Notice. Upon delivery,
such acceptance shall constitute a binding commitment of Amtran to
purchase all the shares of Preferred Stock that were the subject of the
Offer Notice. If Amtran accepts the offer and elects to exercise its
Right of First Refusal, the closing for the purchase of the shares
shall occur not less than ten nor more than 30 days following the date
on which Amtran accepts the offer pursuant to the provisions of this
Section 6; provided that, notwithstanding anything to the contrary, if
the determination of the fair market value of the Cash Equivalent
Amount by the independent third party has not been received by the
parties by such closing date, the closing for the purchase of the
shares of Preferred Stock shall be postponed until five days following
the receipt by Amtran of such determination of the Cash Equivalent
Amount by such independent third party.
(e) If no acceptance is given by Amtran prior to the
expiration of the Offer Period, then BCC may sell the number of shares
of Preferred Stock set forth in the Offer Notice to the Third Party
Offeror identified in the Offer Notice upon terms and conditions no
more favorable to the Third Party Offeror than those set forth in such
Offer Notice, within 30 days from the expiration of the Offer Period
(in the case no acceptance was given).
If at the end of such 30-day period, BCC shall not have
completed the transfer to the Third Party Offeror, BCC shall no longer
be permitted to sell the shares of Preferred Stock that were the
subject of the Offer Notice without again fully complying with the
provisions of this Section 6.
7. Removal of Restrictive Legends. All shares of Preferred
Stock shall be issued with the restrictive legends set forth in Section 3(i) and
3(j) unless and until such legends are removed in accordance with the provisions
of this Section 7. Amtran shall not be required to issue, nor shall it be
required to instruct any transfer agent for the Preferred Stock to authenticate,
any shares of Preferred Stock without the legend set forth in Section 3(i)
unless it shall have received an opinion of its counsel reasonably satisfactory
to it that such legend is no longer required by the applicable provisions of the
Securities Act. Amtran shall not be required to issue, nor shall it be required
to instruct any transfer agent for the Preferred Stock to authenticate, any
shares of Preferred Stock without the legend set forth in Section 3(j) unless
the shares of Preferred Stock shall no longer be subject to the terms of this
Agreement.
8. Notices. All communications hereunder will be in writing and, if sent to
Amtran will be mailed, delivered or sent via facsimile and confirmed to American
Trans Air, Inc., 7337 West Washington Street, Indianapolis International
Airport, Indianapolis, Indiana, Facsimile: (317) 240-7091, Attention: General
Counsel, or, if sent to BCC, will be mailed, delivered or sent via facsimile and
confirmed to it at Boeing Capital Corporation, 3780 Kilroy Airport Way, Suite
750, Long Beach, CA 90806, Facsimile: (562) 997-3335, Attention: Vice
President-Tax and Legal.
9. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns,
and no other person will have any right or obligation hereunder.
10. Severability. If any provision of this Agreement is held
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
11. Counterparts. This Agreement may be executed in any number of
counterparts,each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
13. Termination. This Agreement shall terminate on June 30, 2001.
The parties hereby submit to the nonexclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us one of the counterparts hereof, whereupon it will
become a binding agreement in accordance with its terms.
AMTRAN, INC.
by
- --------------------
Name:
Title:
BOEING CAPITAL CORPORATION
by
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Name:
Title:
SCHEDULE I
SCHEDULE II
SCHEDULE III
SCHEDULE OF EXCEPTIONS
ANNEX A
Certificate of Amendment to Amtran's Certificate of Incorporation Setting Forth
the Terms of the Preferred
Stock
ANNEX B
Form of Exchange Note
EXHIBIT A
FORM OF OPINIONS