SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental
Indenture") dated as of January 21, 2004, among ATA Holdings
Corp. (formerly known as Amtran, Inc.), an Indiana corporation,
(the "Company"), ATA Airlines, Inc. (formerly known as American
Trans Air, Inc.), Ambassadair Travel Club, Inc., ATA Leisure
Corp. (formerly known as ATA Vacations, Inc.), Amber Travel,
Inc., American Trans Air Training Corporation, American Trans Air
Execujet, Inc., each an Indiana corporation, ATA Cargo, Inc.
(formerly known as Amber Air Freight Corporation), a California
corporation (the "Original Guarantors"), and Chicago Express
Airlines, Inc., a Georgia corporation, ("Chicago Express" and
together with the Original Guarantors, the "Guarantors"), as
guarantors and Wells Fargo Bank Northwest, National Association,
a national banking association, as trustee (the "Trustee").
WHEREAS each of the Company, the Original Guarantors and the Trustee
have heretofore executed and delivered to the Trustee an Indenture and a First
Supplemental Indenture, each dated as of December 11, 1998 (collectively, the
"Original Indenture" and, as supplemented hereby, the "Indenture"), providing
for the issuance of the Company's 9 5/8% Senior Notes due 2005 (the "Notes");
WHEREAS Section 9.01(5) of the Original Indenture provides that
without notice to or the consent of any Holders, the Company and the Guarantors,
when authorized by a resolution of their Board of Directors, and the Trustee may
amend or supplement the Original Indenture to make any change that adds to the
rights of the Holders and does not adversely affect the rights of any Holder in
any material respect;
WHEREAS the purpose of this Second Supplemental Indenture is to cause
Chicago Express to provide a Subsidiary Guarantee of the Notes containing the
same provisions as those contemplated by Article XIII of the Original Indenture;
and
WHEREAS the Company has requested that the Trustee execute and deliver
this Second Supplemental Indenture and all requirements necessary to make this
Second Supplemental Indenture a valid instrument in accordance with its terms,
and the execution and delivery of this Second Supplemental Indenture have been
duly authorized in all respects.
NOW THEREFORE, the Company, the Guarantors and the Trustee hereby
agree that the following Sections of this Second Supplemental Indenture
supplement and amend the Original Indenture.
SECTION 1. Definitions. (a) Capitalized terms used herein and not
defined herein have the meanings ascribed to such terms in the Original
Indenture.
(b) Article I of the Indenture is hereby amended by deleting the
definition of the defined term "Guarantors" and inserting in its place the
following definition:
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"Guarantors" means ATA Airlines, Inc. (formerly known as American
Trans Air, Inc.), Ambassadair Travel Club, Inc., ATA Leisure Corp. (formerly
known as ATA Vacations, Inc.), Amber Travel, Inc., American Trans Air Training
Corporation, American Trans Air Execujet, Inc., each, an Indiana corporation,
ATA Cargo, Inc. (formerly known as Amber Air Freight Corporation), a California
corporation, and Chicago Express Airlines, Inc., a Georgia corporation, until a
successor replaces any Guarantor pursuant to Article Five of the Indenture and
thereafter means the successor of such Guarantor, and any Restricted Subsidiary
that executes a Subsidiary Guarantee.
SECTION 2. Subsidiary Guarantee. (a) Pursuant to Section 10.09 of the
Original Indenture, Chicago Express, a Restricted Subsidiary of the Company,
hereby provides a Subsidiary Guarantee of payment of the Notes as set forth
below.
SECTION 3. (a) Subject to the provisions of this Section 3, Chicago
Express, as primary obligor and not merely as surety, hereby fully,
unconditionally and irrevocably guarantees on a senior basis to each Holder and
to the Trustee on behalf of the Holders (a "Subsidiary Guarantee"): (i) the due
and punctual payment of the principal of, premium, if any, on and interest on
each Note, when and as the same shall become due and payable, whether, by
acceleration, required repurchase (including by reason of Change of Control),
call for redemption or otherwise, the due and punctual payment of interest on
the overdue principal of and interest, if any, on the Notes, to the extent
lawful (in each case including interest accruing on or after filing of any
petition in bankruptcy or reorganization relating to the Company or any
Guarantor, whether or not a claim for post filing interest is allowed in such
proceeding), and the due and punctual performance of all other obligations of
the Company to the Holders or the Trustee, all in accordance with the terms of
such Note and the Original Indenture and (ii) in the case of any extension of
time of payment or renewal of any Note or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, at Stated Maturity, by acceleration,
required repurchase (including by reason of Change of Control), call for
redemption or otherwise. Chicago Express hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger or
bankruptcy of the Company, any right to require a proceeding first against the
Company, the benefit of discussion, protest or notice with respect to any such
Note or the debt evidenced thereby and all demands whatsoever, and covenants
that this Subsidiary Guarantee will not be discharged as to any such Note except
by payment in full of the principal thereof and interest thereon and as provided
in Section 4.01 and Section 4.02 (subject to Section 4.06) of the Original
Indenture. The obligations of Chicago Express hereunder shall not be affected by
any failure or delay of the Trustee to exercise any right or remedy under this
Second Supplemental Indenture, the Original Indenture, the Notes or this
Subsidiary Guarantee. The maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five of the Original Indenture for the
purposes of this Section 3. In the event of any declaration of acceleration of
such obligations as provided in Article Five of the Original Indenture, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Section 3. In addition,
without limiting the foregoing provisions, upon the effectiveness of an
acceleration under Article Five of the Original Indenture, the Trustee
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shall promptly make a demand for payment on the Notes under the Subsidiary
Guarantee provided for in this Section 3.
(b) The Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant portion of the Company's assets, and if the
Trustee or the Holder of any Note is required by any court or otherwise to
return to the Company or any Guarantor, or any custodian, receiver, liquidator,
trustee, sequestrator or other similar official acting in relation to the
Company or the Guarantors, any amount paid to the Trustee or such Holder in
respect of a Note, this Subsidiary Guarantee, to the extent theretofore
discharged, shall continue to be effective or be reinstated in full force and
effect, as the case may be, all as though such payment has not been made.
Chicago Express further agrees, to the fullest extent that it may lawfully do
so, that, as between the Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article Five of the Original Indenture for the
purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or
other prohibition extant under any applicable bankruptcy law preventing such
acceleration in respect of the obligations Guaranteed hereby.
Chicago Express hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of its obligations under this
Subsidiary Guarantee and the Original Indenture, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of the Holders
against the Company or any collateral which any such Holder or the Trustee on
behalf of such Holder hereafter acquires, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights until such time as
the Notes and all of the Company's other obligations being guaranteed hereby
shall have been indefeasibly paid in full. If any amount shall be paid to the
Guarantors in violation of the preceding sentence and the principal of, premium,
if any, and accrued interest on the Notes shall not have been paid in full, such
amount shall be deemed to have been paid to the Guarantors for the benefit of,
and held in trust for the benefit of, the Holders, and shall forthwith be paid
to the Trustee for the benefit of the Holders to be credited and applied upon
the principal of, premium, if any, and accrued interest on the Notes. Each of
the Guarantors acknowledges that it will receive direct and indirect benefits
from the issuance of the Notes pursuant to the Original Indenture and that the
waivers set forth in this Section 3 are knowingly made in contemplation of such
benefits.
The Subsidiary Guarantee set forth in this Section 3 shall not be
valid or become obligatory for any purpose with respect to a Note until the
certificate of authentication on such Note shall have been signed by or on
behalf of the Trustee.
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(c) Subject to Section 3(f), nothing contained in this Section 3 or
elsewhere in the Indenture or in the Notes is intended to or shall impair, as
among any Guarantor and the Holders, the obligation of such Guarantor, which is
absolute, unconditional and irrevocable, upon failure by the Company, to pay to
the Holders the principal of, premium, if any, and interest on the Notes as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
such Guarantor, nor shall anything herein or therein prevent the Holder of any
Note or the Trustee on their behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture.
Without limiting the foregoing, nothing contained in this Section 3
will restrict the right of the Trustee or the Holders to take any action to
declare the Subsidiary Guarantee to be due and payable prior to the Stated
Maturity of the Notes pursuant to Section 5.02 of the Original Indenture or to
pursue any rights or remedies hereunder.
(d) Chicago Express shall give prompt written notice to the Trustee of
any fact known to it which would prohibit the making of any payment to or by the
Trustee in respect of the Subsidiary Guarantee pursuant to the provisions of
this Section 3.
(e) The failure to make a payment on account of principal of, premium,
if any, or interest on the Notes by reason of any provision of this Section 3
will not be construed as preventing the occurrence of an Event of Default.
(f) Notwithstanding any other provision of the Indenture or the Notes,
the Subsidiary Guarantee shall not be enforceable against Chicago Express in an
amount in excess of the net worth of Chicago Express at the time that
determination of such net worth is, under applicable law, relevant to the
enforceability of the Subsidiary Guarantee. Such net worth shall include any
claim of any Subsidiary against the Company for reimbursement and any claim
against any grantor of a Subsidiary Guarantee or Note Guarantee for
contribution.
(g) Notwithstanding any other provision of the Indenture or the Notes,
this Subsidiary Guarantee shall be automatically and unconditionally released
and discharged upon (i) any sale, exchange or transfer, to any Person not an
Affiliate of the Company, of all of the Company's and each Restricted
Subsidiary's Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary (which sale, exchange or transfer is not prohibited by the
Indenture) or (ii) the release or discharge of the Guarantee which resulted in
the creation of this Subsidiary Guarantee, except a discharge or release by or
as a result of payment under such Guarantee.
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SECTION 4. This Second Supplemental Indenture. This Second
Supplemental Indenture shall be construed as supplemental to the Original
Indenture and shall form a part of it, and the Original Indenture is hereby
incorporated by reference herein and each is hereby ratified, approved and
confirmed.
SECTION 5. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Second Supplemental Indenture may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute but one
instrument.
SECTION 7. Headings. The headings of this Second Supplemental
Indenture are for reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 8. Trustee Not Responsible for Recitals. The recitals herein
contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Second Supplemental Indenture.
SECTION 9. Separability. In case any one or more of the provisions
contained in this Second Supplemental Indenture shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Second
Supplemental Indenture, but this Second Supplemental Indenture shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed by their respective authorized
officers as of the date first written above.
ATA HOLDINGS CORP.,
By /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President
& CFO
ATA AIRLINES, INC.
By /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President
& CFO
AMBASSADAIR TRAVEL CLUB, INC.,
as Guarantor,
By /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President
& CFO
ATA LEISURE CORP.,
as Guarantor,
By /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President
& CFO
AMBER TRAVEL, INC.,
As Guarantor,
By /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President
& CFO
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AMERICAN TRANS AIR TRAINING CORPORATION,
As Guarantor,
By /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President
& CFO
AMERICAN TRANS AIR EXECUJET, INC.,
as Guarantor,
By /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President
& CFO
ATA CARGO, INC.,
as Guarantor,
By /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President
& CFO
CHICAGO EXPRESS AIRLINES, INC.,
as Guarantor,
By /s/ George Mikelsons
----------------------------------
Name: J. George Mikelsons
Title: Chairman, President & CEO
WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, as Trustee,
By /s/ Michael Hoggan
----------------------------------
Name: Michael D. Hoggan
Title: Vice President