EXECUTION COPY
Registration Rights Agreement
Dated as of March 28, 2002
among
AMERICAN TRANS AIR, INC.,
AMTRAN, INC.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Trustee under
American Trans Air 2002-1A
Pass Through Trust
and
American Trans Air 2002-1B
Pass Through Trust
and
NYALA FUNDING LLC
and
PK AIRFINANCE US, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of March 28, 2002, among American Trans Air, Inc., an
Indiana corporation (the "Company"), Amtran, Inc., an Indiana corporation
("Amtran"), Wilmington Trust Company, not in its individual capacity but solely
as trustee under each of the Trusts (as defined below), and Nyala Funding LLC
and PK AirFinance US, Inc. (collectively, the "Investors").
This Agreement is made pursuant to (i) the Certificates
Purchase Agreement dated as of March 28, 2002 among the Company, Amtran, and
Nyala Funding LLC (the "Class A Certificates Purchase Agreement"), which
provides that the Trustee will issue and sell $111,716,000.00 principal amount
of the pass through certificates of the Class A Trust (as defined below) and
(ii) the Certificates Purchase Agreement dated as of March 28, 2002 among the
Company, Amtran, Inc. and PK AirFinance US, Inc. (the "Class B Certificates
Purchase Agreement") which provides that the Trustee will issue and sell
$31,131,000.00 principal amount of the pass through certificates of the Class B
Trust (as defined below) (the Class A Trust and Class B Trust together, the
"Trusts" (and each a "Trust") and such pass through certificates of the Trusts,
together, the "Initial Certificates"), in each case with Escrow Receipts (as
defined below) attached thereto. In order to induce the Investors to enter into
the Certificates Purchase Agreements, the Company and Amtran have agreed to
provide the Investors and their direct and indirect transferees the exchange and
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Certificates Purchase
Agreements.
The Company and Amtran have contemporaneously herewith entered
into two separate letter agreements (i) one with the Nyala Funding LLC and AIG
Financial Products Corp. providing for the purchase of an additional
$91,896,000.00 principal amount of the Class A Certificates (the "Additional
Class A Certificates") and (ii) one with PK AirFinance US, Inc. providing for
the purchase of an additional $26,904,000.00 principal amount of the Class B
Certificates (the "Additional Class B Certificates", and together with the
Additional Class A Certificates, the "Additional Certificates"), in each case on
October 15, 2002 or such other date mutually agreed to by the Company, Amtran,
Nyala Funding LLC and PK AirFinance US, Inc. Upon issuance, the Additional
Certificates shall be subject to the terms of this Agreement as set forth
herein.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
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"Additional Certificates" shall have the meaning set forth in
the preamble of this Agreement.
"Additional Class A Certificates" shall have the meaning set
forth in the preamble of this Agreement.
"Additional Class B Certificates" shall have the meaning set
forth in the preamble of this Agreement.
"Class A Certificates Purchase Agreement" shall have the
meaning set forth in the preamble of this Agreement.
"Class B Certificates Purchase Agreement" shall have the
meaning set forth in the preamble of this Agreement.
"Class A Trust" shall mean the American Trans Air 2002-1A Pass
Through Trust.
"Class B Trust" shall mean the American Trans Air 2002-1B Pass
Through Trust.
"Certificates Purchase Agreements" shall mean the Class A
Certificates Purchase Agreement and the Class B Certificates Purchase
Agreement.
"Closing Date" shall mean the Closing Date as defined in the
Certificates Purchase Agreements.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Deposit" shall have the meaning set forth in the Deposit
Agreements.
"Deposit Agreement" shall have the meaning set forth in the
Certificates Purchase Agreement related to such Trust.
"Equipment Notes" shall have the meaning set forth in the Pass
Through Trust Agreements for the Trusts.
"Escrow Receipts" shall, with respect to the pass through
certificates issued by each Trust, have the meaning set forth in the
Certificates Purchase Agreement related to such Trust.
"Exchange Certificates" shall mean the pass through
certificates issued under the Pass Through Trust Agreements and
otherwise containing terms identical in all material respects to the
Initial Certificates and Additional Certificates (except that, with
respect to the Exchange Certificates of each Trust, (i) interest
thereon shall accrue as set forth in Section 2(a) hereof, (ii) the
transfer restrictions thereon shall be eliminated, (iii) certain
provisions relating to an increase in the stated rate of interest
thereon shall be eliminated and (iv) such Exchange Certificates shall
initially be available only in book-entry form),
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to be offered to Holders of Initial Certificates and Additional
Certificates in exchange for Initial Certificates and Additional
Certificates pursuant to the Exchange Offer.
"Exchange Date" shall have the meaning set forth in Section
2(a)(ii) hereof.
"Exchange Offer" shall mean the exchange offer by Amtran and
the Company of Exchange Certificates for Registrable Certificates
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such
registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"Holder" shall mean the Investors, for so long as they own any
Registrable Certificates, and each of their successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Certificates under the Pass Through Trust Agreements;
provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holder" shall include Participating Broker-Dealers.
"Initial Certificates" shall have the meaning set forth in the
preamble of this Agreement.
"Investors" shall have the meaning set forth in the preamble
of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Certificates;
when indicated by context, the term "Majority Holders" shall mean the
Holders of a majority of the aggregate principal amount of outstanding
Registrable Certificates issued by each Trust; provided that whenever
the consent or approval of Holders of a specified percentage or
principal amount of Registrable Certificates is required hereunder,
Registrable Certificates held by Amtran, the Company or any of their
affiliates (as such term is defined in Rule 405 under the 1933 Act)
(other than the Investors or subsequent Holders of Registrable
Certificates if such subsequent Holders are deemed to be such
affiliates solely by reason of their holding of such Registrable
Certificates) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage or
amount.
"Participating Broker-Dealers" shall have the meaning set
forth in Section 4(a) hereof.
"Pass Through Trust Agreements" shall mean each of the Pass
Through Trust Agreements dated as of March 28, 2002 relating to the
Initial Certificates and the Additional Certificates among the Company,
Amtran, Inc. and the Trustee, as may be amended from time to time in
accordance with the terms thereof.
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"Person" shall mean an individual, partnership, limited
liability company, corporation, trust or unincorporated organization,
or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Certificates covered
by a Shelf Registration Statement, and by all other amendments and
supplements to such prospectus, and in each case including all
documents incorporated by reference therein.
"Registrable Certificates" shall mean the Initial Certificates
and the Additional Certificates; provided, however, that an Initial
Certificate or Additional Certificate shall cease to be a Registrable
Certificate (i) when a Registration Statement with respect to such
Initial Certificate or Additional Certificate shall have been declared
effective under the 1933 Act and such Initial Certificate or Additional
Certificate shall have been disposed of pursuant to such Registration
Statement, (ii) when such Initial Certificate or Additional Certificate
has been sold to the public pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the 1933 Act or may
then be sold to the public pursuant to paragraph (k) of Rule 144 (or
any similar provision then in force) by Holders other than "affiliates"
or former "affiliates" (as such term is defined in paragraph (a) of
Rule 144) of Amtran or the Company; (iii) when such Initial Certificate
or Additional Certificate shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by Amtran, the Company and the
Trustees with this Agreement, including without limitation: (i) all
SEC, stock exchange or National Association of Securities Dealers, Inc.
("NASD") registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state or other securities
or blue sky laws and compliance with the rules of the NASD (including
reasonable fees and disbursements of counsel for any underwriters or
Holders in connection with state or other securities or blue sky
qualification of any of the Exchange Certificates or Registrable
Certificates), (iii) all expenses incurred in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, the
Exchange Certificates, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all
fees and disbursements relating to the qualification of the Pass
Through Trust Agreements under applicable securities laws, (vi) the
fees and disbursements of counsel for Amtran and the Company and of the
independent public accountants of Amtran and the Company, including the
expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, (vii) the reasonable fees
and expenses of the Trustees, including their counsel, and any escrow
agent, administrative agent, security agent or custodian, (viii) in the
case of a Shelf Registration Statement, the reasonable fees and
disbursements of one counsel for the Holders of Registrable
Certificates issued by the Class A Trust and subject to such
Registration Statement (which counsel shall be selected by the Majority
Holders of the Class A Trust) and one counsel for the Holders of
Registrable Certificates
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issued by the Class B Trust and subject to such Registration Statement
(which counsel shall be selected by the Majority Holders of the Class B
Trust) and (ix) any reasonable fees and disbursements of the
underwriters, if any, in connection with any Shelf Registration
Statement, and the fees and expenses of any special experts retained by
Amtran or the Company in connection with any Registration Statement, in
each case as are customarily required to be paid by issuers, but
excluding (with respect to clauses (iii) through (ix) above) fees and
expenses of counsel to the underwriters (other than fees and expenses
set forth in clause (ii) above) and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Certificates by a Holder.
"Registration Statement" shall mean any registration statement
of Amtran and the Company that covers any of the Exchange Certificates
or Registrable Certificates pursuant to the provisions of this
Agreement and all amendments and supplements to any such registration
statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of Amtran and the Company pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the
Registrable Certificates (but no other securities unless approved by
the Holders whose Registrable Certificates are covered by such shelf
registration statement) on an appropriate form under Rule 415 under the
1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Trustees" shall mean the trustees under the Pass Through
Trust Agreements.
"Trusts" shall have the meaning set forth in the preamble of
this Agreement.
"Underwriter" shall have the meaning set forth in Section 3
hereof.
"Underwritten Registration" or "Underwritten Offering" shall
mean an SEC registration of Registrable Certificates in which
Registrable Certificates are sold to an Underwriter for reoffering to
the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, Amtran and the Company shall
(i) use their reasonable best efforts to file with the SEC within 240 days after
the original issuance date of the Initial Certificates, an
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Exchange Offer Registration Statement covering the offer by Amtran and the
Company to the Holders to exchange all of the Registrable Certificates for
Exchange Certificates, (ii) use their reasonable best efforts to cause such
Exchange Offer Registration Statement to be declared effective by the SEC within
300 days after the original issuance date of the Initial Certificates, (iii) use
their reasonable best efforts to have such Exchange Offer Registration Statement
remain continuously effective until the closing of the Exchange Offer and (iv)
use their reasonable best efforts to consummate the Exchange Offer within 330
days after the original issuance date of the Initial Certificates. Amtran and
the Company shall commence the Exchange Offer promptly after the Exchange Offer
Registration Statement has been declared effective by the SEC and use their
reasonable best efforts to have the Exchange Offer consummated not later than 60
days after such effective date. Amtran and the Company shall commence the
Exchange Offer by mailing the related exchange offer Prospectus and accompanying
documents to each Holder stating, in addition to such other disclosures as are
required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Certificates
validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 20 business days from the date such notice is
mailed) (the "Exchange Dates"; the last business day on which the
exchange is open is referred to herein as the "last Exchange Date");
(iii) that any Registrable Certificate included in the
Exchange Offer but not tendered will remain outstanding and continue to
accrue interest, but will not retain any rights under this Registration
Rights Agreement;
(iv) that Holders electing to have a Registrable Certificate
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Certificate, together with the letters of transmittal
accompanying the Exchange Offer, to the institution and at the address
(located in the Borough of Manhattan, The City of New York) specified
in the notice prior to the close of business on the last Exchange Date;
and
(v) that Holders will be entitled to withdraw their tendered
Registrable Certificates at any time prior to the close of business on
the last Exchange Date, by sending to the institution and at the
address (located in the Borough of Manhattan, The City of New York)
specified in the notice a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Registrable Certificates delivered for exchange and a statement that
such Holder is withdrawing his election with respect to all or a
portion of such Registrable Certificates originally elected to be
exchanged.
As soon as practicable after the last Exchange Date, Amtran
and the Company shall, or shall direct the Trustees to and the Trustees shall:
(i) accept for exchange Registrable Certificates or portions
thereof tendered and not validly withdrawn pursuant to the Exchange
Offer;
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(ii) deliver, or cause to be delivered, to the Trustees for
cancellation all Registrable Certificates or portions thereof so
accepted for exchange by Amtran and the Company and issue, and cause
the Trustees to promptly authenticate and mail to each Holder, an
Exchange Certificate equal in principal amount to the principal amount
of the Registrable Certificates surrendered by such Holder.
Amtran and the Company shall use their reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the 1933 Act, the 1934 Act and other applicable laws and
regulations in connection with the Exchange Offer. The Exchange Offer shall not
be subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the Staff of the SEC.
Prior to the effectiveness of the Exchange Offer Registration Statement, Amtran
and the Company shall provide a supplemental letter to the SEC (A) stating that
Amtran and the Company are conducting the Exchange Offer in reliance on the
position of the SEC in Exxon Capital Holdings Corporation (pub. Avail. May 13,
1988), Morgan Stanley and Co., Inc. (pub. Avail. June 5, 1991) and related SEC
"no-action" letters; and (B) making any required representations to the SEC as
contemplated by such "no-action" letters.
(b) In the event that (i) the Company reasonably determines
that the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be completed as soon as practicable after the last Exchange
Date because it would violate applicable law or the applicable interpretations
of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason
consummated within 330 days after the original issuance date of the Initial
Certificates or the Exchange Offer Registration Statement is not declared
effective within 300 days after the original issuance date of the Initial
Certificates; or (iii) any Holder of Registrable Certificates is not eligible to
participate in an Exchange Offer Registration, Amtran and the Company shall use
their reasonable best efforts to cause to be filed as soon as practicable after
such determination, date or notice of such opinion of counsel is given to Amtran
and the Company, as the case may be, a Shelf Registration Statement providing
for the sale by the Holders of all of the Registrable Certificates in accordance
with the method or methods of distribution elected by such Holders and as
described in the Registration Statement and to have such Shelf Registration
Statement declared effective by the SEC as soon as practicable after such
Registration Statement is filed. Amtran and the Company agree to use their
reasonable best efforts to keep the Shelf Registration Statement continuously
effective and in compliance with applicable law until the expiration of the
period referred to in Rule 144(k) with respect to the Registrable Certificates
or such shorter period that will terminate when all of the Registrable
Certificates covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement. Amtran and the Company further agree to
supplement or amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by Amtran
and the Company for such Shelf Registration Statement or by the 1933 Act or by
any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder with respect to information relating to such
Holder, and to use their reasonable best efforts to cause any such amendment to
become effective and such Shelf Registration Statement to become usable as soon
as thereafter practicable. Amtran and the Company agree to furnish to the
Holders of Registrable Certificates copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
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(c) The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or Section 2(b). The
Company shall reimburse any Registration Expenses incurred, assumed and paid by
any Person (which shall not include underwriting discounts and commissions and
transfer taxes, if any).
(d) (i) Amtran and the Company will be deemed not to have used
their reasonable best efforts to cause the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, to become, or to
remain, effective during the requisite period if either of Amtran or the Company
voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable
Certificates covered thereby not being able to exchange or offer and sell such
Registrable Certificates during that period, unless (A) such action is required
by applicable law or (B) such action is taken by Amtran or the Company to
postpone the filing or effectiveness (or suspend the effectiveness) of any
Registration Statement if (1) Amtran or the Company would be required to
disclose in such Registration Statement a material business situation,
transaction or negotiation affecting Amtran or the Company not otherwise then
required by law to be publicly disclosed, and (2) in the good faith judgment of
the board of directors of Amtran or the Company, such disclosure would
materially and adversely affect such business situation, transaction or
negotiation, so long as Amtran and the Company promptly comply with the
requirements of Section 3(i) hereof, Section 2(a)(i) hereof or Section 2(a)(ii)
hereof, as applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that, if, after it has been declared
effective, the offering of Registrable Certificates pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have become effective during the
period of such interference until the offering of Registrable Certificates
pursuant to such Registration Statement may legally resume. In the event the
Exchange Offer is not consummated and the Shelf Registration Statement is not
declared effective on or prior to the 330th day after the original issuance date
of the Initial Certificates, the interest rate on the Registrable Certificates
will be increased by 0.50% per annum from and including such 330th day to, but
excluding, the earlier of (i) the date on which the Exchange Offer is
consummated or (ii) the date on which a Shelf Registration Statement is declared
effective by the SEC, which additional interest shall be paid through a
combination of an increase in the interest rate per annum borne by the Equipment
Notes of 0.50% and, if applicable, an increase in the interest rate per annum
payable on the Deposits of 0.50% pursuant to the Deposit Agreements. In the
event (i) that the Shelf Registration Statement ceases to be effective at any
time during the period during which it should remain continuously effective as
specified by Section 2(b) hereof, (ii) the filing of any Registration Statement
is postponed under circumstances contemplated by Section 2(d)(i)(B) or (iii) at
the request of the Company or Amtran, the effectiveness of any filed
Registration Statement is postponed under circumstances contemplated by Section
2(d)(i)(B), for more than 60 days in the aggregate, whether or not consecutive,
during any 12 month period, the interest rate payable in respect of the
Registrable Certificates shall be increased by 0.50% per annum from the 61st day
of the applicable 12 month period such Registration Statement ceases to be
effective, or the filing or effectiveness of the Registration Statement is
postponed, as the case may be, until such time as the Shelf Registration
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Statement is filed or becomes effective, as the case may be, (or, if earlier,
the end of the period specified by Section 2(b) hereof), which additional
interest shall be paid through a combination of an increase in the interest rate
per annum borne by the Equipment Notes of 0.50% and, if applicable, an increase
in the interest rate per annum payable on the Deposits of 0.50% pursuant to the
Deposit Agreements.
(e) Without limiting the remedies available the Holders, the
Company acknowledges that any failure by the Company to comply with its
obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain such relief as may
be required to specifically enforce the Company's obligations under Section 2(a)
and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of Amtran and the Company
with respect to the Registration Statements pursuant to Section 2(a) and Section
2(b) hereof, Amtran and the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on
the appropriate form under the 1933 Act, which form (x) shall be
selected by Amtran and the Company and (y) shall, in the case of a
Shelf Registration, be available for the sale of the Registrable
Certificates by the selling Holders thereof and (z) shall comply as to
form in all material respects with the requirements of the applicable
form and include all financial statements required by the SEC to be
filed therewith, and use their reasonable best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
required period applicable to the registration form utilized by Amtran
and the Company or required by the 1933 Act or otherwise necessary to
keep the Registration Statement effective for the period specified in
Section 2, and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to
Rule 424 under the 1933 Act; comply with the provisions of the 1933 Act
with respect to the disposition of all Registrable Certificates subject
to such Registration Statement during the period specified in Section 2
in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus; keep each Prospectus current during the period described
under Section 4(3) and Rule 174 under the 1933 Act that is applicable
to transactions by brokers or dealers with respect to the Registrable
Certificates or Exchange Certificates;
(c) in the case of a Shelf Registration, furnish to each
Holder of Registrable Certificates, to counsel for the Holders and to
each Underwriter of an Underwritten Offering of Registrable
Certificates, if any, without charge, as many copies of each
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Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or
Underwriter may reasonably request, in order to facilitate the public
sale or other disposition of the Registrable Certificates; and, subject
to the last paragraph of this Section 3, Amtran and the Company consent
to the use of such Prospectus and any amendment or supplement thereto
in accordance with applicable law by each of the selling Holders of
Registrable Certificates and any such Underwriters in connection with
the offering and sale of the Registrable Certificates covered by and in
the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(d) prior to the effectiveness of any Registration Statement,
use their reasonable best efforts to register or qualify the
Registrable Certificates (or, in the event the Registrable Certificates
are "covered securities" pursuant to Section 18(b)(1) of the 1933 Act,
use their best efforts to register or qualify the Registrable
Certificates, if any such registration or qualification is necessary in
order to facilitate the public sale or distribution of the Registrable
Certificates) and cooperate with the Holders of Registrable
Certificates and their counsel in the registration or qualification of
such Registrable Certificates under all applicable securities or "blue
sky" laws of such jurisdictions of the United States as any Holder of
Registrable Certificates covered by a Registration Statement shall
reasonably request in writing by the time the applicable Registration
Statement is declared effective by the SEC and to keep such
registrations or qualifications in effect for so long as may be
necessary to permit such Holder to complete its distribution of
Registrable Certificates pursuant to the Registration Statement, to
cooperate with such Holders in connection with any filings required to
be made with the National Association of Securities Dealers, Inc. and
do any and all other acts and things which may be reasonably necessary
or advisable to enable such Holder to consummate the disposition in
each such jurisdiction of such Registrable Certificates owned by such
Holder; provided, however, that the Company shall not be required to
(i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(d), (ii) file any general consent to service of
process or (iii) take any action which would subject it to taxation in
any such jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration (or, with respect to
Section 3(e)(v), an Exchange Offer Registration Statement) notify each
Holder of Registrable Certificates and counsel for the Holders promptly
and, if requested by any such Holder or counsel, confirm in writing (i)
when a Registration Statement has become effective and when any
post-effective amendment thereto has been filed and becomes effective,
(ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement or Prospectus or
for additional information after the Registration Statement has become
effective, (iii) in case of either a Shelf Registration or an Exchange
Offer Registration of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Certificates
covered thereby, the representations and warranties of Amtran or the
Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the
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offering cease to be true and correct in all material respects or if
Amtran or the Company receives any notification with respect to the
suspension of the qualification of the Registrable Certificates for
sale in any jurisdiction or the initiation of any proceeding for such
purpose, (v) of the happening of any event during the period a Shelf
Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus misleading or
untrue in any material respect or which requires the making of any
changes in such Registration Statement or Prospectus in order to make
the statements therein not misleading or untrue in any material respect
or, as contemplated by Section 2(d)(i)(B) hereof, the occurrence of
circumstances which would allow the Company or Amtran to postpone or
suspend the filing or the effectiveness of any Registration Statement,
and (vi) of any determination by Amtran or the Company that a
post-effective amendment to a Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement as
promptly as practicable and provide immediate notice to each Holder of
the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Certificates, without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested) and such number of copies of the
Registration Statement and post-effective amendments as such Holders
may reasonably request to effectuate the disposition of the Registrable
Certificates;
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Certificates to facilitate the timely
preparation and delivery of certificates representing Registrable
Certificates to be sold and not bearing any restrictive legends and
enable such Registrable Certificates to be in such denominations
(consistent with the provisions of the Pass Through Trust Agreements)
and registered in such names as the selling Holders may reasonably
request at least one business day prior to the closing of any sale of
Registrable Certificates;
(i) in respect of any Registration Statement, upon the
occurrence of any event or discovery of any facts as contemplated by
Section 2(d)(i)(B) or Section 3(e)(v) hereof, use their reasonable best
efforts to promptly prepare and file with the SEC an amendment, a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Certificates, such
Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Amtran and the Company agree to notify the Holders to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and the Holders hereby agree to suspend
use of the Prospectus upon receipt of such notice until Amtran and the
Company have amended or supplemented the Prospectus to correct such
misstatement or omission;
12
(j) furnish to the Holders having Registrable Certificates
included in any Shelf Registration Statement and their counsel, a
reasonable time prior to the initial filing of any Shelf Registration
Statement, any Prospectus included therein or any amendments or
supplements to any such Shelf Registration Statement or Prospectus
included therein, copies of such documents to be filed, which documents
shall be subject to the review and comment of such Holders in
connection with such sale, if any, for a period not to exceed five
business days, and Amtran and the Company will not file any such Shelf
Registration Statement or Prospectus or any amendment or supplement to
any such Shelf Registration Statement or Prospectus to which such
Holders shall reasonably object within the five business days (two
business days in the case of any amendment or supplement) after the
receipt thereof. A Holder shall be deemed to have reasonably objected
to such filing if such Shelf Registration Statement, amendment,
Prospectus or supplement, as applicable, proposed to be filed, contains
any untrue statement of material fact or omits to state any material
fact necessary to make the statements therein not misleading, fails to
comply in any material respect with the applicable requirements of the
1933 Act or contains incorrect information with respect to such Holder
or its plan of distribution;
(k) obtain a CUSIP number for all Exchange Certificates or
Registrable Certificates, as the case may be, not later than the
effective date of a Registration Statement;
(l) (i) cause the Pass Through Trust Agreements to be
qualified under the Trust Indenture Act of 1939, as amended (the
"TIA"), in connection with the registration of the Exchange
Certificates, or Registrable Certificates, as the case may be, (ii)
cooperate with the Trustees and the Holders to effect such changes to
the Pass Through Trust Agreements as may be required for the Pass
Through Trust Agreements to be so qualified in accordance with the
terms of the TIA and (iii) execute, and use their reasonable best
efforts to cause the Trustees to execute, all documents as may be
required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Pass Through Trust
Agreements to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Certificates, any Underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and attorneys and accountants
designated by the Holders, at reasonable times and in a reasonable
manner, all financial and other records relevant to the Shelf
Registration Statement, pertinent documents and properties of Amtran
and the Company, and cause the respective officers, directors and
employees of Amtran and the Company to supply all information
reasonably requested by any such representative, Underwriter, attorney
or accountant in connection with a Shelf Registration Statement;
(n) in the case of a Shelf Registration, use their reasonable
best efforts to cause all Registrable Certificates to be listed on any
securities exchange or any automated quotation system on which similar
securities issued by the Company or Amtran are then listed if requested
by the Majority Holders of the Registrable Certificates issued by
either Trust, to the extent such Registrable Certificates satisfy
applicable listing requirements;
13
(o) use their reasonable best efforts to cause the Exchange
Certificates to continue to be rated by one nationally recognized
statistical rating organization (as such term is defined in Rule 436(g)
(2) under the 1933 Act);
(p) if reasonably requested by any Holder of Registrable
Certificates covered by a Registration Statement, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information with respect to such Holder as such Holder reasonably
requests to be included therein and (ii) make all required filings of
such Prospectus supplement or such post-effective amendment as soon as
practicable after Amtran and the Company have received notification of
the matters to be incorporated in such filing; and
(q) in the case of a Shelf Registration, enter into such
customary agreements and take all such other actions in connection
therewith (including those reasonably requested by the Majority Holders
of the Registrable Certificates issued by each Trust being sold and, if
an underwriting agreement is entered into, Amtran and the Company will
use their reasonable best efforts to include therein indemnification
provisions no less favorable than those set forth in Section 5 hereof)
in order to expedite or facilitate the disposition of such Registrable
Certificates including, but not limited to, an Underwritten Offering
and in such connection, (i) make such representations and warranties to
the Holders and any Underwriters of such Registrable Certificates with
respect to the business of Amtran, the Company and their subsidiaries,
the Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each case, in
form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings and confirm the same if
and when reasonably requested, (ii) obtain opinions of counsel to the
Company (which counsel may include the general counsel of Amtran or the
Company with respect to certain matters and which opinions, in form,
scope and substance, shall be reasonably satisfactory to the Majority
Holders of the Registrable Certificates issued by each Trust being sold
and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Registrable Certificates, covering
the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may reasonably be requested by the
appointed representative or counsel of the Majority Holders of the
Registrable Certificates issued by each Trust being sold, (iii) obtain
"cold comfort" letters from the independent certified public
accountants of Amtran and the Company (and, if necessary, any other
certified public accountant of any subsidiary of Amtran or the Company,
or of any business acquired by Amtran or the Company for which
financial statements and financial data are or are required to be
included in the Registration Statement) addressed to each selling
Holder and Underwriter of Registrable Certificates, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with similar underwritten
offerings, and (iv) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in principal amount
of the Registrable Certificates being sold or the Underwriters, and
which are customarily delivered in similar underwritten offerings, to
evidence the continued validity of the representations and warranties
of Amtran and the Company made pursuant to clause (i) above and to
14
evidence compliance with any customary conditions contained in an
underwriting agreement;
(r) otherwise use all reasonable efforts to comply with
applicable laws and to make generally available to its security holders
as soon as practicable, but in any event not later than eighteen months
after (i) the effective date (as defined in Rule 158(c) under the 1933
Act) of a Registration Statement, (ii) the effective date of each
post-effective amendment to the Registration Statement, and (ii) the
date of each filing by Amtran and the Company with the SEC of an Annual
Report on Form 10-K that is incorporated by reference in a Registration
Statement, an earning statement of Amtran and the Company and their
subsidiaries complying with Section 11(a) of the 1933 Act and the rules
and regulations of the SEC thereunder (including, at the option of the
Company, Rule 158).
In the case of a Shelf Registration Statement, Amtran and the
Company may, upon reasonable notice, require each Holder of Registrable
Certificates to furnish to Amtran and the Company such information regarding the
Holder and the proposed distribution by such Holder of such Registrable
Certificates as is required to be disclosed in the Shelf Registration Statement
pursuant to the 1933 Act, such information to be requested in writing by the
Company for inclusion in such Registration Statement and the Company may exclude
from such registration the Registrable Certificates of any Holder that fails to
furnish such information within a reasonable time after receiving such request.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 2(d)(i)(B) or Section 3(e)(v) hereof,
such Holder will forthwith discontinue disposition of Registrable Certificates
pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(i) hereof,
and, if so directed by the Company, such Holder will deliver to the Company (at
its expense) all copies in its possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such Registrable
Certificates current at the time of receipt of such notice. If the Company shall
give any such notice to suspend the disposition of Registrable Certificates
pursuant to a Registration Statement, the Company shall extend the period during
which the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions.
The Company may give notice of a suspension with respect to
circumstances contemplated by Section 2(d)(i)(B) or Section 3(e)(v) or a
postponement of the filing of a Registration Statement or of the effectiveness
of a filed Registration Statement (in each such case, a "Postponement") with
respect to circumstances contemplated by Section 2(d)(i)(B) only twice during
any 365 day period. Any single suspension or Postponement may not exceed 45 days
and there may not be more than two suspensions or Postponements in effect during
any 365 day period, which two suspensions or Postponements in effect during any
365 day period shall not exceed a total of 60 days in the aggregate.
15
The Holders of Registrable Certificates covered by a Shelf
Registration Statement who desire to do so may sell such Registrable
Certificates in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers (the
"Underwriters") that will administer the offering will be selected by the
Majority Holders of the Registrable Certificates included in such offering;
provided, however, that (i) such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the Company and
(ii) the Company shall not, during the period the Shelf Registration is required
to be effective pursuant to Section 2(b) hereof, be obligated to arrange for
more than two underwritten offerings. In any underwritten offering contemplated
hereby, the Holders of Registrable Certificates issued by the Class B Trust may
participate as selling Holders in any underwritten offering requested by the
Majority Holders of the Registrable Securities of the Class A Trust on a pro
rata basis, and vice versa (with the Company being obligated to give notice to
all of the Holders of Registrable Certificates of any request of an underwritten
offering by any of the Holders of Registrable Certificates). No Holder may
participate in any underwritten offering contemplated hereby unless such Holder
agrees to sell such Holder's Registrable Certificates in accordance with any
approved underwriting arrangements.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any
broker-dealer that receives Exchange Certificates for its own account in the
Exchange Offer in exchange for Registrable Certificates that were acquired by
such broker-dealer as a result of market-making or other trading activities (a
"Participating Broker-Dealer"), may be deemed to be an "underwriter" within the
meaning of the 1933 Act and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such Exchange Certificates.
Amtran and the Company understand that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Certificates, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Certificates owned by them, such Prospectus
may be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the 1933 Act in connection with resales of Exchange
Certificates for their own accounts, so long as the Prospectus otherwise meets
the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other
provisions of this Agreement, Amtran and the Company agree that the provisions
of this Agreement as they relate to a Shelf Registration shall also apply to an
Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by one or more
Participating Broker-Dealers, in each case as provided in clause (ii) below, in
order to expedite or facilitate the disposition of any Exchange Certificates by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) Amtran and the Company shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a
period exceeding 180 days after the last Exchange Date (as such period
may be extended pursuant to the penultimate paragraph of
16
Section 3 of this Agreement) and Participating Broker-Dealers shall not
be authorized by Amtran and the Company to deliver and shall not
deliver such Prospectus after such period in connection with the
resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set
forth in Section 3 of this Agreement to an Exchange Offer Registration,
to the extent not required by the positions of the Staff of the SEC or
the 1933 Act and the rules and regulations thereunder, will be in
conformity with the reasonable request in writing to Amtran and the
Company by one or more broker-dealers who certify to Amtran and the
Company in writing that they anticipate that they will be Participating
Broker-Dealers; and provided further that, in connection with such
application of the Shelf Registration procedures set forth in Section 3
to an Exchange Offer Registration, Amtran and the Company shall be
obligated (x) to communicate with only one entity representing all
Participating Broker-Dealers, which shall be Morgan Stanley & Co.
Incorporated unless it elects not to act as such representative, (y) to
pay the fees and expenses of only one counsel representing the
Participating Broker-Dealers, which shall be counsel to the Morgan
Stanley & Co. Incorporated unless such counsel elects not to so act and
(z) to cause to be delivered only one, if any, "cold comfort" letter
with respect to the Prospectus in the form existing on the last
Exchange Date and with respect to each subsequent amendment or
supplement, if any, effected during the period specified in clause (i)
above.
(c) Morgan Stanley & Co. Incorporated shall have no liability
to Amtran, the Company or any Holder with respect to any request that
is made in accordance with Section 4(b) above.
5. Indemnification and Contribution.
+ (a) Amtran and the Company agree to indemnify and hold
harmless each Holder and each of their respective officers and directors and
each Person, if any, who controls any Holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under common
control with, or is controlled by, any Holder, from and against all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by any Holder or any such controlling or
affiliated Person in connection with defending or investigating any such loss,
damage, liability action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement (or
any amendment thereto) pursuant to which Exchange Certificates or Registrable
Certificates were registered under the 1933 Act, including all documents
incorporated therein by reference, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if Amtran and the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Holder furnished to Amtran or
the Company in writing by such selling Holder expressly for use therein;
provided, however, that the foregoing indemnity
17
agreement with respect to any preliminary Prospectus shall not inure to the
benefit of any Person from whom the Person asserting any such losses, claims,
damages or liabilities purchased Registrable Certificates, or any person
controlling such seller, if a copy of the final Prospectus (as then amended or
supplemented if Amtran and the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such seller to
such purchaser with or prior to the written confirmation of the sale of the
Registrable Certificates to such Person, and if the final Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities. In connection with any Underwritten Offering
permitted by Section 3, Amtran and the Company will also indemnify the
Underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of the 1933 Act
and the 1934 Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each selling Holder agrees, severally and not jointly, to
indemnify and hold harmless Amtran and the Company, and each of their respective
directors, officers who sign the Registration Statement and each Person, if any,
who controls Amtran or the Company within the meaning of either Section 15 of
the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing
indemnity from Amtran and the Company to the Holders, but only with reference to
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in such Registration Statement (or any amendment
thereto) or such Prospectus (or any amendment or supplement thereto) that is the
subject of the indemnity.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such Person (the "indemnified party") shall promptly, after its receipt of
notice of any such proceeding, notify the Person against whom such indemnity may
be sought (the "indemnifying party") in writing of the commencement thereof;
provided, however, that the failure to so notify the indemnifying party (i) will
not relieve the indemnifying party from liability under paragraph (a) or (b)
above unless and to the extent the indemnifying party did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying party
of material rights and defenses, and (ii) will not, in any event, relieve the
indemnifying party from any obligations to an indemnified party other than the
indemnification obligations provided in paragraph (a) and (b) above. The
indemnifying party, upon request of the indemnified party, shall promptly retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own separate counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would,
in the reasonable opinion of the indemnified party, be inappropriate due to
actual or potential differing interests between them and such counsel. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (a)
the fees and expenses
18
of more than one separate firm (in addition to any local counsel) for Amtran and
the Company, their respective directors, their respective officers who sign the
Registration Statement and each Person, if any, who controls Amtran or the
Company within the meaning of either Section 15 of the 1933 Act or Section 20 of
the 1934 Act, and (b) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Holders of Registrable Certificates
issued by the Class A Trust and each Person, if any, who controls any such
Holders within the meaning of either such Section and one separate firm (in
addition to any local counsel) for the Holders of Registrable Certificates
issued by the Class B Trust and each Person, if any, who controls any such
Holders within the meaning of either such Section, and that all such fees and
expenses shall be reimbursed as they are incurred. In such case involving the
Holders and such Persons who control Holders, such firm shall be designated in
writing by the Majority Holders of the Registrable Certificates issued by the
respective Trust. In all other cases, such firm shall be designated by Amtran
and the Company. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of Amtran and
the Company and the Holders 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 Amtran and the Company or by the Holders and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Holders' respective obligations to contribute
pursuant to this Section 5(d) are several in proportions to the respective
principal amount of Registrable Certificates of such Holder that were registered
pursuant to a Registration Statement.
(e) Amtran and the Company and each Holder agree that it would
not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be
19
required to indemnify or contribute any amount in excess of the amount by which
the total price at which Registrable Certificates were sold by such Holder
exceeds the amount of any damages that such Holder 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 1933 Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 5 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or any Person controlling any Holder, or by or on behalf of Amtran
or the Company, their respective officers or directors or any Person controlling
Amtran or the Company, (iii) acceptance of any of the Exchange Certificates and
(iv) any sale of Registrable Certificates pursuant to a Shelf Registration
Statement.
6. Rule 144.
Amtran and the Company covenant to the Holders of Registrable
Certificates that to the extent it shall be required to do so under the 1934
Act, Amtran and the Company shall timely file the reports required to be filed
by it under the 1934 Act or the 1933 Act (including, but not limited to, the
reports under Section 13 and 15(d) of the 1934 Act referred to in subparagraph
(c)(1) of Rule 144 under the 1933 Act) and the rules and regulations, and shall
take such further action as any Holder of Registrable Certificates may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Certificates without registration under the 1933 Act
within the limitations of the exemption provided by Rule 144 under the 1933 Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Certificates, Amtran and the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements.
7. Miscellaneous.
(a) No Inconsistent Agreements. Neither Amtran nor the Company
has entered into, and on or after the date of this Agreement will not enter
into, any agreement which is inconsistent with the rights granted to the Holders
of Registrable Certificates in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
Amtran's or the Company's other issued and outstanding securities under any such
agreements.
(b) Amendments and Waivers. Subject to the last sentence of
this Section 7(b), the provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given unless Amtran
or the Company has obtained the written consent of the Majority Holders of the
outstanding Registrable Certificates issued by each Trust affected by such
amendment, modification, supplement, waiver or consent; provided, however, that
no
20
amendment, modification, supplement, waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder (as such
term applies to Section 5) unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(c), which address initially is, with respect to the Investors, the
address set forth in the Class A Certificates Purchase Agreement or in the Class
B Certificates Purchase Agreement, as the case may be; and (ii) if to Amtran or
the Company, initially at the addresses set forth in the Certificates Purchase
Agreements and thereafter at such other addresses, notice of which is given in
accordance with the provisions of this Section 7(c).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustees,
at the address specified in the Pass Through Trust Agreement.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Certificates in violation of the terms of the Certificates Purchase Agreements.
If any transferee of any Holder shall acquire Registrable Certificates, in any
manner, whether by operation of law or otherwise, such Registrable Certificates
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Certificates such Person shall be conclusively deemed
to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits hereof.
(e) Purchases and Sales of Registrable Certificates. Amtran
and the Company shall not, and shall use their reasonable best efforts to cause
their respective affiliates (as defined in Rule 405 under the 1933 Act) not to,
purchase and then resell or otherwise transfer any Registrable Certificates.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between Amtran and the Company,
on the one hand, and the Investors, on the other hand, and shall have the right
to enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
Morgan Stanley & Co. Incorporated shall be a third party beneficiary with
respect to the provisions set forth in Sections 4(b) and 4(c) hereof and shall
have the right to enforce such provisions directly to the extent it deems such
enforcement necessary or advisable.
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(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. This Agreement shall be governed by the
laws of the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this Agreement
or made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
any Holder of Registrable Certificates, any director, officer or partner of such
Holder, any agent or underwriter or any director, officer or partner thereof, or
any controlling person of the foregoing.
(l) Limitation of Trustee Liability. Notwithstanding anything
contained herein to the contrary, it is expressly understood and agreed by the
parties hereto that (i) this Agreement is executed and delivered by Wilmington
Trust Company, not individually or personally but solely as Trustee in the
exercise of the powers and authority conferred and vested in it under the Pass
Through Trust Agreements, (ii) each of the representations, undertakings and
agreements herein made on the part of the Trustee is made and intended not as
personal representations, undertakings and agreements by Wilmington Trust
Company but is made for the purpose of binding only the Trustee and (iii) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trustee or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Trustee under this Agreement or the other related
documents.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above. AMERICAN TRANS AIR, INC.
By:
--------------------------------
Name:
Title:
AMTRAN, INC.
By:
--------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee under
each of the Trusts
By:
--------------------------------
Name:
Title:
NYALA FUNDING LLC
By:
--------------------------------
Name:
Title:
PK AIRFINANCE US, INC.
By:
--------------------------------
Name:
Title:
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