EXECUTION COPY
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NOTE PURCHASE AGREEMENT
Dated as of March 28, 2002
Among
AMERICAN TRANS AIR, INC.
AMTRAN, INC.,
as Guarantor
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
WILMINGTON TRUST COMPANY,
as Subordination Agent
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
and
WILMINGTON TRUST COMPANY,
as Paying Agent
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INDEX TO NOTE PURCHASE AGREEMENT
Page
SECTION 1. Financing of Aircraft.......................................3
SECTION 2. Conditions Precedent........................................7
SECTION 3. Representations and Warranties..............................8
SECTION 4. Covenants..................................................12
SECTION 5. Notices....................................................15
SECTION 6. Expenses...................................................15
SECTION 7. Further Assurances.........................................16
SECTION 8. Miscellaneous..............................................16
SECTION 9. Governing Law..............................................17
SECTION 10. Subordination Agent's Liability...........................17
Schedules
Schedule I-A Aircraft and Scheduled Delivery Months
Schedule I-B Aircraft and Scheduled Delivery Months
Schedule II Pass Through Trust Agreements
Schedule III-A Deposit Agreements
Schedule III-B Delayed Deposit Agreements
Schedule IV Escrow and Paying Agent Agreements
Schedule V Mandatory Document Terms
Schedule VI Mandatory Economic Terms
Schedule VII Aggregate Amortization Schedule
Annex A Definitions
Exhibits
Exhibit A-1 Form of Leased Aircraft Participation Agreement
Exhibit A-2-1 Form of 467 Lease
Exhibit A-2-2 Form of Non-467 Lease
Exhibit A-3 Form of Leased Aircraft Indenture
Exhibit A-4-1 Form of Purchase Agreement Assignment (ATA Aircraft)
Exhibit A-4-2 Form of Purchase Agreement Assignment (GE Aircraft)
Exhibit A-5 Form of Leased Aircraft Trust Agreement
Exhibit A-6 Form of Leased Aircraft Guarantee
Exhibit B Form of Delivery Notice
Exhibit C-1 Form of Owned Aircraft Participation Agreement
Exhibit C-2 Form of Owned Aircraft Indenture
Exhibit C-3 Form of Owned Aircraft Guarantee
Exhibit D Additional Subordination Provision for Series C Equipment
Notes
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of March 28, 2002, among
(i) AMERICAN TRANS AIR, INC., an Indiana corporation (the "Company"), (ii)
AMTRAN, INC., an Indiana corporation (the "Guarantor"), (iii) WILMINGTON TRUST
COMPANY ("WTC"), a Delaware banking corporation, not in its individual capacity
except as otherwise expressly provided herein, but solely as trustee (in such
capacity together with its successors in such capacity, the "Pass Through
Trustee") under each of the two separate Pass Through Trust Agreements (as
defined below), (iv) WILMINGTON TRUST COMPANY, a Delaware banking corporation,
not in its individual capacity except as otherwise expressly provided herein,
but solely as subordination agent and trustee (in such capacity together with
its successors in such capacity, the "Subordination Agent") under the
Intercreditor Agreement (as defined below), (v) WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, a national banking association, as Escrow Agent (in such
capacity together with its successors in such capacity, the "Escrow Agent"),
under each of the Escrow and Paying Agent Agreements (as defined below) and (vi)
WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual
capacity except as otherwise expressly provided herein, but solely as Paying
Agent (in such capacity together with its successors in such capacity, the
"Paying Agent") under each of the Escrow and Paying Agent Agreements.
W I T N E S S E T H:
WHEREAS, capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in Annex A hereto;
WHEREAS, the Company has obtained (either directly or through
GECC) commitments from the Manufacturer pursuant to the Aircraft Purchase
Agreements for the delivery of, and/or has taken delivery of, the Boeing 737-800
aircraft listed in Schedule I-A hereto.
WHEREAS, pursuant to each of the Pass Through Trust Agreements set
forth in Schedule II hereto (as amended, supplemented or otherwise modified from
time to time, the "Pass Through Trust Agreements"), and concurrently with the
execution and delivery of this Agreement, separate grantor trusts (collectively,
the "Pass Through Trusts" and, individually, a "Pass Through Trust") have been
created to facilitate certain of the transactions contemplated hereby,
including, without limitation, the issuance and sale of pass through
certificates pursuant thereto (collectively, the "Certificates") to provide for
a portion of the financing of the Aircraft;
WHEREAS, the Company, the Guarantor, the Pass Through Trustee and
the Investors (as defined in the Registration Rights Agreement) are entering
into the Registration Rights Agreement dated the date hereof;
WHEREAS, the Company, the Guarantor, the Pass Through Trustee, the
Subordination Agent, the Escrow Agent, AIG Matched Funding Corp., not in its
individual capacity except as otherwise expressly provided therein, but solely
as Class A Liquidity Provider and Class B Liquidity Provider (in such capacity
together with its successors in such capacity, the "Liquidity Provider"), the
Paying Agent and the Purchasers concurrently herewith are entering into a
Delayed Funding Implementation Agreement, dated as of the date hereof (as
amended, supplemented or otherwise modified from time to time, the "Delayed
Funding Implementation Agreement") pursuant to which the parties thereto agree
to supplement and modify the Operative Agreements, as defined therein;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) the Escrow Agents and the Depositary entered into the Deposit
Agreements set forth in Schedule III-A hereto and the Delayed Deposit Agreements
set forth in Schedule III-B hereto and (ii) the Pass Through Trustees, the
Purchasers, the Paying Agents and the Escrow Agents entered into the Escrow and
Paying Agent Agreements set forth in Schedule IV hereto (as amended,
supplemented or otherwise modified from time to time, the "Escrow and Paying
Agent Agreements");
WHEREAS, prior to (or, in the case of the utilization of bridge
financing, after) the delivery of each Aircraft, the Company will determine
whether to enter into a leveraged lease transaction as lessee with respect to
such Aircraft (a "Leased Aircraft") or to purchase as owner pursuant to a
secured loan transaction such Aircraft (an "Owned Aircraft") and will give to
the Pass Through Trustee a Delivery Notice (as defined below) specifying its
election;
WHEREAS, upon receipt of a Delivery Notice with respect to an
Aircraft, subject to the terms and conditions of this Agreement, the applicable
Pass Through Trustees will enter into the applicable Financing Agreements
relating to such Aircraft;
WHEREAS, on the Funding Date for each Aircraft, each Pass Through
Trustee will fund its purchase of Equipment Notes with (i) the proceeds of one
or more Deposits withdrawn by the applicable Escrow Agent under the related
Deposit Agreement bearing the same interest rate as the Certificates issued by
such Pass Through Trust or (ii) in the case an Aircraft for which the Funding
Date is the Issuance Date, with a portion of the proceeds of the sale of the
Certificates; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) the Liquidity Provider, has entered into two separate revolving
credit agreements (as amended, supplemented or otherwise modified from time to
time, each a "Liquidity Facility"), one each for the benefit of the
Certificateholders of each Pass Through Trust, with the Subordination Agent, as
agent for the Pass Through Trustee on behalf of each such Pass Through Trust and
(ii) the Pass Through Trustees, the Liquidity Provider and the Subordination
Agent have entered into the Intercreditor Agreement, dated as of the date hereof
(as amended, supplemented or otherwise modified from time to time, the
"Intercreditor Agreement");
WHEREAS, concurrently with the execution and delivery of this
Agreement, American International Group, Inc. has executed two guarantee
agreements, each guaranteeing
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the obligations of the initial Liquidity Provider under the related Liquidity
Facility;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Financing of Aircraft. (a) The Company confirms that
pursuant to the Aircraft Purchase Agreement with the Manufacturer, the
Manufacturer has agreed to deliver, or has delivered, the Aircraft in the months
specified in Schedule I-A hereto, all on and subject to terms and conditions
specified in the Aircraft Purchase Agreement. The Company agrees to finance the
Aircraft in the manner provided herein, all on and subject to the terms and
conditions hereof and of the relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company agrees to give
the parties hereto, the Liquidity Provider, the Depositary and the Rating Agency
not less than two Business Days' prior written notice in the form of the notice
set out in Exhibit B hereto (a "Delivery Notice") of the scheduled delivery date
(the "Scheduled Delivery Date") (or, in the case of a substitute Delivery Notice
under Section 1(e) or (g) hereof, one Business Day's prior notice) in respect of
each Aircraft under the applicable Aircraft Purchase Agreement, or in the case
of the utilization of bridge financing or sale/leaseback financing as
contemplated by Section 1(e) and (j) hereof in respect of any Aircraft, one
Business Day's prior notice of the date of the financing of such Aircraft
pursuant to the relevant Financing Agreements, which notice shall:
(i) specify whether such Aircraft is an ATA Aircraft or a GE
Aircraft, whether the Company has elected to treat such Aircraft as a
Leased Aircraft or an Owned Aircraft, and if a Leased Aircraft, whether
the Lease is to be in the form of Exhibit A-2-1 or A-2-2 to this
Agreement, subject to changes permitted under Section 1(c);
(ii) specify the Scheduled Delivery Date (if applicable) of
such Aircraft (which shall be a Business Day before the Cut-off Date)
and, except as provided in Section 1(e) hereof, the date (the "Funding
Date") on which the financing therefor in the manner provided herein
shall be consummated;
(iii) except in the case of an Aircraft with a Funding Date
that is the Issuance Date, instruct the applicable Pass Through Trustee
to execute and deliver to the relevant Escrow Agent a withdrawal
certificate in the form of Annex A to Exhibit B hereto so as to provide
a Notice of Purchase Withdrawal to the Depositary with respect to the
Equipment Notes to be issued in connection with the financing of such
Aircraft;
(iv) instruct the applicable Pass Through Trustee to enter
into the Participation Agreement included in the Financing Agreements
with respect to such Aircraft in such form and at such a time on or
before the Funding Date specified in such Delivery Notice and to
perform its obligations thereunder;
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(v) specify the aggregate principal amount of each series of
Equipment Notes to be issued and purchased by the Pass Through Trustees
in connection with the financing of such Aircraft scheduled to be
financed on such Funding Date (which shall in all respects comply with
the Mandatory Economic Terms); and
(vi) if such Aircraft is to be a Leased Aircraft, certify that
the related Owner Participant (A) is not an Affiliate of the Company
and (B) based on the representations of such Owner Participant, is
either (1) a Qualified Owner Participant or (2) any other person the
obligations of which under the Owner Participant Agreements (as defined
in the applicable Participation Agreement) are guaranteed by a
Qualified Owner Participant.
Notwithstanding the foregoing, in the event the Issuance Date coincides with the
Scheduled Delivery Date or Funding Date of any Aircraft to be financed pursuant
to the terms hereof, the Delivery Notice therefor may be delivered on such
Scheduled Delivery Date or Funding Date, as the case may be.
(c) Upon receipt of a Delivery Notice, the Pass Through Trustees
shall, and shall cause the Subordination Agent to, enter into and perform their
obligations under the Participation Agreement and other instructions specified
in such Delivery Notice, provided that such Participation Agreement and the
other Lease Financing Agreements or Owner Financing Agreements to be entered
into pursuant to such Participation Agreement shall be in the forms thereof
annexed hereto in all material respects with such changes therein as shall have
been requested by the Company or the related Owner Participant (in the case of
Lease Financing Agreements) or by the initial purchasers of the Series C
Equipment Notes or Class C Certificates (as defined in the Intercreditor
Agreement), agreed to by the Company and, if modified in any material respect as
regards the interests of the Certificateholders, as to which Rating Agency
Confirmation shall have been obtained by the Company from the Rating Agency (to
be delivered by the Company to the applicable Pass Through Trustee on or before
the relevant Delivery Date, it being understood that if Rating Agency
Confirmation shall have been received with respect to any Financing Agreements
and such Financing Agreements are utilized for subsequent Aircraft (or
Substitute Aircraft) without material modifications, no additional Rating Agency
Confirmation shall be required); provided, however, that the relevant Financing
Agreements as executed and delivered shall not vary the Mandatory Economic Terms
and shall contain the Mandatory Document Terms. Notwithstanding the foregoing,
if any Financing Agreement annexed hereto shall not have been reviewed by the
Rating Agency prior to the Issuance Date, then, prior to the use thereof in
connection with the financing of any Aircraft hereunder, the Company shall
obtain a Rating Agency Confirmation from the Rating Agency on or prior to the
relevant Funding Date. The Company shall pay the reasonable costs and expenses
of the Rating Agency in connection with obtaining the Rating Agency
Confirmation. With respect to each Aircraft, the Company shall cause WTC (or
such other person that meets the eligibility requirements to act as loan trustee
under the Leased Aircraft Indenture or Owned Aircraft Indenture) to execute as
Loan Trustee the Financing Agreements relating to such Aircraft to which such
Loan Trustee is intended to be a party, and the Company shall concurrently
therewith execute such Financing Agreements to which the Company is intended to
be a party and perform its respective obligations thereunder. Upon the request
of the Rating Agency, the Company shall
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deliver or cause to be delivered to the Rating Agency a true and complete copy
of each Financing Agreement relating to the financing of each Aircraft together
with a true and complete set of the closing documentation (including legal
opinions) delivered to the related Loan Trustee, Subordination Agent and Pass
Through Trustee under the related Participation Agreement.
(d) If after giving any Delivery Notice, there shall be a delay in
the delivery of an Aircraft, or if on the Scheduled Delivery Date or Funding
Date of an Aircraft the financing thereof in the manner contemplated hereby
shall not be consummated for whatever reason, the Company shall give the parties
hereto and the Depositary prompt notice thereof. Concurrently with the giving of
such notice of postponement or subsequently, the Company shall give the parties
hereto a substitute Delivery Notice specifying the date to which such delivery
and/or related financing shall have been re-scheduled (which shall be a Business
Day before the Cut-off Date on which the Escrow Agents shall be entitled to
withdraw one or more Deposits under each of the applicable Deposit Agreements to
enable each applicable Pass Through Trustee to fund its purchase of the related
Equipment Notes). Upon receipt of any such notice of postponement, each
applicable Pass Through Trustee shall comply with its obligations under Section
2.01(b) of each of the Pass Through Trust Agreements and thereafter the
financing of the relevant Aircraft shall take place on the re-scheduled Delivery
Date or Funding Date, as the case may be, therefor (all on and subject to the
terms and conditions of the relevant Financing Agreements) unless further
postponed as provided herein.
(e) The Company shall have the right at any time on or before the
Scheduled Delivery Date or Funding Date of any Aircraft, and subsequent to its
giving a Delivery Notice therefor, to postpone the Scheduled Delivery Date or
Funding Date of such Aircraft so as to enable the Company to change its election
to treat such Aircraft as a Leased Aircraft or an Owned Aircraft by written
notice of such postponement to the other parties hereto. The Company shall
subsequently give the parties hereto a substitute Delivery Notice complying with
the provisions of Section 1(b) hereof and specifying the new Funding Date for
such postponed Aircraft (which shall be a Business Day occurring before the
Cut-off Date and on which the Escrow Agents shall be entitled to withdraw
Deposits under each of the applicable Deposit Agreements sufficient to enable
each applicable Pass Through Trustee to fund its purchase of the related
Equipment Notes). In addition, the Company shall have the further right to
accept delivery of an Aircraft under the Aircraft Purchase Agreement on the
Delivery Date thereof by utilization of bridge financing of such Aircraft and
promptly thereafter give the parties hereto a Delivery Notice specifying a
Funding Date on or before the later to occur of (i) the date 90 days after the
Issuance Date and (ii) the date 90 days after the Delivery Date of such
Aircraft, but in no event later than the Cut-off Date, and otherwise complying
with the provisions of Section 1(b) hereof. All other terms and conditions of
this Note Purchase Agreement shall apply to the financing of any such Aircraft
on the Funding Date or re-scheduled Funding Date therefor except (i) the Funding
Date or re-scheduled Funding Date shall be deemed the Delivery Date of such
Aircraft for all purposes of this Section 1, (ii) the related Financing
Agreements shall be amended to reflect the original delivery of such Aircraft to
the Company, (iii) where the Company owns the Aircraft under the bridge
financing, the related Financing Agreements shall be amended to reflect the
seller of such Aircraft, and the recipient of payment of the purchase price
therefor, as the Company, and (iv) in the case of a Leased Aircraft, the
Purchase Agreement
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Assignment shall be modified to eliminate the assignment of the right to
purchase from the Manufacturer.
(f) The Company shall have no liability for the failure of the
Pass Through Trustees to purchase Equipment Notes with respect to any Aircraft
or Substitute Aircraft, other than the Company's obligation, if any, to pay the
Deposit Make-Whole Premium pursuant to Section 4(a)(i) of this Agreement.
(g) If (i) the Scheduled Delivery Date for any Aircraft is delayed
(x) more than 30 days beyond the last day of the month set forth opposite such
Aircraft under the heading "Scheduled Delivery Month" in Schedule I-A hereto or
(y) beyond September 29, 2002, or (ii) as a result of a downgrading of the
Company's corporate credit ratings, GECC has elected to exercise its contractual
rights not to act as an Owner Participant with respect to a GE Aircraft and
pursuant to the separate financing agreement between the Company and GECC, the
Company will not own or lease such GE Aircraft, the Company may identify, as a
substitute therefor, a Boeing aircraft of the same model as the Aircraft to be
replaced, which shall have the same specification and the same or higher
appraised value as the Aircraft to be replaced and shall be, or shall have been,
delivered in the same year as the Aircraft to be replaced was scheduled to be
delivered (a "Substitute Aircraft"), so long as (A) such financing occurs no
later than the Cut-off Date, (B) after giving effect thereto such substitution
does not vary the Mandatory Economic Terms and (C) the Company shall obtain
Rating Agency Confirmation in respect of the replacement of any Aircraft by a
Substitute Aircraft. Upon the satisfaction of the conditions set forth above
with respect to a Substitute Aircraft, the Aircraft to be replaced shall cease
to be subject to this Agreement and all rights and obligations of the parties
hereto concerning such Aircraft shall cease, and such Substitute Aircraft shall
be deemed to be an "Aircraft" and thereafter be subject to the terms and
conditions of this Agreement to the same extent as such Aircraft.
(h) The parties agree that if, in connection with the delivery
and/or financing of an Aircraft or a Substitute Aircraft, any Owner Participant
who is to be a party to any Lease Financing Agreement shall not be a "citizen of
the United States" within the meaning of Section 40102(a)(15) of the Act, then
the applicable Lease Financing Agreements shall be modified, consistent with the
Mandatory Document Terms, to require such Owner Participant to enter into a
voting trust, voting powers or similar arrangement satisfactory to the Company
that (A) enables such Aircraft to be registered in the United States of America
and (B) complies with the FAA regulations issued under the Act applicable
thereto.
(i) Anything herein to the contrary notwithstanding, (i) the
Company shall not have the right, and shall not be entitled, at any time to
request the issuance of Equipment Notes of any series to any Pass Through
Trustee in an aggregate principal amount in excess of the amount of the Deposits
then available for withdrawal by the Escrow Agent under and in accordance with
the provisions of the related Deposit Agreement; and (ii) if any Aircraft is not
delivered and financed by the Company under the Financing Agreements in its
respective Scheduled Delivery Month as set forth in Schedule I hereto then the
Company shall use reasonable efforts to assure that the aggregate amortization
schedule of the Equipment Notes
6
with respect to such Aircraft will correspond as closely as reasonably
practicable to the aggregate amortization schedule set forth in Schedule VII
hereto.
(j) Notwithstanding the foregoing provisions of this Section 1,
(i) the Company shall have the right, with respect to any Owned Aircraft, to
enter into the transactions described in Section 8.3 of the relevant Owned
Aircraft Participation Agreement (a "Sale/Leaseback Transaction"), subject to
the restrictions set forth therein, and (ii) the Company shall have the right,
with respect to any Leased Aircraft, to enter into the transactions described in
Section 2.11 of the relevant Leased Aircraft Indenture, in each case involving
assumption and release of the obligations of the Company or the Owner Trustee,
subject to the restrictions set forth therein.
Notwithstanding the foregoing clauses (i) and (ii), the Company
shall not have the right to enter into either such transaction referred to
therein, unless the Company (a) either (i) causes to be delivered to the Loan
Trustee an opinion of counsel reasonably satisfactory to the Loan Trustee to the
effect that the Certificateholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such assumption and release and will
be subject to Federal income tax in the same amounts, in the same manner and at
the same time as would have been the case if such assumption and release had not
occurred or (ii) causes to be delivered to the Loan Trustee an opinion of
counsel to the effect that the Certificateholders should not recognize income,
gain or loss for Federal income tax purposes as a result of such assumption and
release and should be subject to Federal income tax in the same amounts, in the
same manner and at the same time as would have been the case if such assumption
and release had not occurred and provides an indemnification in favor of the
Certificateholders in form and substance reasonably satisfactory to the Pass
Through Trustees, (b) causes to be delivered to the Loan Trustee an opinion of
counsel reasonably satisfactory to the Loan Trustee that the Pass Through Trusts
will not be subject to Federal income taxation as a result of such assumption
and release and (c) obtains written confirmation from the Rating Agency that
such transaction will not result in (i) a reduction of the rating for any Class
of Certificates below the then current rating for such Class of Certificates or
(ii) a withdrawal or suspension of the rating of any Class of Certificates. In
addition, the Company agrees to otherwise comply with the provisions of Sections
1(c) and 2 hereof in connection with any Sale/Leaseback Transaction, or an
assumption of the Equipment Notes, as the case may be.
SECTION 2. Conditions Precedent. The obligation of the Pass
Through Trustees to enter into, and to cause the Subordination Agent to enter
into, any Participation Agreement as directed pursuant to a Delivery Notice and
to perform its obligations thereunder is subject to satisfaction of the
following conditions:
1. no Triggering Event shall have occurred; and
2. the Company shall have delivered a certificate to each such
Pass Through Trustee and each Liquidity Provider stating that (i) such
Participation Agreement and the other Financing Agreements to be entered into
pursuant to such Participation Agreement do not vary
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the Mandatory Economic Terms and contain the Mandatory Document Terms and (ii)
any modification of such Financing Agreements from the forms thereof attached to
this Agreement does not adversely affect the Certificateholders, and such
certification shall be true and correct.
Anything herein to the contrary notwithstanding, the obligation of
each Pass Through Trustee to purchase Equipment Notes shall terminate on the
Cut-off Date.
SECTION 3. Representations and Warranties. (a) The Company and the
Guarantor represent and warrant that:
(i) each of the Company and Guarantor is duly incorporated,
validly existing and in good standing under the laws of the State
of Indiana and has the full corporate power, authority and legal
right under the laws of the State of Indiana to execute and
deliver this Agreement, the Delayed Funding Implementation
Agreement and each Financing Agreement to which it will be a party
and to carry out the obligations of the Company and Guarantor
under this Agreement, the Delayed Funding Implementation Agreement
and each Financing Agreement to which it will be a party;
(ii) the execution and delivery by the Company and Guarantor
of this Agreement and the Delayed Funding Implementation Agreement
and the performance by each of the Company and Guarantor of its
obligations under this Agreement and the Delayed Funding
Implementation Agreement have been duly authorized by the Company
and Guarantor and will not violate its Articles of Incorporation
or by-laws or the provisions of any indenture, mortgage, contract
or other agreement to which it is a party or by which it is bound;
(iii) each of this Agreement and the Delayed Funding
Implementation Agreement constitutes the legal, valid and binding
obligation of each of the Company and Guarantor, enforceable
against it in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether considered
in a proceeding at law or in equity; and
(iv) the Company is a "citizen of the United States" as
defined in Section 40102 of the Act.
(b) WTC represents and warrants that:
(i) WTC is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is a "citizen
of the United States" as defined in Section 40102 of the Act, and
has the full corporate power, authority and legal right under the
laws of the State of Delaware and the United States of
8
America pertaining to its banking, trust and fiduciary powers to
execute and deliver this Agreement, the Delayed Funding
Implementation Agreement and each Financing Agreement to which it
will be a party and to carry out the obligations of WTC, in its
capacity as Subordination Agent, Pass Through Trustee or Paying
Agent, as the case may be, under this Agreement, the Delayed
Funding Implementation Agreement and each Financing Agreement to
which it will be a party;
(ii) the execution and delivery by WTC, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, of this Agreement and the Delayed Funding
Implementation Agreement and the performance by WTC, in its
capacity as Subordination Agent, Pass Through Trustee or Paying
Agent, as the case may be, of its obligations under this Agreement
and the Delayed Funding Implementation Agreement have been duly
authorized by WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, and will not
violate its articles of association or by-laws or the provisions
of any indenture, mortgage, contract or other agreement to which
it is a party or by which it is bound; and
(iii) each of this Agreement and the Delayed Funding
Implementation Agreement constitutes the legal, valid and binding
obligations of WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, enforceable
against it in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether considered
in a proceeding at law or in equity.
(c) The Pass Through Trustee hereby confirms to each of the
other parties hereto that its representations and warranties set forth in
Section 7.14 of each Pass Through Trust Agreement are true and correct as of the
date hereof.
(d) The Subordination Agent represents and warrants that:
(i) the Subordination Agent is duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, and has the full corporate power, authority and legal
right under the laws of the State of Delaware and the United
States of America pertaining to its banking, trust and fiduciary
powers to execute and deliver this Agreement, the Delayed Funding
Implementation Agreement and each Financing Agreement to which it
is or will be a party and to perform its obligations under this
Agreement, the Delayed Funding Implementation Agreement and each
Financing Agreement to which it is or will be a party;
9
(ii) each of this Agreement and the Delayed Funding
Implementation Agreement has been duly authorized, executed and
delivered by the Subordination Agent; each of this Agreement and
the Delayed Funding Implementation Agreement constitutes the
legal, valid and binding obligations of the Subordination Agent
enforceable against it in accordance with its terms, except as the
same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance by the
Subordination Agent of this Agreement or the Delayed Funding
Implementation Agreement contravenes any law, rule or regulation
of the State of Delaware or any United States of America
governmental authority or agency regulating the Subordination
Agent's banking, trust or fiduciary powers or any judgment or
order applicable to or binding on the Subordination Agent and do
not contravene the Subordination Agent's articles of association
or by-laws or result in any breach of, or constitute a default
under, any agreement or instrument to which the Subordination
Agent is a party or by which it or any of its properties may be
bound;
(iv) neither the execution and delivery by the Subordination
Agent of this Agreement or the Delayed Funding Implementation
Agreement nor the consummation by the Subordination Agent of any
of the transactions contemplated hereby or thereby requires the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any
Delaware governmental authority or agency or any federal
governmental authority or agency regulating the Subordination
Agent's banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Subordination Agent
imposed by the State of Delaware or any political subdivision or
taxing authority thereof in connection with the execution,
delivery and performance by the Subordination Agent of this
Agreement or the Delayed Funding Implementation Agreement (other
than franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services
rendered in connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities), and
there are no Taxes payable by the Subordination Agent imposed by
the State of Delaware or any political subdivision thereof in
connection with the acquisition, possession or ownership by the
Subordination Agent of any of the Equipment Notes (other than
franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services
rendered in connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities); and
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(vi) there are no pending or threatened actions or
proceedings against the Subordination Agent before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect the
ability of the Subordination Agent to perform its obligations
under this Agreement or the Delayed Funding Implementation
Agreement.
(e) The Escrow Agent represents and warrants that:
(i) the Escrow Agent is a national banking association duly
incorporated, validly existing and in good standing under the laws
of the United States of America and has the full corporate power,
authority and legal right under the laws of the United States of
America pertaining to its banking, trust and fiduciary powers to
execute and deliver this Agreement, the Delayed Funding
Implementation Agreement, each Deposit Agreement and each Escrow
and Paying Agent Agreement (collectively, the "Escrow Agent
Agreements") and to carry out the obligations of the Escrow Agent
under each of the Escrow Agent Agreements;
(ii) the execution and delivery by the Escrow Agent of each
of the Escrow Agent Agreements and the performance by the Escrow
Agent of its obligations hereunder and thereunder have been duly
authorized by the Escrow Agent and will not violate its articles
of association or by-laws or the provisions of any indenture,
mortgage, contract or other agreement to which it is a party or by
which it is bound; and
(iii) each of the Escrow Agent Agreements constitutes the
legal, valid and binding obligations of the Escrow Agent
enforceable against it in accordance with its terms, except as the
same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity.
(f) The Paying Agent represents and warrants that:
(i) the Paying Agent is duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and
has the full corporate power, authority and legal right under the
laws of the United States of America pertaining to its banking,
trust and fiduciary powers to execute and deliver this Agreement,
the Delayed Funding Implementation Agreement and the Escrow and
Paying Agent Agreement (collectively, the "Paying Agent
Agreements") and to carry out the obligations of the Paying Agent
under each of the Paying Agent Agreements;
(ii) the execution and delivery by the Paying Agent of each
of the Paying Agent Agreements and the performance by the Paying
Agent of its
11
obligations hereunder and thereunder have been duly authorized by
the Paying Agent and will not violate its articles of association
or by-laws or the provisions of any indenture, mortgage, contract
or other agreement to which it is a party or by which it is bound;
and
(iii) each of the Paying Agent Agreements constitutes the
legal, valid and binding obligations of the Paying Agent
enforceable against it in accordance with its terms, except as the
same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity.
SECTION 4. Covenants. (a) The Company and the Guarantor each
covenant with each of the other parties hereto as follows.
(i) On the date that the Depositary is obligated to pay the
amount of a Prepayment Withdrawal or the Final Withdrawal to the Paying
Agent pursuant to a Deposit Agreement relating to any Trust, the Company
shall pay to the Pass Through Trustee of such Trust no later than 12:30
p.m. (New York time) an amount equal to the Deposit Make-Whole Premium, if
any, in respect of such Prepayment Withdrawal or Final Withdrawal amount.
(ii) Subject to Section 4(a)(iv) of this Agreement, the
Company shall at all times maintain its corporate existence and shall not
wind-up, liquidate or dissolve or take any action, or fail to take any
action, that would have the effect of any of the foregoing.
(iii) The Company shall at all times remain a U.S. Air
Carrier (as defined in the Financing Agreements) and shall at all times be
otherwise certificated and registered to the extent necessary to entitle
(i) in the case of Leased Aircraft, the Owner Trustee (and the Loan
Trustee as assignee of the Owner Trustee's rights under each Lease) to the
rights afforded to lessors of aircraft equipment under Section 1110 and
(ii) in the case of Owned Aircraft, the Loan Trustee to the rights
afforded to secured parties of aircraft equipment under Section 1110.
(iv) Sections 5.01 and 5.02 of each Pass Through Trust
Agreement are hereby incorporated by reference herein, mutatis mutandis.
(v) The Company agrees to provide written notice to (i) each
of the parties hereto of the occurrence of the Cut-off Date no later than
one Business Day after the date thereof and (ii) each of the parties
hereto and the Depositary of any adjustments in the interest rate
applicable to the Equipment Notes and the Certificates pursuant to the
Registration Rights Agreement.
12
(vi) The Company shall not issue or cause or permit to be
issued Series C Equipment Notes pursuant to any Owned Aircraft Indenture
or Leased Aircraft Indenture unless it shall have obtained written
confirmation from the Rating Agency that the issuance of such Series C
Equipment Notes will not result in (i) a reduction of the rating for any
Class of Certificates below the then current rating for such Class of
Certificates or (ii) a withdrawal or suspension of the rating of any Class
of Certificates. If such conditions to the issuance of Series C Equipment
Notes are satisfied, the parties hereto agree to enter into such
amendments and modifications to the Intercreditor Agreement, each Pass
Through Trust Agreement and the other Financing Agreements as shall be
reasonably requested by the Company to facilitate the issuance of the same
and any Series C Pass Through Certificates; provided that such amendments
and modifications (including those described in the following sentence)
are reasonably satisfactory to the Purchasers. The Company will (i) cause
the Indenture under which any Series C Equipment Notes are issued to
provide for the subordination of the Series C Equipment Notes to the
Series B Equipment Notes, the Series A Equipment Notes and the Liquidity
Obligations (as defined in the Intercreditor Agreement) in the same manner
as the Series B Equipment Notes are subordinated to the Series A Equipment
Notes and the Liquidity Obligations and (ii) if Series C Equipment Notes
are initially issued to other than the pass through trustee for the Class
C Certificates (as defined in the Intercreditor Agreement), (A) cause such
Series C Equipment Notes to be subject to the provisions of the
Intercreditor Agreement that allow for the "Controlling Party" (as defined
in the Intercreditor Agreement), during the continuance of an "Indenture
Default" (as defined in the Intercreditor Agreement), to direct the Loan
Trustee in taking action under the applicable Indenture and (B) cause the
Indenture under which such Series C Equipment Notes are issued to include,
in substance, the provisions set forth in Exhibit D to this Agreement.
(vii) On the Issuance Date, the Depositary's short term
unsecured rating shall be A-1 from Standard & Poor's and P-1 from Moody's.
If the Depositary's short term rating shall at any time fall below P-1
from Moody's or A-1 from Standard & Poor's, the Company shall, within 15
days of such occurrence, cause the Depositary to be replaced with a
depositary bank (a "Replacement Depositary") on the following terms and
conditions.
(I) The Replacement Depositary must have a short-term
unsecured rating of at least A-1 from Standard & Poor's and P-1
from Moody's and the Company shall have obtained and each
Purchaser shall have received written confirmation from the Rating
Agency that such replacement will not cause a reduction of any
rating then in effect for any Class of Certificates by the Rating
Agency (without regard to any downgrading of any rating of the
Depositary being replaced).
(II) The Company shall pay all fees, expenses and other
amounts then owing to the replaced Depositary.
13
(III) The Company shall cause the Escrow Agent and the
Replacement Depositary to enter into a Replacement Deposit
Agreement for each Class of Certificates and shall cause the
Replacement Depositary to deliver to the Company, the Rating
Agency and the Purchaser of such Class, legal opinions and other
closing documentation substantially similar in scope and substance
as those that were delivered by the Depositary being replaced in
connection with the execution and delivery of the Deposit
Agreement being replaced.
(IV) Upon satisfaction of the foregoing conditions, the
Company shall instruct each Pass Through Trustee, and each Pass
Through Trustee agrees, to execute and deliver to the Escrow Agent
a duly completed Withdrawal Certificate together with a Notice of
Replacement Withdrawal (as defined in the Escrow and Paying Agent
Agreements).
(V) Each of the parties hereto agrees, at the Company's
request and expense, to enter into any amendments to this
Agreement, the Escrow and Paying Agent Agreements and any other
Operative Agreements as may be necessary or desirable to give
effect to the replacement of the Depositary with the Replacement
Depositary and the replacement of the Deposit Agreements with the
Replacement Deposit Agreements.
(VI) Upon the execution and delivery of the Replacement
Deposit Agreements, the Replacement Depositary shall be deemed to
be the Depositary with all of the rights and obligations of the
Depositary hereunder and under the other Operative Agreements and
the Replacement Deposit Agreements shall be deemed to be the
Deposit Agreements hereunder and under the other Operative
Agreements, except that the obligations of the replaced Depositary
under the last two sentences of Section 2.2 of its Deposit
Agreements or Section 2.2(a) of its Delayed Deposit Agreements
shall remain in full force and effect notwithstanding the
execution and delivery of the Replacement Deposit Agreements.
(b) WTC, in its individual capacity, covenants with each of the
other parties to this Agreement that it will, immediately upon obtaining
knowledge of any facts that would cast doubt upon its continuing status as a
"citizen of the United States" as defined in Section 40102 of the Act and
promptly upon public disclosure of negotiations in respect of any transaction
which would or might adversely affect such status, notify in writing all parties
hereto of all relevant matters in connection therewith. Upon WTC giving any such
notice, WTC shall, subject to Section 8.02 of any Indenture then entered into,
resign as Loan Trustee in respect of such Indenture.
SECTION 5. Notices. Unless otherwise specifically provided herein,
all notices, requests, demands, authorizations, directions, consents, waivers
and other communications required or permitted to be made, given, furnished or
filed hereunder by the terms hereof shall be
14
in English and in writing, and any such communication shall become effective
upon being delivered personally or, if promptly confirmed by mail, when received
by facsimile or other written telecommunication unless received outside of the
business hours, in which case on the following Business Day, addressed to such
party hereto at its address or facsimile number set forth below the signature of
such party on the signature pages of this Agreement (or such other address as
notified by such party to the other parties hereto).
SECTION 6. Expenses. (a) The Company and the Guarantor jointly and
severally agree to pay to the Subordination Agent when due for application in
accordance with the Intercreditor Agreement an amount or amounts equal to the
fees payable to the relevant Liquidity Provider under Section 2.3 of each
Liquidity Facility and the related Fee Letter (as defined in the Intercreditor
Agreement) multiplied by a fraction the numerator of which shall be the then
outstanding aggregate amount of the Deposits under the Deposit Agreements and
the denominator of which shall be the sum of (x) the then outstanding aggregate
principal amount of the Series A Equipment Notes and Series B Equipment Notes
issued under all of the Indentures and (y) the then outstanding aggregate amount
of the Deposits under the Deposit Agreements.
(b) So long as no Equipment Notes have been issued in respect of
any Aircraft relating to any Pass Through Trust Agreement, the Company and the
Guarantor jointly and severally agree to pay (i) to the Subordination Agent when
due (A) the amount equal to interest on any Downgrade Advance (other than any
Applied Downgrade Advance) payable under Section 3.7 of the Liquidity Facility
relating to such Pass Through Trust Agreement minus Investment Earnings while
such Downgrade Advance shall be outstanding, (B) the amount equal to interest on
any Non-Extension Advance (other than any Applied Non-Extension Advance) payable
under Section 3.7 of each such Liquidity Facility minus Investment Earnings
while such Non-Extension Advance shall be outstanding and (C) any other amounts
owed to the Liquidity Provider by the Subordination Agent as borrower under each
such Liquidity Facility (other than amounts due as repayment of advances
thereunder or as interest on such advances, except to the extent payable
pursuant to clause (A) or (B)), (ii) all compensation and reimbursement of
reasonable expenses, disbursements and advances payable by the Company under
each such Pass Through Trust Agreement, (iii) all compensation and reimbursement
of reasonable expenses and disbursements payable to the Subordination Agent
under the Intercreditor Agreement except with respect to any income or franchise
taxes incurred by the Subordination Agent in connection with the transactions
contemplated by the Intercreditor Agreement, and (iv) in the event the Company
requests any amendment to any Operative Agreement, all reasonable fees and
expenses (including, without limitation, fees and disbursements of counsel) of
the Escrow Agent, the Paying Agent in connection therewith. For purposes of this
Section 6(b), the terms "Applied Downgrade Advance", "Applied Non-Extension
Advance", "Downgrade Advance", "Investment Earnings" and "Non-Extension Advance"
shall have the meanings specified in each Liquidity Facility.
SECTION 7. Further Assurances. Each party hereto shall duly
execute, acknowledge and deliver, or shall cause to be executed, acknowledged
and delivered, all such
15
further agreements, instruments, certificates or documents, and shall do and
cause to be done such further acts and things, in any case, as any other party
hereto shall reasonably request in connection with its administration of, or to
carry out more effectually the purposes of, or to better assure and confirm unto
it the rights and benefits to be provided under, this Agreement.
SECTION 8. Miscellaneous. (a) Provided that the transactions
contemplated hereby have been consummated, and except as otherwise provided for
herein, the representations, warranties and agreements herein of the Company,
the Subordination Agent, the Escrow Agent, the Paying Agent and the Pass Through
Trustee, and the Company's, the Subordination Agent's, the Escrow Agent's, the
Paying Agent's and the Pass Through Trustee's obligations under any and all
thereof, shall survive the expiration or other termination of this Agreement and
the other agreements referred to herein.
(b) This Agreement may be executed in any number of counterparts
(and each of the parties hereto shall not be required to execute the same
counterpart). Each counterpart of this Agreement, including a signature page
executed by each of the parties hereto, shall be an original counterpart of this
Agreement, but all of such counterparts together shall constitute one
instrument. Except as provided in Section 8(c) below, neither this Agreement nor
any of the terms hereof may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement, waiver
or modification is sought. The index preceding this Agreement and the headings
of the various Sections of this Agreement are for convenience of reference only
and shall not modify, define, expand or limit any of the terms or provisions
hereof. The terms of this Agreement shall be binding upon, and shall inure to
the benefit of, the Company and its successors and permitted assigns, the Pass
Through Trustee and its successors as Pass Through Trustee (and any additional
trustee appointed) under any of the Pass Through Trust Agreements, the Escrow
Agent and its successors as Escrow Agent under the Escrow and Paying Agent
Agreements, the Paying Agent and its successors as Paying Agent under the Escrow
and Paying Agent Agreement and the Subordination Agent and its successors as
Subordination Agent under the Intercreditor Agreement.
(c) Notwithstanding any provision of this Agreement, upon and
simultaneously with the issuance of the Additional Certificates (as defined in
the Delayed Funding Implementation Agreement), this Agreement shall be forthwith
amended as provided in the Delayed Funding Implementation Agreement, without any
need for further action on the part of any party hereto and without any consent
of any of the Certificateholders.
(d) This Agreement is not intended to, and shall not, provide any
person not a party hereto (other than the Purchasers and each of the
beneficiaries of Section 6 hereof) with any rights of any nature whatsoever
against any of the parties hereto, and no person not a party hereto (other than
the Purchasers and each of the beneficiaries of Section 6 hereof) shall have any
right, power or privilege in respect of, or have any benefit or interest arising
out of, this Agreement. To the extent that this Agreement expressly confers
upon, gives or grants any right, power, privilege, benefit, interest, remedy or
claim to any of the beneficiaries of Section 6 hereof (including, but
16
not limited to rights, powers, privileges, benefits, interests, remedies and
claims under Section 6), each such party is hereby recognized as a third party
beneficiary hereunder and may enforce any such right, power, privilege, benefit,
interest, remedy or claim.
SECTION 9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THIS AGREEMENT
IS BEING DELIVERED IN THE STATE OF NEW YORK.
SECTION 10. Subordination Agent's Liability. Notwithstanding
anything contained herein to the contrary, it is expressly understood and agreed
by the parties hereto that (a) this Agreement is executed and delivered by
Wilmington Trust Company in connection with its role as Pass Through Trustee and
Subordination Agent, not individually or personally but solely as Pass Through
Trustee and Subordination Agent, in the exercise of the powers and authority
conferred and vested in it under the Pass Through Trust Agreement and the
Intercreditor Agreement (b) each of the representations, undertakings and
agreements herein made on the part of the Pass Through Trustee or Subordination
Agent is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
for binding only the Pass Through Trustee or Subordination Agent, as the case
may be, and (c) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or expenses of the Pass
Through Trustee or Subordination Agent, or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Pass Through Trustee or Subordination Agent under this Agreement or the
other related documents.
17
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
AMERICAN TRANS AIR, INC.
By
---------------------------------
Name:
Title:
Address: 7337 West Washington Street
Indianapolis, Indiana 46231
Attention: Treasurer
Facsimile: (317) 240-7091
AMTRAN, INC.,
as Guarantor
By
---------------------------------
Name:
Title:
Address: 7337 West Washington Street
Indianapolis, Indiana 46231
Attention: Treasurer
Facsimile: (317) 240-7091
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as otherwise
provided herein, but solely as Pass Through Trustee
By
---------------------------------
Name:
Title:
Address: Rodney Square North
1100 North Market Street,
Wilmington, Delaware 19890
Attention: Corporate Trust Admin.
Facsimile: (302) 636-4140
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as otherwise
provided herein, but solely as Subordination Agent
By
---------------------------------
Name:
Title:
Address: Rodney Square North
1100 North Market Street,
Wilmington, Delaware 19890
Attention: Corporate Trust Admin.
Facsimile: (302) 636-4140
WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION
as Escrow Agent
By
-----------------------------------------
Name:
Title:
Address: 79 South Main Street, 3rd Floor
Salt Lake City, Utah 84111
Attention: Corporate Trust Department
Facsimile: (801) 246-5053
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as otherwise
provided herein, but solely as Paying Agent
By
---------------------------------
Name:
Title:
Address: Rodney Square North
1100 North Market Street,
Wilmington, Delaware 19890
Attention: Corporate Trust Admin.
Facsimile: (302) 636-4140
SCHEDULE I-A to
Note Purchase Agreement
AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Aircraft Manufacturer's Serial Scheduled Delivery ATA Aircraft/
Aircraft Type Tail Number Number Month GE Aircraft
------------- ----------- ------ ----- -----------
Boeing 737-800 N316TZ 32609 January 2002 ATA Aircraft
Boeing 737-800 N320TZ 32610 April 2002 ATA Aircraft
Boeing 737-800 N322TZ 32611 May 2002 ATA Aircraft
Boeing 737-800 N324TZ 32882 June 2002 GE Aircraft
Boeing 737-800 N325TZ 32884 July 2002 GE Aircraft
SCHEDULE I-B to
Note Purchase Agreement
AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Aircraft Manufacturer's Serial Scheduled Delivery ATA Aircraft/
Aircraft Type Tail Number Number Month GE Aircraft
------------- ----------- ------ ----- -----------
Boeing 737-800 N316TZ 32609 January 2002 ATA Aircraft
Boeing 737-800 N320TZ 32610 April 2002 ATA Aircraft
Boeing 737-800 N322TZ 32611 May 2002 ATA Aircraft
Boeing 737-800 N324TZ 32882 June 2002 GE Aircraft
Boeing 737-800 N325TZ 32884 July 2002 GE Aircraft
Boeing 737-800 N326TZ 32612 October 2002 ATA Aircraft
Boeing 737-800 N327TZ 32613 November 2002 ATA Aircraft
Boeing 737-800 N328TZ 32614 November 2002 ATA Aircraft
Boeing 737-800 N329TZ 32615 December 2002 ATA Aircraft
SCHEDULE II to
Note Purchase Agreement
PASS THROUGH TRUST AGREEMENTS
Pass Through Trust Agreement dated as of the Issuance Date among the Company,
the Guarantor and the Pass Through Trustee in respect of American Trans Air
2002-1A Pass Through Trust.
Pass Through Trust Agreement dated as of the Issuance Date among the Company,
the Guarantor and the Pass Through Trustee in respect of American Trans Air
2002-1B Pass Through Trust.
SCHEDULE III-A to
Note Purchase Agreement
DEPOSIT AGREEMENTS
Deposit Agreement (Class A) dated as of the Issuance Date between the Depositary
and the Escrow Agent.
Deposit Agreement (Class B) dated as of the Issuance Date between the Depositary
and the Escrow Agent.
SCHEDULE III-B to
Note Purchase Agreement
DELAYED DEPOSIT AGREEMENTS
Delayed Deposit Agreement (Class A) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
Delayed Deposit Agreement (Class B) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
SCHEDULE IV to
Note Purchase Agreement
ESCROW AND PAYING AGENT AGREEMENTS
Escrow and Paying Agent Agreement (Class A) dated as of the Issuance Date among
the Escrow Agent, the Purchaser named therein, the Pass Through Trustee and the
Paying Agent.
Escrow and Paying Agent Agreement (Class B) dated as of the Issuance Date among
the Escrow Agent, the Purchaser named therein, the Pass Through Trustee and the
Paying Agent.
SCHEDULE V to
Note Purchase Agreement
MANDATORY DOCUMENT TERMS
The terms "Trust Indenture Form", "Lease Form" and "Participation
Agreement Form" shall have the respective meanings specified in Schedule VI to
the Note Purchase Agreement.
1. May not modify in any material adverse respect the Granting Clause of
the Trust Indenture Form so as to deprive the Note Holders of a first
priority security interest in and mortgage lien on the Aircraft and the
Lease or to eliminate any of the obligations secured thereby or
otherwise modify in any material adverse respect as regards the
interests of the Note Holders, the Subordination Agent, the Liquidity
Providers or the Indenture Trustee or the Loan Trustee, the provisions
of (x) Article II or III or Section 4.02, 4.03, 4.04, 5.02, 5.06,
9.01(b), 10.04, 10.11 or 10.12 of the Leased Aircraft Trust Indenture
Form, (y) Article II or III or IV, Section 5.01, 5.02, 6.02, 10.01(a),
11.04, 11.11 or 11.12 of the Owned Aircraft Trust Indenture Form or (z)
the definition of "Make-Whole Amount" contained in Annex A to the Trust
Indenture Form.
2. May not modify in any material adverse respect as regards the interests
of the Note Holders, the Subordination Agent, the Liquidity Providers or
the Indenture Trustee, the provisions of Section 3.2.1(e), 3.3(c), 4.7,
7.1.1, 10.3.1(d)(2), 13.3, 16, 17.3, 18.3 or 18.7 of the Lease Form or
otherwise modify the terms of the Lease Form so as to deprive the
Indenture Trustee of rights expressly granted to the "Mortgagee"
therein.
3. (a) May not modify in any material adverse respect as regards the
interests of the Note Holders, the Subordination Agent, the Liquidity
Providers or the Indenture Trustee, the provisions of Section 5.1.9,
5.1.10, 5.1.11, 5.1.12, 7.1.5, 7.5, 12, 15.8(a), 15.9 or 15.10 of the
Leased Aircraft Participation Agreement Form, or the provisions of
Section 5.1.2(u) or 10.1.1(a)(4) of the Leased Aircraft Participation
Agreement so as to eliminate the requirement to deliver to the Loan
Participant or the Indenture Trustee, as the case may be, the legal
opinions to be provided to such Persons thereunder (recognizing that the
lawyers rendering such opinions may be changed) or of the provisions of
Section 7.6.11(a)(5) of the Leased Aircraft Participation Agreement Form
as regards the rights of the Indenture Trustee thereunder or the
provisions of Section 5.1.5 so as to deprive the Note Holders of a first
priority security interest as provided therein and mortgage lien on the
Aircraft and the Lease or otherwise modify the terms of the Leased
Aircraft Participation Agreement Form to deprive the Trustees, the
Subordination Agent, the Liquidity Providers or the Indenture Trustee of
any indemnity or right of reimbursement in its favor for Expenses or
Taxes.
(b) May not modify in any material adverse respect as regards the
interests of the Note Holders, the Subordination Agent, the Liquidity
Providers or the Loan Trustee, the provisions of Section 3.1.8, 3.1.9,
3.1.10, 3.1.11, 5.1.5, 5.3, 9, 11.8(a),11.9 or 11.10 of the Owned
Aircraft Participation Agreement Form or the provisions of 3.1.2(i) or
8.3 of the
Owned Aircraft Participation Agreement Form so as to eliminate the
requirement to deliver to the Loan Participant, the Loan Trustee or
Certificateholders, as the case may be, the legal opinions to be
provided to such Persons thereunder (recognizing that the lawyers
rendering such opinions may be changed) or of the provisions of Section
5.4.5(a)(4) of the Owned Aircraft Participation Agreement Form as
regards the rights of the Loan Trustee thereunder or the provisions of
Section 3.1.3 so as to deprive the Noteholders of a first priority
security interest as provided therein and mortgage lien on the Aircraft
or otherwise modify the terms of the Owned Aircraft Participation
Agreement Form to deprive the Trustees, the Subordination Agent, the
Liquidity Providers or the Loan Trustee of any indemnity or right of
reimbursement in its favor for Expenses or Taxes.
4. May not modify, in any material adverse respect as regards the interests
of the Note Holders, the Subordination Agent, the Liquidity Providers,
the Indenture Trustee or the Loan Trustee, the definition of "Deposit
Make-Whole Premium" in Annex A to the Note Purchase Agreement.
Notwithstanding the foregoing, any such Mandatory Document Term may be
modified to correct or supplement any such provision which may be defective or
to cure any ambiguity or correct any mistake, provided that any such action
shall not materially adversely affect the interests of the Note Holders, the
Subordination Agent, the Liquidity Providers, the Indenture Trustee or the Loan
Trustee or the Certificateholders.
SCHEDULE VI to
Note Purchase Agreement
MANDATORY ECONOMIC TERMS
Equipment Notes
Obligor: American Trans Air, Inc. or an Owner Trust
Maximum Principal Amount:
The aggregate original principal amount of all Equipment Notes for all Aircraft
shall not exceed the aggregate face amount of all Certificates issued on the
Issuance Date. The aggregate original principal amount of all Equipment Notes of
any series shall not exceed the aggregate face amount of all Certificates of the
related class issued on the Issuance Date.
Initial loan to aircraft value (with the value of any Aircraft equal to the
value for such Aircraft set forth in the Private Placement Memorandum in
"Summary - The Offering - Secured Promissory Notes and the Aircraft" under the
column "Appraised Base Value"):
Series A: not in excess of 51%
Series B: not in excess of 66%
The loan to aircraft value for each series of Equipment Notes issued in respect
of each Aircraft (computed (i) after aggregating the principal amount of all
series of Equipment Notes that rank senior to the series of Equipment Notes for
which loan to aircraft value is being calculated and (ii) as of the date of the
issuance thereof on the basis of the Assumed Appraised Value of such Aircraft
and the Depreciation Assumption (as defined in the Private Placement Memorandum
in the Glossary) must not exceed as of any Regular Distribution Date thereafter
(assuming no default in the payment of the Equipment Notes) the following
amounts:
Series A: not in excess of 51%
Series B: not in excess of 66%
Initial average life (in years)
Series A: not extend beyond 8 years from the Issuance Date
Series B: not extend beyond 5 years from the Issuance Date
Average life (in years)
As of the Delivery Period Termination Date (or if earlier, the date of
the occurrence of a Triggering Event), the average life of the Class A
Certificates and the Class B Certificates shall not exceed,
respectively, 7.49 to 7.69 years from the Issuance Date, subject to
final reoptimization, and 4 years from the Issuance Date (computed
without regard to the acceleration of any Equipment Notes
and after giving effect to any special distribution on the Certificates
thereafter required in respect of unused Deposits).
Amortization Schedule
The amortization schedule for each Series of Equipment Notes, assuming
the maximum amount thereof in respect of all of the Aircraft are
purchased by the Pass Through Trusts and all Aircraft are delivered as
currently scheduled shall be as set forth in Schedule VII of the Note
Purchase Agreement.
Final Maturity Date
Series A: November 20, 2014
Series B: August 20, 2009
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears)
Series A: 8.328 %
Series B: 0.699 %
Payment Dates: February 20, May 20, August 20 and November 20
Make-Whole Premiums: as provided in Section 1.01 of the forms of Trust
Indenture marked as Exhibit A-3 and C-2 of the Note
Purchase Agreement (the "Trust Indenture Form")
Redemption and Purchase: as provided in Article II of the Trust Indenture Form
Lease
Term: The Base Lease Term shall expire by its terms on or
after final maturity date of the related Series A
Equipment Notes
Lease Payment Dates: February 20, May 20, August 20 and
November 20
Minimum Rent: Basic Rent due and payable on each Payment Date
shall be at least sufficient to pay in full, as of
such Payment Date (assuming timely payment of the
related Equipment Notes prior to such Date), the
aggregate principal amount of scheduled installments
due on the related Equipment Notes outstanding on
such Payment Date together with accrued and unpaid
interest thereon
Supplemental Rent: Sufficient to cover the sums described in clauses (1)
through (6) of such term as defined in Section 1 of
the forms of Leases (the "Lease Form") marked as
Exhibits A-2-1 and A-2-2 of the Note Purchase
Agreement
Stipulated Loss Value: At all times equal to or greater than the then
outstanding principal amount of the related Equipment
Notes plus, for any date other than a Lease Payment
Date, accrued interest thereon
EBO Price: Equal to or greater than the then-current Stipulated
Loss Value
Termination Value: At all times equal to or greater than the then
outstanding principal amount of the related Equipment
Notes plus, for any date other than a Lease Payment
Date, accrued interest thereon
All-risk hull insurance: not less than Stipulated Loss Value, subject to
Lessee's right to self-insure on terms no more
favorable to Lessee in any material respect than
those set forth in Section 11 of the Lease Form
Minimum Liability
Insurance Amount: as set forth in Schedule I of the Lease Form
Past Due Rate: as set forth in Schedule 1 of the Lease Form
Participation Agreement Loan Trustee, Subordination Agent, Liquidity Providers,
Pass Through Trustees, Escrow Agents and Note Holders indemnified against
Expenses and Taxes to the extent set forth in Section 9 of the form of the
Participation Agreement (the "Leased Aircraft Participation Form") marked as
Exhibit A-1 to the Note Purchase Agreement and Section 7 of the form of the
Participation Agreement (the "Owned Aircraft Participation Form") marked as
Exhibit C-1 of the Note Purchase Agreement.
NYDOCS01/804539.17
SCHEDULE VII to
Note Purchase Agreement
AGGREGATE AMORTIZATION SCHEDULE
Class A Class A Class B Class B
Secured Promissory Trust Secured Promissory Trust
Notes Scheduled Expected Notes Scheduled Expected
Payments Pool Payments Pool
Dates of Principal Factor of Principal Factor
- -------------------- --------------------------- -------------------- ---------------------------- -------------------
20-Feb-03 $797,262.60 0.9928635 $249,290.61 0.9919922
20-May-03 813,861.61 0.9855784 255,958.51 0.9837702
20-Aug-03 144,563.13 0.9842844 336,071.96 0.9729748
20-Nov-03 0.00 0.9842844 492,633.99 0.9571503
20-Feb-04 3,419,206.66 0.9536781 6,125,149.72 0.7603962
20-Feb-05 3,419,397.00 0.9230702 7,237,877.00 0.5278988
20-Feb-06 3,419,397.00 0.8924622 8,389,428.19 0.2584109
20-Feb-07 5,735,134.56 0.8411255 7,305,552.92 0.0237396
20-Feb-08 13,528,939.00 0.7200243 739,037.10 0.0000000
20-Feb-09 15,540,047.35 0.5809212 0.00 0.0000000
20-Feb-10 16,742,757.16 0.4310523 0.00 0.0000000
20-May-10 55,528.86 0.4305552 0.00 0.0000000
20-Aug-10 56,684.98 0.4300478 0.00 0.0000000
20-Nov-10 57,865.16 0.4295298 0.00 0.0000000
20-Feb-11 17,094,882.41 0.2765089 0.00 0.0000000
20-May-11 414,985.36 0.2727943 0.00 0.0000000
20-Aug-11 423,625.36 0.2690023 0.00 0.0000000
20-Nov-11 432,445.23 0.2651314 0.00 0.0000000
20-Feb-12 17,477,261.25 0.1086877 0.00 0.0000000
20-May-12 805,325.33 0.1014790 0.00 0.0000000
20-Aug-12 822,092.20 0.0941202 0.00 0.0000000
20-Nov-12 839,208.17 0.0866083 0.00 0.0000000
20-Feb-13 9,675,529.62 0.0000000 0.00 0.0000000
ANNEX A to
Note Purchase Agreement
DEFINITIONS
"Act" means 49 U.S.C. (ss.ss.) 40101-46507.
"Affiliate" means, with respect to any person, any other person directly or
indirectly controlling, controlled by or under common control with such person.
For purposes of this definition, "control" means the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such person, whether through the ownership of voting securities or by contract
or otherwise and "controlling," "controlled by" and "under common control with"
have correlative meanings.
"Aircraft" means, prior to the Delayed Funding Date, the Boeing 737-800 aircraft
listed in Schedule I-A hereto and, on and after the Delayed Funding Date, the
Boeing 737-800 aircraft listed in Schedule I-B hereto (in each case, together
with any Substitute Aircraft substituted therefor in accordance with Section
1(g).
"Aircraft Purchase Agreement" means either the ATA Aircraft Purchase Agreement
or the GE Aircraft Purchase Agreement.
"Assumed Amortization Schedule" means Schedule VII to the Note Purchase
Agreement, as such schedule may be amended from time to time in accordance with
the Note Purchase Agreement.
"ATA Aircraft" means any Aircraft to be delivered under the ATA Aircraft
Purchase Agreement.
"ATA Aircraft Purchase Agreement" means the Purchase Agreement No. 2262 dated
June 30, 2000, between the Company and the Manufacturer, as amended (including
all exhibits thereto, together with all letter agreements entered into that by
their terms constitute part of any such Purchase Agreement).
"Average Life Date" means, for any Equipment Note, the date which follows the
time of determination by a period equal to the Remaining Weighted Average Life
of such Equipment Note.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. (Section)
101 et seq.
"Business Day" means any day, other than a Saturday, Sunday or other day on
which commercial banks are authorized or required by law to close in New York,
New York, Indianapolis, Indiana, Wilmington, Delaware or Salt Lake City, Utah.
"Certificate" has the meaning set forth in the third recital to the Note
Purchase Agreement.
"Certificateholder" means the Person in whose name a Certificate is registered
in the Register.
"Class" means the class of Certificates issued by each Pass Through Trust.
"Class A Certificates" has the meaning specified in the Intercreditor Agreement.
"Class B Certificates" has the meaning specified in the Intercreditor Agreement.
"Company" means American Trans Air, Inc., an Indiana corporation.
"Corporate Trust Office" with respect to any Pass Through Trustee or any Loan
Trustee, means the office of such trustee in the city at which at any particular
time its corporate trust business shall be principally administered.
"Cut-off Date" means the earlier of (a) the day after the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
"Delayed Deposit Agreements" means the Delayed Deposit Agreements set forth as
Schedule III-B hereto, as amended, supplemented or otherwise modified from time
to time in accordance with their respective terms and, from and after the
transfer of the Deposits to a Replacement Depositary, shall refer to the
corresponding Replacement Deposit Agreements between the Escrow Agent and the
Replacement Depositary.
"Delayed Funding Date" has the meaning set forth in the Delayed Funding
Implementation Agreement.
"Delayed Funding Implementation Agreement" has the meaning set forth in the
fifth recital to the Note Purchase Agreement.
"Delivery Date" means the Business Day on which an Aircraft is delivered to and
accepted by the Company or the Owner Trustee, as the case may be.
"Delivery Period Termination Date" means the earlier of (a) September 29, 2002
and (b) the date on which Equipment Notes with respect to all Aircraft (or
Substitute Aircraft in lieu thereof) have been purchased by the Trusts in
accordance with the Note Purchase Agreement.
"Deposit" has the meaning set forth in the respective Deposit Agreement.
"Deposit Agreements" means (i) prior to the Delayed Funding Date (as defined in
the Delayed Funding Implementation Agreement), the Deposit Agreements set forth
on Schedule III-A hereto, as amended, supplemented or otherwise modified from
time to time in accordance with its respective terms, and, from and after the
transfer of the Deposits to a Replacement Depositary, shall refer to the
corresponding Replacement Deposit Agreements between the Escrow Agent and
the Replacement Depositary, and (ii) on and after the Delayed Funding Date, the
Deposit Agreements set forth on Schedule III-A hereto (to the extent of any
payment to be made by the Depositary thereunder on or after the Delayed Funding
Date) and the Delayed Deposit Agreements.
"Deposit Make-Whole Premium" means, with respect to the distribution of unused
Deposits to holders of any Class of Certificates, as of any date of
determination, (i) in the case of the Final Withdrawal of such unused Deposits,
subject to the proviso of this definition, an amount equal to the excess, if
any, of (a) the present value of the excess of (A) the scheduled payment of
principal and interest to maturity of the related series of Equipment Notes,
assuming the maximum principal amount thereof (the "Maximum Amount") minus any
Non-Premium Amount applicable to such Class of Certificates and such Class of
Certificates' Pro Rata Share of the Par Redemption Amount were issued, on each
remaining Regular Distribution Date for such Class under the Assumed
Amortization Schedule (assuming for purposes of giving effect to the subtraction
above, if such Class of Certificates' Pro Rata Share is greater than zero, that
each scheduled payment of principal on such Schedule is reduced in an amount
equal to such scheduled payment multiplied by a fraction, the numerator of which
shall be the Pro Rata Share and the denominator of which shall be the Maximum
Amount) over (B) the scheduled payment of principal and interest to maturity of
the Equipment Notes actually acquired by the Pass Through Trustee for such Class
on each such Regular Distribution Date, such present value computed by
discounting such excess on a quarterly basis on each Regular Distribution Date
(assuming a 360-day year of twelve 30-day months) using a discount rate equal to
the Treasury Yield plus 3.105% in the case of the Class A Certificates and
6.402% in the case of the Class B Certificates over (b) the amount of such
unused Deposits to be distributed to the holders of such Certificates minus any
Non-Premium Amount applicable to such Class of Certificates and such Class of
Certificates' Pro Rata Share of the Par Redemption Amount (the remainder of such
subtraction, the "Net Deposits") plus accrued and unpaid interest on the Net
Deposits to but excluding such date of determination from and including the
preceding Regular Distribution Date (or if such date of determination precedes
the first Regular Distribution Date, the Issuance Date), and (ii) in the case of
a Prepayment Withdrawal of such unused Deposits, an amount equal to the excess,
if any, of (a) the present value of the scheduled payment of principal and
interest to maturity of the related series of Equipment Notes in the principal
amount equal to the amount of such unused Deposits on each remaining Regular
Distribution Date for such Class under the Assumed Amortization Schedule (such
present value being computed by discounting such principal and interest payments
on a quarterly basis on each Regular Distribution Date (assuming a 360-day year
of twelve 30-day months) using a discount rate equal to the Treasury Yield) over
(b) the amount of such unused Deposits to be distributed to the holders of such
Certificates plus accrued and unpaid interest on such Deposits to but excluding
such date of determination from and including the preceding Regular Distribution
Date (or if such date of determination precedes the first Regular Distribution
Date, the Issuance Date); provided that the amount of Deposit Make-Whole Premium
payable with respect to a portion of any unused Deposits to be distributed as
the Final Withdrawal shall be calculated in accordance with clause (ii) above as
if the distribution of such portion of unused Deposits constituted a Prepayment
Withdrawal, if the conditions specified in Section 2.02(b) of the Pass Through
Trust Agreements are satisfied with
respect to such portion of unused Deposits and the Company could have
distributed such portion of unused Deposits as a Prepayment Withdrawal .
"Depositary" IntesaBCI, S.p.A, New York Branch, and, from and after the transfer
of the Deposits to a Replacement Depositary, shall mean such Replacement
Depositary.
"Equipment Notes" means and includes any equipment notes issued under any
Indenture in the form specified in Section 2.01 thereof (as such form may be
varied pursuant to the terms of such Indenture) and any Equipment Note issued
under any Indenture in exchange for or replacement of any other Equipment Note.
"Escrow Agent" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"Escrow and Paying Agent Agreement" has the meaning set forth in the fifth
recital to the Note Purchase Agreement.
"FAA" means the Federal Aviation Administration of the United States of America.
"Final Withdrawal" with respect to each Escrow and Paying Agent Agreement, has
the meaning set forth in Section 1.02 thereof.
"Financing Agreements" means, collectively, the Lease Financing Agreements and
the Owner Financing Agreements.
"Funding Date" has the meaning set forth in Section 1(b) (ii) of the Note
Purchase Agreement.
"GE Aircraft" means any Aircraft to be delivered under the GE Aircraft Purchase
Agreement.
"GE Aircraft Purchase Agreement" means the Purchase Agreement No. 1905 dated
April 25, 1996 between GECC and the Manufacturer, as amended (including all
exhibits thereto, together with all letter agreements entered into that by the
terms constitute part of any such Purchase Agreement).
"GECC" means General Electric Capital Corporation, a Delaware corporation.
"Government Entity" means (a) any federal, state, provincial or similar
government, and any body, board, department, commission, court, tribunal,
authority, agency or other instrumentality of any such government or otherwise
exercising any executive, legislative, judicial, administrative or regulatory
functions of such government or (b) any other government entity having
jurisdiction over any matter contemplated by the Operative Agreements or
relating to the observance or performance of the obligations of any of the
parties to the Operative Agreements.
"Guarantor" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"H.15(519)" means the weekly statistical release designated as such, or any
successor publication, published by the Board of Governors of the Federal
Reserve System.
"Indentures" means, collectively, the Leased Aircraft Indentures and the Owned
Aircraft Indentures.
"Intercreditor Agreement" has the meaning set forth in the tenth recital to the
Note Purchase Agreement.
"Issuance Date" means March 28, 2002.
"Law" means (a) any constitution, treaty, statute, law, decree, regulation,
order, rule or directive of any Government Entity, and (b) any judicial or
administrative interpretation or application of, or decision under, any of the
foregoing.
"Lease" means a Lease Agreement substantially in the form of Exhibit A-2-1 or
A-2-2 to the Note Purchase Agreement.
"Lease Financing Agreements" means, collectively, the applicable Purchase
Agreement Assignment, the Leased Aircraft Participation Agreement, the
applicable Lease, the Leased Aircraft Indenture, the Leased Aircraft Guarantee,
the Equipment Notes issued thereunder and the Trust Agreement relating to the
financing of a Leased Aircraft.
"Leased Aircraft" means an Aircraft subject to a Lease.
"Leased Aircraft Guarantee" means a guarantee substantially in the form of
Exhibit A-6 of the Note Purchase Agreement.
"Leased Aircraft Indenture" means a Trust Indenture and Mortgage substantially
in the form of Exhibit A-3 to the Note Purchase Agreement.
"Leased Aircraft Participation Agreement" means a Participation Agreement
substantially in the form of Exhibit A-1 to the Note Purchase Agreement.
"Liquidity Facility" has the meaning set forth in the ninth recital to the Note
Purchase Agreement.
"Liquidity Provider" has the meaning set forth in the fourth recital to the Note
Purchase Agreement.
"Loan Trustee" means (i) in the case of the Lease Financing Agreements, the
"Mortgagee" as defined therein, and (ii) in the case of the Owner Financing
Agreements, the "Mortgagee" as defined therein.
"Mandatory Document Terms" means the terms set forth on Schedule V to the Note
Purchase Agreement.
"Mandatory Economic Terms" means the terms set forth on Schedule VI to the Note
Purchase Agreement.
"Manufacturer" means The Boeing Company, a Delaware corporation, solely in its
capacity as manufacturer or seller of Aircraft.
"Material Adverse Change" means, with respect to any Person, any event,
condition or circumstance that materially and adversely affects such Person 's
business or consolidated financial condition or its ability to observe or
perform its obligations, liabilities and agreements under the Operative
Agreements.
"Non Premium Amount" means the amount equal to unused Deposits to be distributed
due to the failure of an Aircraft to be delivered from the Manufacturer prior to
the Delivery Period Termination Date due to any reason not occasioned by ATA's
fault or negligence (it being understood that failure to arrange financing shall
be considered the Company's "fault" for purposes hereof). Deposits comprising
Non Premium Amounts will not be treated as unused Deposits in determining
whether the unused Deposits exceed the Par Redemption Amount.
"Note Purchase Agreement" means the Note Purchase Agreement to which this Annex
A is attached.
"Notice of Purchase Withdrawal" with respect to each Deposit Agreement, has the
meaning set forth in Section 2.3 thereof.
"Operative Agreements" means, collectively, the Pass Through Trust Agreements,
the Escrow and Paying Agent Agreements, the Deposit Agreements, the Liquidity
Facilities, the Intercreditor Agreement, the Registration Rights Agreement, the
Delayed Funding Implementation Agreement, the Certificates and the Financing
Agreements.
"Owned Aircraft" means an Aircraft subject to an Owned Aircraft Indenture
"Owned Aircraft Guarantee" means a guarantee substantially in the form of
Exhibit C-3 to the Note Purchase Agreement.
"Owned Aircraft Indenture" means a Trust Indenture and Mortgage substantially in
the form of Exhibit C-2 to the Note Purchase Agreement.
"Owned Aircraft Participation Agreement" means a Participation Agreement
substantially in the form of Exhibit C-1 to the Note Purchase Agreement.
"Owner Financing Agreements" means, collectively, the Owned Aircraft
Participation Agreement, the Owned Aircraft Indenture, the Owned Aircraft
Guarantee and the Equipment Notes issued thereunder.
"Owner Participant" means, with respect to any Leased Aircraft, the Person named
as the Owner Participant in the Participation Agreement with respect to such
Leased Aircraft.
"Owner Trust" means with respect to any Leased Aircraft, the trust created by
the "Trust Agreement" referred to in the Leased Aircraft Indenture related
thereto.
"Owner Trustee" means with respect to any Leased Aircraft, the "Owner Trustee"
party to the "Trust Agreement" referred to in the Leased Aircraft Indenture
related thereto.
"Par Redemption Amount" means $3 million.
"Participation Agreements" means, collectively, the Leased Aircraft
Participation Agreements and the Owned Aircraft Participation Agreements.
"Pass Through Trust" has the meaning set forth in the third recital to the Note
Purchase Agreement.
"Pass Through Trust Agreements" has the meaning set forth in the third recital
to the Note Purchase Agreement.
"Pass Through Trustee" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"Paying Agent" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"Person" means any individual, firm, partnership, joint venture, trust, trustee,
Government Entity, organization, association, corporation, limited liability
company, government agency, committee, department, authority and other body,
corporate or incorporate, whether having distinct legal status or not, or any
member of any of the same.
"Prepayment Withdrawal" with respect to each Escrow and Paying Agent Agreement,
has the meaning set forth in Section 1.02 thereof.
"Pro Rata Share" means, with respect to any Class of Certificates, the Par
Redemption Amount multiplied by a fraction, the numerator of which shall be the
amount of unused Deposits to be distributed to holders of such Class of
Certificates in connection with the Final Withdrawal and the denominator of
which shall be the amount of unused Deposits to be distributed to holders of all
Classes of Certificates in connection with the Final Withdrawal.
"Purchase Agreement Assignment" means either (i) the Purchase Agreement
Assignment in the form of Exhibit A-4-1 to the Note Purchase Agreement, in the
case of an ATA Aircraft or (ii) the
Purchase Agreement Assignment in the form of Exhibit A-4-2 to the Note Purchase
Agreement, in the case of a GE Aircraft.
"Purchasers" means collectively, Nyala Funding LLC, as purchaser under the
Certificates Purchase Agreement dated as of March 26, 2002 with the Guarantor
and the Company relating to the American Trans Air 2002-1A Pass Through Trust,
and PK AirFinance US, Inc., as purchaser under the Certificates Purchase
Agreement dated as of March 26, 2002 with the Guarantor and the Company relating
to the American Trans Air 2002-1B Pass Through Trust.
"Qualified Owner Participant" means any bank, trust company, insurance company,
financial institution, limited liability company or corporation (other than,
without the Company's consent, a commercial air carrier, a commercial aircraft
operator, a freight forwarder or Affiliate of any of the foregoing), in each
case with a combined capital and surplus or net worth of at least $50,000,000.
"Rating Agency" means, at any time, a nationally recognized rating agency which
shall have been requested to rate the Certificates and which shall then be
rating the Certificates. The initial Rating Agency will be Moody's Investors
Service, Inc.
"Rating Agency Confirmation" means, with respect to any Financing Agreement that
has been modified in any material respect from the forms thereof attached to the
Note Purchase Agreement or with respect to Substitute Aircraft, a written
confirmation from the Rating Agency that the use of such Financing Agreement
with such modifications or the substituting of such Substitute Aircraft for an
Aircraft, whichever of the foregoing shall in a particular case require Rating
Agency Confirmation, would not result in (i) a reduction of the rating for any
Class of Certificates below the then current rating for such Class of
Certificates or (ii) a withdrawal or suspension of the rating of any Class of
Certificates.
"Register" means the register maintained pursuant to Sections 3.04 and 7.12 of
each Pass Through Trust Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement dated as
of March 26, 2002, among the Investors (as defined therein), the Pass Through
Trustee, the Guarantor and the Company, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Regular Distribution Dates" shall mean February 20, May 20, August 20 and
November 20 of each year, commencing May 20, 2002.
"Remaining Weighted Average Life" means, on a given date with respect to any
Equipment Note, the number of days equal to the quotient obtained by dividing
(a) the sum of each of the products obtained by multiplying (i) the amount of
each then remaining scheduled payment of principal of such Equipment Note by
(ii) the number of days from and including such determination date to but
excluding the date on which such payment of principal is scheduled to be made,
by (b) the then outstanding principal amount of such Equipment Note.
"Replacement Deposit Agreement" means a deposit agreement with a Replacement
Depositary in substantially the form of the Deposit Agreement or Delayed Deposit
Agreement being replaced or in such other form as shall permit the Rating Agency
to issue its written confirmation required by Section 4(a)(vii)(B)(I) of the
Note Purchase Agreement.
"Replacement Depositary" has the meaning set forth in Section 4(a)(vii) of the
Note Purchase Agreement.
"Scheduled Delivery Date" has the meaning set forth in Section 1(b) hereof.
"Section 1110" means 11 U.S.C. (ss.) 1110 of the Bankruptcy Code or any
successor or analogous Section of the federal bankruptcy Law in effect from time
to time.
"Series A Equipment Notes" means Equipment Notes issued under an Indenture and
designated as "Series A" thereunder.
"Series B Equipment Notes" means Equipment Notes issued under an Indenture and
designated as "Series B" thereunder.
"Series C Equipment Notes" means Equipment Notes issued under an Owned Aircraft
Indenture or Leased Aircraft Indenture and designated as "Series C" thereunder,
if any.
"Subordination Agent" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"Substitute Aircraft" has the meaning set forth in Section 1(g) of the Note
Purchase Agreement.
"Taxes" means all license, recording, documentary, registration and other
similar fees and all taxes, levies, imposts, duties, charges, assessments or
withholdings of any nature whatsoever imposed by any Taxing Authority, together
with any penalties, additions to tax, fines or interest thereon or additions
thereto.
"Taxing Authority" means any federal, state or local government or other taxing
authority in the United States of America, any foreign government or any
political subdivision or taxing authority thereof, any international taxing
authority or any territory or possession of the United States of America or any
taxing authority thereof.
"Treasury Yield" means, as of any date of determination, with respect to any
Equipment Note (utilizing the Assumed Amortization Schedule applicable thereto),
the interest rate (expressed as a decimal and, in the case of United States
Treasury bills, converted to a bond equivalent yield) determined to be the per
annum rate equal to the semi-annual yield to maturity for United States Treasury
securities maturing on the Average Life Date (of such Equipment Note) and
trading in the public securities markets either as determined by interpolation
between the most recent weekly average yield to maturity for two series of
United States Treasury securities, trading in
the public securities markets, (A) one maturing as close as possible to, but
earlier than, the Average Life Date (of such Equipment Note) and (B) the other
maturing as close as possible to, but later than, the Average Life Date (of such
Equipment Note), in each case as published in the most recent H.15(519) or, if a
weekly average yield to maturity for United States Treasury securities maturing
on the Average Life Date (of such Equipment Note) is reported on the most recent
H.15(519), such weekly average yield to maturity as published in such H.15(519).
"Triggering Event" has the meaning assigned to such term in the Intercreditor
Agreement.
"Trust Agreement" means a Trust Agreement substantially in the form of Exhibit
A-5 to the Note Purchase Agreement.
"WTC" has the meaning set forth in the first paragraph of the Note Purchase
Agreement.
EXHIBIT A-1 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT PARTICIPATION AGREEMENT
EXHIBIT A-2-1 to
Note Purchase Agreement
FORM OF 467 LEASE
EXHIBIT A-2-2 to
Note Purchase Agreement
FORM OF NON-467 LEASE
EXHIBIT A-3 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT INDENTURE
EXHIBIT A-4-1 to
Note Purchase Agreement
FORM OF PURCHASE AGREEMENT ASSIGNMENT (ATA Aircraft)
EXHIBIT A-4-2 to
Note Purchase Agreement
FORM OF PURCHASE AGREEMENT ASSIGNMENT (GE Aircraft)
EXHIBIT A-5 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT TRUST AGREEMENT
EXHIBIT A-6
to Note Purchase Agreement
FORM OF LEASED AIRCRAFT GUARANTEE
EXHIBIT B to
Note Purchase Agreement
FORM OF DELIVERY NOTICE
Dated as of __________ __, ____
To each of the addressees listed
in Schedule A hereto
Re: Delivery Notice in accordance with Note Purchase
Agreement referred to below
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement among American Trans
Air, Inc. (the "Company"), Amtran, Inc., Wilmington Trust Company, as Pass
Through Trustee under each of the Pass Through Trust Agreements (as defined
therein) (the "Pass Through Trustee"), Wilmington Trust Company, as
Subordination Agent (the "Subordination Agent"), Wells Fargo Bank Northwest,
National Association, as Escrow Agent (the "Escrow Agent") and Wilmington Trust
Company, as Paying Agent (the "Paying Agent") (as amended, supplemented or
otherwise modified from time to time in accordance with its terms, the "Note
Purchase Agreement"). Unless otherwise defined herein, capitalized terms used
herein shall have the meanings set forth in the Note Purchase Agreement or, to
the extent not defined therein, the Intercreditor Agreement.
Pursuant to Section 1(b) of the Note Purchase Agreement, the
undersigned hereby notifies you, in respect of the Boeing 737-800 aircraft with
manufacturer's serial number _______ (the "Aircraft"), of the following:
(1) The Aircraft is [an ATA Aircraft] [a GE Aircraft]; the Company has
elected to treat the Aircraft as a [Leased](1)/[Owned](2) Aircraft;
[and the Lease is to be in the form of Exhibit [A-2-1] [A-2-2] to the
Note Purchase Agreement, subject to changes permitted under
Section 1(c)];
(2) The [Scheduled Delivery Date] [Funding Date] of the Aircraft is
__________ __, ______; and
- ---------------------
(1) To be inserted in the case of a Leased Aircraft.
(2) To be inserted in the case of an Owned Aircraft.
(3) The aggregate amount of each series of Equipment Notes to be issued,
and purchased by the respective Pass Through Trustees, on the
[Scheduled Delivery Date],[Funding Date] in connection with the
financing of such Aircraft is as follows:
(a) the Class A Trustee shall purchase Series A Equipment Notes in the
amount of __________.
(b) the Class B Trustee shall purchase Series B Equipment Notes in the
amount of $__________.
The Company hereby instructs the Class A Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated _______________, [a
date which is no later than one Business Day prior to the [Scheduled Delivery
Date][Funding Date]] and attach thereto a Notice of Purchase Withdrawal dated
such date completed as set forth on Exhibit A hereto and (ii) deliver such
Withdrawal Certificate and Notice of Purchase Withdrawal to the applicable
Escrow Agent.
The Company hereby instructs the Class B Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated ______________ [a
date which is no later than one Business Day prior to the [Scheduled Delivery
Date] [Funding Date]] and attach thereto a Notice of Purchase Withdrawal dated
such date completed as set forth on Exhibit B hereto and (ii) deliver such
Withdrawal Certificate and Notice of Purchase Withdrawal to the applicable
Escrow Agent.
The Company hereby instructs each Pass Through Trustee to (i) purchase
Equipment Notes of a series and in an amount set forth opposite such Pass
Through Trustee in clause (3) above with a portion of the proceeds of the
withdrawals of Deposits referred to in the applicable Notice of Purchase
Withdrawal referred to above and (ii) re-deposit with the Depositary the excess,
if any, of the amount so withdrawn over the purchase price of such Equipment
Notes.
The Company hereby instructs each Pass Through Trustee to (a) enter
into the Participation Agreement dated as of _______________ among the Company,
as [Lessee](3)/[Owner](4), the Subordination Agent, the Pass Through Trustee,
Wilmington Trust Company, as Mortgagee [and Loan Participant, Wells Fargo Bank
Northwest, National Association, as Owner Trustee and _________, as Owner
Participant](5), (b) perform its obligations thereunder and (c) deliver such
certificates, documents and legal opinions relating to such Pass Through Trustee
as required thereby.
- ----------------------
(3) To be inserted in the case of a Leased Aircraft.
(4) To be inserted in the case of an Owned Aircraft.
(5) To be inserted in the case of a Leased Aircraft.
[The Company hereby certifies that the Owner Participant with respect
to the Aircraft is (a) not an Affiliate of the Company and (b) based on
representation(s) of the Owner Participant, a [Qualified Owner
Participant/person whose obligations under the Owner Participant Agreements (as
defined in the Participation Agreement) are guaranteed by a Qualified Owner
Participant].](6)
Yours faithfully,
AMERICAN TRANS AIR, INC.
By:
--------------------------------
Name:
Title:
- ------------------
(6) To be inserted in the case of a Leased Aircraft.
SCHEDULE A
to Exhibit B to Note Purchase Agreement
Wilmington Trust Company, as
Pass Through Trustee, Subordination
Agent and Paying Agent
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Facsimile: (302) 636-4140
Wells Fargo Bank Northwest, National Association,
as Escrow Agent
79 South Main Street, 3rd Floor
Salt Lake City, Utah 84111
Attention: Corporate Trust Department
Facsimile: (801) 246-5053
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Bob Jankowitz
Facsimile: (212) 553-4600
ANNEX A
to Form of Delivery Notice
WITHDRAWAL CERTIFICATE
(Class __)*
Wells Fargo Bank Northwest, National Association,
as Escrow Agent
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement,
dated as of March 28, 2002 (as amended, supplemented or otherwise modified from
time to time in accordance with its terms, the "Agreement"). We hereby certify
to you that the conditions to the obligations of the undersigned to execute a
Participation Agreement pursuant to the Note Purchase Agreement have been
satisfied. Pursuant to Section 1.02(c) of the Agreement, please execute the
attached Notice of Withdrawal and immediately transmit by facsimile to the
Depositary, at (___) ________.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Pass Through Trustee
By:
-----------------------------------
Name:
Title:
Dated: _________, ____
- -------------------------
* Insert letter of appropriate class of Certificates.
EXHIBIT A
to Form of Delivery Notice
NOTICE OF PURCHASE WITHDRAWAL
- ------------------
[Address]
Attention:
Telecopier:
Ladies and Gentlemen:
Reference is made to the Deposit Agreement relating to the
Class A Certificates. In accordance with Section 2.3(a) of such Deposit
Agreement, the undersigned hereby requests the withdrawal of the entire amount
of the Deposit, $_______, Account No. ____________.
The undersigned hereby directs the Depositary to pay the
proceeds of the Deposit to [________________, Account No. _____, Reference:
_________] on _________ __, ____, upon the telephonic request of a
representative of the Pass Through Trustee.
Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Note Purchase Agreement referred to in
the Delivery Notice to which this Notice is attached.
WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
------------------------------
Name:
Title:
Dated: __________, ____
EXHIBIT B
to Form of Delivery Notice
NOTICE OF PURCHASE WITHDRAWAL
- ------------------
[Address]
Attention:
Telecopier:
Ladies and Gentlemen:
Reference is made to the Deposit Agreement relating to the
Class B Certificates. In accordance with Section 2.3(a) of such Deposit
Agreement, the undersigned hereby requests the withdrawal of the entire amount
of the Deposit, $_______, Account No. ____________.
The undersigned hereby directs the Depositary to pay the
proceeds of the Deposit to [________________, Account No. _____, Reference:
_________] on _________ __, ____, upon the telephonic request of a
representative of the Pass Through Trustee.
Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Note Purchase Agreement referred to in
the Delivery Notice to which this Notice is attached.
WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
-------------------------------
Name:
Title:
Dated: _________, ____
EXHIBIT C-1 to
Note Purchase Agreement
FORM OF OWNED AIRCRAFT PARTICIPATION AGREEMENT
EXHIBIT C-2 to
Note Purchase Agreement
FORM OF OWNED AIRCRAFT INDENTURE
EXHIBIT C-3 to
Note Purchase Agreement
FORM OF OWNED AIRCRAFT GUARANTEE
EXHIBIT D to
Note Purchase Agreement
ADDITIONAL SUBORDINATION PROVISION
FOR SERIES C EQUIPMENT NOTES
Subordination.
(a) As between the Note Holders, this Trust Indenture shall be a
subordination agreement for purposes of Section 510 of the United States
Bankruptcy Code, as amended, from time to time.
(b) If any Note Holder receives any payment in respect of any obligations
owing hereunder, which is subsequently invalidated, declared
preferential, set aside and/or required to be repaid to a trustee,
receiver or other party, then, to the extent of such payment, such
obligations intended to be satisfied shall be revived and continue in
full force and effect as if such payment had not been received.
(c) Each of the Note Holders may take any of the following actions without
impairing its rights under this Trust Indenture:
(i) obtain a Lien on any property to secure any amounts owing to it
hereunder,
(ii) obtain the primary or secondary obligation of any other obligor
with respect to any amounts owing to it hereunder,
(iii) renew, extend, alter or exchange any amounts owing to it
hereunder, or release or compromise any obligation of any obligor
with respect thereto,
(iv) refrain from exercising any right or remedy, or delay in
exercising such right or remedy, which it may have, or
(v) take any other action which might discharge a subordinated party
or a surety under applicable law;
provided, however, that the taking of any such actions by any of the
Note Holders shall not prejudice the rights or adversely affect the
obligations of any other party under this Trust Indenture.