EXHIBIT 4.17
_____________________________________________________________________________
NOTE PURCHASE AGREEMENT
Dated as of February 15, 2000
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
FIRST SECURITY BANK, 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........................................................11
SECTION 5. Notices..........................................................14
SECTION 6. Expenses.........................................................14
SECTION 7. Further Assurances...............................................15
SECTION 8. Miscellaneous....................................................16
SECTION 9. Governing Law....................................................16
Schedules
Schedule I Aircraft and Scheduled Delivery Months
Schedule II Pass Through Trust Agreements
Schedule III 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 Form of Lease
Exhibit A-3 Form of Leased Aircraft Indenture
Exhibit A-4 Form of Purchase Agreement Assignment
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 D Equipment
Notes
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of February 15, 2000, 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 three 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) FIRST SECURITY BANK, 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 commitments from the Manufacturer
pursuant to the Aircraft Purchase Agreement for the delivery of, and/or has
taken delivery of, the seven aircraft listed in Schedule I hereto (together
with any aircraft substituted therefor in accordance with the Aircraft
Purchase Agreement prior to the delivery thereof, the "Aircraft");
WHEREAS, pursuant to each of the Pass Through Trust Agreements set
forth in Schedule II hereto (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 has entered into the Purchase Agreement dated
as of February 8, 2000 (the "Purchase Agreement") with the several initial
purchasers named therein (the "Initial Purchasers"), which provides that each
Pass Through Trustee will issue and sell the Certificates to the Initial
Purchasers;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) the Escrow Agents and the Depositary entered into the Deposit
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Agreements set forth in Schedule III hereto (the "Deposit Agreements") whereby
the applicable Escrow Agent agreed to direct the Initial Purchasers to make
certain deposits referred to therein on the Issuance Date (the "Initial
Deposits") and to permit the applicable Pass Through Trustee to make
additional deposits from time to time thereafter (the Initial Deposits
together with such additional deposits are collectively referred to as the
"Deposits") and (ii) the Pass Through Trustees, the Initial Purchasers, the
Paying Agents and the Escrow Agents entered into the Escrow and Paying Agent
Agreements set forth in Schedule IV hereto (the "Escrow and Paying Agent
Agreements") whereby, among other things, (a) the Initial Purchasers agreed to
deliver an amount equal to the amount of the Initial Deposits to the
Depositary on behalf of the applicable Escrow Agent and (b) the applicable
Escrow Agent, upon the Depositary receiving such amount, has agreed to deliver
escrow receipts to be affixed to each Certificate;
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, upon the delivery of each Aircraft, each Pass Through
Trustee will fund its purchase of Equipment Notes with 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;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) Citibank, N.A. (the "Liquidity Provider"), has entered into two
separate revolving credit agreements (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 Trustee, the Liquidity
Provider, the Policy Provider (as defined below) and the Subordination Agent
have entered into the Intercreditor Agreement, dated as of the date hereof
(the "Intercreditor Agreement"); and
WHEREAS, concurrently with the execution and delivery of this
Agreement Ambac Assurance Corporation (the "Policy Provider") has entered into
the Insurance and Indemnity Agreement (the "Policy Provider Agreement") with
the Company and the Subordination Agent, as agent and trustee for the Pass
Through Trustee of the Class G Trust on behalf of the Class G Trust, and the
Policy Provider has issued the certificate guaranty insurance policy (the
"Policy") provided for therein for the benefit of the Class G
Certificateholders.
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:
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SECTION 1. Financing of Aircraft. (a) The Company confirms that it
has entered into the Aircraft Purchase Agreement with the Manufacturer
pursuant to which the Company has agreed to purchase, and the Manufacturer has
agreed to deliver, or has delivered, the Aircraft in the months specified in
Schedule I 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 Policy Provider, the Depositary
and each of the Rating Agencies 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
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 the Company has elected to treat such
Aircraft as a Leased Aircraft or an Owned Aircraft;
(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) instruct the applicable Pass Through Trustee to execute
and deliver to the relevant Escrow Agent a withdrawal certificate in
the Form of Exhibit B 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;
(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 delivered 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.
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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 D Equipment Notes or Class D Certificates (as defined in the
Intercreditor Agreement), agreed to by the Company and, if modified in any
adverse respect as regards the interests of the Policy Provider, as to which
prior written consent of the Policy Provider shall have been obtained 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 each Rating Agency (each to be delivered by the
Company to the applicable Pass Through Trustee on or before the relevant
Delivery Date, it being understood that if Policy Provider consent and 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 Policy
Provider consent or 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 either 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 each Rating Agency on or prior to the relevant Funding Date.
The Company shall pay the reasonable costs and expenses of the Rating Agencies
or the Policy Provider in connection with obtaining any such Rating Agency
Confirmation or Policy Provider consent. 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 Policy Provider or
of either Rating Agency, the Company shall deliver or cause to be delivered to
such Rating Agency or the Policy Provider, as the case may be, 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 Policy Provider prompt notice thereof. Concurrently
with the giving of such notice of postponement or
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subsequently, the Company shall give the parties hereto and the Policy
Provider 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 2.02(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) Anything in this Section 1 to the contrary notwithstanding, 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, anything in this Section 1
to the contrary notwithstanding, 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, 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, (iv) in the case of a Leased Aircraft, the Purchase
Agreement Assignment shall be modified to cover only an assignment of the
relevant warranties, and (v) in the case of each of the Bridge Aircraft, the
Lease Financing Agreements for each such Aircraft shall be amended to reflect
the amendment and restatement of the lease, the participation agreement, the
trust agreement and the loan indenture and mortgage used in the related bridge
financing, such amended and restated agreements to comply with the
requirements of the first sentence of Section 1(c).
(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.
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(g) If the Scheduled Delivery Date for any Aircraft is delayed (a)
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 hereto or
(b) beyond December 31, 2000, the Company may identify for delivery, as a
substitute therefor, a Boeing 757-200ER aircraft with the same specification
and appraised value as the Aircraft to be replaced (a "Substitute Aircraft")
so long as (i) after giving effect thereto such substitution does not vary the
Mandatory Economic Terms and (ii) the Company shall be obligated to 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 become 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 or, in
the case of any Bridge Aircraft, is not financed by the Company under the
Lease Financing Agreement [on the Issuance Date], then the Company shall use
reasonable efforts to assure that the aggregate amortization schedule of the
Equipment Notes 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 2.14 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 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
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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 that the Pass Through Trusts will not be subject to Federal income
taxation as a result of such assumption and release and (c) in the case of a
Sale/Leaseback Transaction, obtains written confirmation from each Ratings
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 (such ratings as determined without regard to the Policy) 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:
(a) no Triggering Event shall have occurred; and
(b) the Company shall have delivered a certificate to each such Pass
Through Trustee, the Policy Provider 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
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 Policy Provider
and does not materially and 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 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 and each
Financing Agreement to which it will be a party;
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(ii) the execution and delivery by the Company and Guarantor of this
Agreement and the performance by each of the Company and Guarantor of its
obligations under this 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) this 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 America pertaining to its banking,
trust and fiduciary powers to execute and deliver this 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 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 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 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) this 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.
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(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
and each Financing Agreement to which it is or will be a party and to
perform its obligations under this Agreement and each Financing Agreement
to which it is or will be a party;
(ii) this Agreement has been duly authorized, executed and delivered
by the Subordination Agent; this 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 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 nor the consummation by the Subordination Agent of any
of the transactions contemplated hereby 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 (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.
(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, 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 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
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
11
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 that:
(i) on the date that the Depositary is obligated to pay the amount
of 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, required to be
paid in respect of such 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) Section 5.02 of each Pass Through Trust Agreement is hereby
incorporated by reference herein, mutatis mutandis;
(v) the Company agrees to provide written notice to each of the
parties hereto of the occurrence of the Cut-off Date no later than one
Business Day after the date thereof; such notice to refer specifically to
the Pass Through Trustee's obligation to assign, transfer and deliver all
of its right, title and interest to the Trust Property (as defined in
each Pass Through Trust Agreement) to the trustee of the Related Trust
(as defined in each Pass Through Trust Agreement) in accordance with
Section 11.01 of each of the Pass Through Trust Agreements;
(vi) the Company shall not issue Series D Equipment Notes pursuant
to any Owned Aircraft Indenture or Leased Aircraft Indenture unless it
shall have obtained written confirmation from each Rating Agency that the
issuance of such Series D 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 (such ratings as determined
without regard to the Policy) or (ii) a withdrawal or suspension of the
rating of any Class of Certificates. If such conditions to the issuance
of Series D 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 D Pass Through Certificates. The
Company will (i) cause the Indenture
12
under which any Series D Equipment Notes are issued to provide for the
subordination of the Series D Equipment Notes to the Series C Equipment
Notes, the Policy Provider Obligations (as defined in the Intercreditor
Agreement), the Series G Equipment Notes and the Liquidity Obligations
(as defined in the Intercreditor Agreement) in the same manner as the
Series C Equipment Notes are subordinated to the Policy Provider
Obligations, the Series G Equipment Notes and the Liquidity Obligations
and (ii) if Series D Equipment Notes are initially issued to other than
the pass through trustee for the Class D Certificates (as defined in the
Intercreditor Agreement), (A) cause such Series D 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 D Equipment Notes are issued to include, in substance, the
provisions set forth in Exhibit D to this Agreement; and
(vii) On the Issuance Date, the Depositary's short term unsecured
rating shall be A-1+ from Standard & Poor's and P-1 from ▇▇▇▇▇'▇ (the
'Depositary Threshold Rating'). If the Depositary's short term rating
shall at any time fall below P-1 from ▇▇▇▇▇'▇ or A-1+ from Standard &
Poor's, the Company shall, within 45 days of such event occurring, cause
the Depositary to be replaced with a depository bank (a "Replacement
Depositary") on the following terms and preconditions:
(A) the Replacement Depositary must be one that meets the
Depositary Threshold Rating (unless the Company shall have obtained
(i) written confirmation from each Rating Agency that such
replacement will not cause a reduction of any rating then in effect
for any Class of Certificates by such Rating Agency (without regard
to any downgrading of any rating of the Depositary being replaced
and without regard to the Policy) and (ii) the prior written consent
of the Policy Provider) and the Company shall have obtained written
confirmation from each Rating Agency that such replacement will not
cause a reduction of any rating then in effect for any Class of
Certificates by such Rating Agency (without regard to any
downgrading of any rating of the Depositary being replaced and
without regard to the Policy);
(B) the Company shall pay all fees, expenses and other amounts
then owing to the replaced Depositary; and
(C) 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 Policy Provider and each
Rating Agency 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,
Upon satisfaction of the foregoing conditions, the Company shall
instruct each Pass Through Trustee, and each Pass Through Trustee agrees, to
execute and deliver
13
to the Escrow Agent a duly completed Withdrawal Certificate (as defined in the
Escrow and Paying Agent Agreements) together with a Notice of Replacement
Withdrawal (as defined in the Escrow and Paying Agent Agreements).
Each of the parties hereto agrees, at the Company's request, 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.
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(a) of its 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 required or permitted by the terms hereof shall be 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 at the foot of this Agreement. Notice shall be given to the
Policy Provider at the address specified in the Intercreditor Agreement.
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 G Equipment Notes and Series C
Equipment Notes issued under all of the Indentures and (y) the then
outstanding aggregate amount of the Deposits under the Deposit Agreements.
14
(b) 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
Policy Provider under Section 3.2 of the Policy Provider Agreement.
(c) 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, (iv) all compensation and reimbursement of expenses
and disbursements payable to the Policy Provider under the Policy Provider
Agreement, and (v) 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 and/or the Policy Provider 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 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
15
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. 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) This Agreement is not intended to, and shall not, provide any
person not a party hereto (other than the Initial 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 Initial 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 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.
16
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: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Facsimile:
AMTRAN, INC.,
as Guarantor
By__________________________
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Facsimile:
17
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
otherwise provided herein, but solely as
Pass Through Trustee
By__________________________
Name:
Title:
Address: ▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Admin.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
otherwise provided herein, but solely as
Subordination Agent
By__________________________
Name:
Title:
Address: ▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Admin.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By__________________________
Name:
Title:
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
18
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
otherwise provided herein, but solely as
Paying Agent
By__________________________
Name:
Title:
Address: ▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Admin.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
19
SCHEDULE I to
Note Purchase Agreement
AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Aircraft Manufacturer's Scheduled
Aircraft Type Tail Number Serial Number Delivery Month
B757-200 N515AT 27598 September, 1999
B757-200 N523AT 30232 September, 1999
B757-200 N524AT 30233 October, 1999
B757-200 N525AT 30548 June, 2000
B757-200 N526AT 30549 June, 2000
B757-200 N527AT TBD November, 2000
B757-200 N528AT TBD November, 2000
20
SCHEDULE II to
Note Purchase Agreement
PASS THROUGH TRUST AGREEMENTS
Pass Through Trust Agreement dated as of the Issuance Date between the
Company, Amtran and the Pass Through Trustee in respect of American Trans Air
2000-1G- O Pass Through Trust,
Pass Through Trust Agreement dated as of the Issuance Date between the
Company, Amtran and the Pass Through Trustee in respect of American Trans Air
2000-1C- O Pass Through Trust,
21
SCHEDULE III to
Note Purchase Agreement
DEPOSIT AGREEMENTS
Deposit Agreement (Class G) dated as of the Issuance Date between the Depositary
and the Escrow Agent.
Deposit Agreement (Class C) dated as of the Issuance Date between the Depositary
and the Escrow Agent.
22
SCHEDULE IV to
Note Purchase Agreement
ESCROW AND PAYING AGENT AGREEMENTS
Escrow and Paying Agent Agreement (Class G) dated as of the Issuance Date
among the Escrow Agent, the Initial Purchasers, the Pass Through Trustee and the
Paying Agent.
Escrow and Paying Agent Agreement (Class C) dated as of the Issuance Date
among the Escrow Agent, the Initial Purchasers, the Pass Through Trustee and the
Paying Agent.
23
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, or in any adverse respects as regards the interests of the
Policy Provider, 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 or (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.
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, or in any adverse respect as regards the interests of the
Policy Provider, the provisions of Section 3.2.1(e), 3.3(c), 4.7, the final
sentence of 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, or in any adverse respect as regards the interests of the
Policy Provider, 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
5.1.16 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, the
Policy Provider 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, or in any adverse respect as regards the
interests of the Policy Provider,
24
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, the Policy
Provider 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 or in any adverse respect as regards the
interests of the Policy Provider, 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, or adversely affect the interests of
the Policy Provider.
25
SCHEDULE VI to
Note Purchase Agreement
MANDATORY ECONOMIC TERMS
Equipment Notes
Obligor: American Trans Air, Inc. or an Owner Trust
Maximum Principal Amount:
For Boeing 757-200ER (N515AT) Aircraft $28,669,185
For Boeing 757-200ER (N523AT) Aircraft $32,949,764
For Boeing 757-200ER (N524AT) Aircraft $32,972,051
For Boeing 757-200ER (N525AT) Aircraft $36,356,000
For Boeing 757-200ER (N526AT) Aircraft $37,014,800
For Boeing 757-200ER (N527AT) Aircraft $37,371,650
For Boeing 757-200ER (N528AT) Aircraft $37,371,650
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 Offering Memorandum in "Summary - The
Offering Secured Promissory Notes and the Aircraft" under the column
"Appraised Base Value"):
Series G: not in excess of 47.5%
Series C: not in excess of 55.3%
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 ranks 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 Offering
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 G: not in excess of 50.1%
Series C: not in excess of 60.7%
Initial Average Life (in years)
Series G: not extend beyond 10.8 years
26
Series C: not extend beyond 5 years
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 G
Certificates and the Class C Certificates shall not exceed, respectively, 10.2
years and 3.9 years (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 G: not in excess of 16.5 years from the date of issuance of the
Certificates (the "Date of Issuance")
Series C: not in excess of 9 years from the Date of Issuance
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears)
Series G: 8.039%
Series C: 9.644%
Payment Dates: January 15, April 15, July 15 and October 15
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 G Equipment Notes
Lease Payment Dates: January 15, April 15, July 15 and October 15
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
27
(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
form of Lease (the "Lease Form") marked as Exhibit A-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 together with accrued interest thereon
Termination Value: At all times equal to or greater than the then
outstanding principal amount of the related Equipment
Notes together with accrued interest thereon
All-risk hull not less than Stipulated Value, subject to Lessee's
insurance: 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 Section 11.1 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, the Policy Provider, 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.
28
SCHEDULE VII to
Note Purchase Agreement
AGGREGATE AMORTIZATION SCHEDULE
Date 1999-1G Trust 1999-1C
Scheduled Trust
Payment Scheduled
Payment
January 15, 2001 $195,048,727 $31,878,562
January 15, 2002 188,123,439 26,903,406
January 15, 2003 181,101,216 21,009,751
January 15, 2004 174,123,194 13,961,494
January 15, 2005 165,274,030 7,580,064
January 15, 2006 156,464,492 0
January 15, 2007 143,756,835 0
January 15, 2008 131,036,714 0
January 15, 2009 119,988,518 0
January 15, 2010 107,011,177 0
January 15, 2011 90,937,955 0
January 15, 2012 73,234,526 0
January 15, 2013 55,563,670 0
January 15, 2014 38,272,666 0
January 15, 2015 19,552,933 0
January 15, 2016 0 0
29
ANNEX A to
Note Purchase Agreement
DEFINITIONS
"Act" means 49 U.S.C. ▇▇.▇▇. 40101-46507.
"Adjusted Treasury Yield" means, as of any date of determination, the sum of
the Treasury Yield plus 25 basis points.
"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" has the meaning set forth in the second recital to the Note
Purchase Agreement.
"Aircraft Purchase Agreement" means the Purchase Agreement No. 1845 dated
November 4, 1994, 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).
"Assumed Amortization Schedule" means Schedule VII to the Note
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.
▇▇.▇▇. 101 et seq.
"Bridge Aircraft" means the three Aircraft with manufacturers serial numbers
27598, 30232 and 30233, respectively.
"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.
30
"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 G Trust" 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.
"Delivery Date" means the Business Day on which a Aircraft is delivered to and
accepted by the Company.
"Delivery Period Termination Date" means the earlier of (a) December 31, 2000,
or, if the Equipment Notes related to all the Aircraft (or Substitute Aircraft
in lieu thereof) have not been purchased by the Trusts on or prior to such
date due to any reason beyond the control of ATA and not occasioned by ATA's
fault or negligence, May 31, 2001 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 fifth recital to the Note Purchase
Agreement.
"Deposit Agreement" shall mean the Initial Deposit Agreements set forth on
Schedule III hereto 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 has the
meaning set forth in the fifth recital to the Note Purchase Agreement.
"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, an amount equal to the excess, if any, of (a) the present value
of the excess of (i) the scheduled payment of principal and interest to
maturity of the 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
31
which shall be the Pro Rata Share and the denominator of which shall be the
Maximum Amount) over (ii) 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 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).
"Depositary" means Citibank, N.A., a national banking association 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) (iii) hereof.
"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.
32
"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.
"Initial Purchasers" has the meaning set forth in the fourth recital to the
Note Purchase Agreement.
"Intercreditor Agreement" has the meaning set forth in the ninth recital to
the Note Purchase Agreement.
"Issuance Date" means the date of the original issuance of the Certificates.
"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 to
the Note Purchase Agreement.
"Lease Financing Agreements" means, collectively, the Purchase Agreement
Assignment, the Leased Aircraft Participation Agreement, the 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 ninth recital to the
Note Purchase Agreement.
33
"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 prior to the
Delivery Period Termination Date due to any reason not occasioned by ATA's
fault or negligence. 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 Policy Provider Agreement, the Policy, the Intercreditor
Agreement, the Registration Rights Agreements, the Trust Agreements, the
Equipment Notes, 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.
34
"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 $5 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 Agreement" 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.
"Policy " has the meaning set forth in the tenth recital to the Note Purchase
Agreement.
"Policy Provider Obligations" has the meaning specified in the Intercreditor
Agreement.
"Policy Provider" has the meaning set forth in the tenth recital to the Note
Purchase Agreement.
"Policy Provider Agreement" has the meaning set forth in the tenth recital to
the Note Purchase Agreement.
35
"Pro Rata Share" means, with respect to any Class of Certificates, the sum of
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 the Purchase Agreement and
Engine Warranties Assignment in the form of Exhibit A-4 to the Note
Purchase Agreement.
"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 Agencies" means, collectively, at any time, each nationally recognized
rating agency which shall have been requested to rate the Certificates and
which shall then be rating the Certificates. The initial Rating Agencies will
be ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, 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 each of the Rating Agencies that the use of such
Financing Agreement with such modifications or the substituting of such
Substitute Aircraft for a 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 (such ratings as determined without
regard to the Policy) 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 Exchange and Registration Rights
Agreement dated as of the Issuance Date, among the Initial Purchasers, the
Pass Through Trustees and the Company, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Regular Distribution Dates" shall mean January 15, April 15, July 15 and
October 15 of each year, commencing April 15, 2000.
"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
36
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 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 C Equipment Notes" means Equipment Notes issued under an Indenture and
designated as "Series C" thereunder.
"Series D Equipment Notes" means Equipment Notes issued under an Owned
Aircraft Indenture and designated as "Series D" thereunder, if any.
"Series G Equipment Notes" means Equipment Notes issued under an Indenture and
designated as "Series G" thereunder.
"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
37
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.
38
EXHIBIT A-1 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT PARTICIPATION AGREEMENT
39
EXHIBIT A-2 to
Note Purchase Agreement
FORM OF LEASE
40
EXHIBIT A-3 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT INDENTURE
41
EXHIBIT A-4 to
Note Purchase Agreement
FORM OF PURCHASE AGREEMENT ASSIGNMENT
42
EXHIBIT A-5 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT TRUST AGREEMENT
43
EXHIBIT A-6
to Note Purchase Agreement
FORM OF LEASED AIRCRAFT GUARANTEE
44
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"), First Security Bank, National
Association, as Escrow Agent (the "Escrow Agent") and Wilmington Trust
Company, as Paying Agent (the "Paying Agent") (as in effect from time to time,
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 757-200 aircraft
with manufacturer's serial number _______ (the "Aircraft"), of the following:
(1) The Company has elected to treat the Aircraft as a
[Leased]1/[Owned]2 Aircraft;
(2) The [Scheduled Delivery Date] [Funding Date]3 of the Aircraft is
__________ __, ______; and
(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, in connection with the financing of such
Aircraft is as follows:
_________________
1 To be inserted in the case of a Leased Aircraft.
2 To be inserted in the case of an Owned Aircraft.
3 For Bridge Aircraft for which the Scheduled Delivery Date was
prior to the Issuance Date.
45
(a) the Class G Trustee shall purchase Series G Equipment Notes
in the amount of __________.
(b) the Class C Trustee shall purchase Series C Equipment Notes in
the amount of $__________.
The Company hereby instructs the Class G Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated _____ __, 2000 [a
date which is no later than one Business Day prior to the Scheduled Delivery
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 C Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated _____ __, 2000 [a
date which is no later than one Business Day prior to the Scheduled Delivery
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 _____ __, 2000 among the Company,
as [Lessee]4/[Owner]5, the Subordination Agent, the Pass Through Trustee,
Wilmington Trust Company, as Mortgagee [and Loan Participant, First Security
Bank, National Association, as Owner Trustee and _________, as Owner
Participant]6, (b) perform its obligations thereunder and (c) deliver such
certificates, documents and legal opinions relating to such Pass Through
Trustee as required thereby.
[The Company hereby certifies that the Owner Participant with
respect to the Aircraft is (a) not an Affiliate of the Company and (b) a
________
4 To be inserted in the case of a Leased Aircraft.
5 To be inserted in the case of an Owned Aircraft.
6 To be inserted in the case of a Leased Aircraft.
46
[Qualified Owner Participant/person whose obligations under the Owner
Participant Agreements (as defined in the Participation Agreement) are
guaranteed by a Qualified Owner Participant].]7
Yours faithfully,
AMERICAN TRANS AIR, INC.
By: _________________
Name:
Title:
___________
7 To be inserted in the case of a Leased Aircraft.
47
SCHEDULE A
to Note Purchase Agreement
Wilmington Trust Company, as
Pass Through Trustee, Subordination
Agent and Paying Agent
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
First Security Bank, National Association,
as Escrow Agent
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
48
ANNEX A
to Form of Delivery Notice
WITHDRAWAL CERTIFICATE
(Class __)8
First Security Bank, National Association,
as Escrow Agent
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement, dated as
of February 15, 2000 (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: _______ __, ____
______________________
8 Insert letter of appropriate class of Certificates.
49
EXHIBIT A
to Form of Delivery Notice
NOTICE OF PURCHASE WITHDRAWAL
CITIBANK, N.A.
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Attention: Global Agency and Trust Services
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class G) dated as of
February 15, 2000 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and Citibank, N.A., as Depositary (the
"Depositary").
In accordance with Section 2.3(a) of the 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.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By ___________________
Name:
Title:
Dated: _______ __, ____
50
EXHIBIT B
to Form of Delivery Notice
NOTICE OF PURCHASE WITHDRAWAL
CITIBANK, N.A.
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Attention: Global Agency and Trust Services
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class C) dated as of
February 15, 2000 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and Citibank, Indiana, N.A., as
Depositary (the "Depositary").
In accordance with Section 2.3(a) of the 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.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By ___________________
Name:
Title:
Dated: _______ __, ____
51
EXHIBIT C-1 to
Note Purchase Agreement
FORM OF OWNED AIRCRAFT PARTICIPATION AGREEMENT
52
EXHIBIT C-2 to
Note Purchase Agreement
FORM OF OWNED AIRCRAFT INDENTURE
53
EXHIBIT C-3 to
Note Purchase Agreement
FORM OF OWNED AIRCRAFT GUARANTEE
54
EXHIBIT D to
Note Purchase Agreement
ADDITIONAL SUBORDINATION PROVISION
FOR SERIES D EQUIPMENT NOTES
Subordination.
(a) As between the Note Holders, this Trust Indenture shall be a
subordination agreement for purposes of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ 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, increase, 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.
Exhibit D
