EXHIBIT 4.15
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ESCROW AND PAYING AGENT AGREEMENT
(Class G)
Dated as of February 15, 2000
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Escrow Agent
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CHASE SECURITIES INC.
and
BANC ONE CAPITAL MARKETS, INC.
as Initial Purchasers
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
American Trans Air 2000-1G-O Pass Through Trust
as Pass Through Trustee
and
WILMINGTON TRUST COMPANY
as Paying Agent
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ESCROW AND PAYING AGENT AGREEMENT (Class G) dated as of February 15,
2000 (as amended, modified or supplemented from time to time, this
"Agreement") among 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"); ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED, CHASE SECURITIES INC., AND BANC ONE CAPITAL
MARKETS, INC., as the Initial Purchasers of the below referred to Certificates
(the "Initial Purchasers" and together with their respective transferees and
assigns as registered owners of the Certificates, the "Investors") under the
Certificate Purchase Agreement referred to below; WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity but solely as
trustee (in such capacity, together with its successors in such capacity, the
"Pass Through Trustee") under the Pass Through Trust Agreement referred to
below; and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as paying
agent hereunder (in such capacity, together with its successors in such
capacity, the "Paying Agent").
W I T N E S S E T H
WHEREAS, American Trans Air, Inc. ("ATA"), Amtran, Inc. ("Amtran")
and the Pass Through Trustee have entered into a Pass Through Trust Agreement,
dated as of February 15, 2000 (as amended, modified or supplemented from time
to time in accordance with the terms thereof, the "Pass Through Trust
Agreement") relating to American Trans Air 2000-1G-O Pass Through (the "Pass
Through Trust") pursuant to which the American Trans Air Pass Through Trust,
Series 2000-1G-O Certificates referred to therein (the "Certificates"
2000-1G-O) are being issued;
WHEREAS, ATA, Amtran and the Initial Purchasers have entered into a
Purchase Agreement dated as of February 8, 2000 (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the
"Purchase Agreement") pursuant to which the Pass Through Trustee will issue
and sell the Certificates to the Initial Purchasers;
WHEREAS, ATA, the Pass Through Trustee, certain other pass through
trustees and certain other persons concurrently herewith are entering into the
Note Purchase Agreement, dated as of the date hereof (the "Note Purchase
Agreement"), pursuant to which the Pass Through Trustee has agreed to acquire
from time to time on or prior to the Delivery Period Termination Date (as
defined in the Note Purchase Agreement) equipment notes (the "Equipment
Notes") issued to finance the acquisition of aircraft by ATA, as lessee or as
owner, utilizing a portion of the proceeds from the sale of the Certificates
(the "Net Proceeds");
WHEREAS, the Initial Purchasers and the Pass Through Trustee intend
that the Net Proceeds be held in escrow by the Escrow Agent on behalf of the
Investors, subject to withdrawal upon request by the Pass Through Trustee and
satisfaction of the conditions set forth in the Note Purchase Agreement for
the purpose of purchasing Equipment Notes, and that pending such withdrawal
the Net Proceeds be deposited on behalf of the Escrow Agent with Citibank,
N.A., a national banking association, as Depositary (the "Depositary", which
shall also be deemed to refer to any Replacement Depositary (as defined in the
Note Purchase Agreement) from and after the date on which the Deposits are
transferred to such Replacement Depositary)
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under the Deposit Agreement (Class G), dated as of the date hereof between the
Depositary and the Escrow Agent relating to the Pass Through Trust (as
amended, modified or supplemented from time to time in accordance with the
terms thereof, the "Deposit Agreement", which shall also be deemed to refer to
any Replacement Deposit Agreement (as defined in the Note Purchase Agreement)
to which the Escrow Agent becomes a party pursuant to Section 1.02(a) hereof
from and after the transfer of the Deposits from the Depositary to the
Replacement Depositary) pursuant to which, among other things, the Depositary
will pay interest for distribution to the Investors and establish accounts
from which the Escrow Agent shall make withdrawals upon the request of and
proper certification by the Pass Through Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying Agent to pay
amounts required to be distributed to the Investors in accordance with this
Agreement; and
WHEREAS, capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Pass Through Trust Agreement.
NOW, THEREFORE, in consideration of the obligations contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
as follows:
SECTION 1. Escrow Agent.
Section 1.01. Appointment of Escrow Agent. The Initial Purchasers,
for and on behalf of each of the Investors, hereby irrevocably appoint,
authorize and direct the Escrow Agent to act as escrow agent and fiduciary
hereunder and under the Deposit Agreement for such specific purposes and with
such powers as are specifically delegated to the Escrow Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Any and all monies received and held by the Escrow Agent under this
Agreement or the Deposit Agreement shall be held in escrow by the Escrow Agent
in accordance with the terms of this Agreement. This Agreement is irrevocable
and the Investors' rights with respect to any monies received and held in
escrow by the Escrow Agent under this Agreement or the Deposit Agreement shall
only be as provided under the terms and conditions of this Agreement and the
Deposit Agreement. The Escrow Agent (which term as used in this sentence shall
include reference to its affiliates and its own and its affiliates' officers,
directors, employees and agents): (a) shall have no duties or responsibilities
except those expressly set forth in this Agreement and the Deposit Agreement;
(b) shall not be responsible to the Pass Through Trustee or the Investors for
any recitals, statements, representations or warranties of any person other
then itself contained in this Agreement or the Deposit Agreement or for the
failure by the Pass Through Trustee, the Investors, the Paying Agent or any
other person or entity (other than the Escrow Agent) to perform any of its
obligations hereunder (whether or not the Escrow Agent shall have any
knowledge thereof); and (c) shall not be responsible for any action taken or
omitted to be taken by it hereunder or provided for herein or in connection
herewith, except for its own willful misconduct or gross negligence (or simple
negligence in connection with the handling of funds).
Section 1.02. Instruction; Etc. The Initial Purchasers, for the
benefit of each of the Investors, hereby irrevocably direct the establishment
of an escrow and accordingly instruct the Escrow Agent, and the Escrow Agent
agrees, (a) to enter into the Deposit Agreement and, if requested by the
Company pursuant to Section 4(a)(vii) of the Note Purchase Agreement, to enter
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into a Replacement Deposit Agreement with the Replacement Depositary specified
by the Company, (b) to appoint the Paying Agent as provided for in this
Agreement, (c) upon receipt at any time and from time to time prior to the
Termination Date (as defined below) of a certificate substantially in the form
of Exhibit B hereto (a "Withdrawal Certificate") executed by the Pass Through
Trustee, together with an attached Notice of Purchase Withdrawal in
substantially the form of Exhibit A to the Deposit Agreement duly completed by
the Pass Through Trustee (the "Applicable Notice of Purchase Withdrawal" and
the withdrawal to which it relates, a "Purchase Withdrawal"), immediately to
execute the Applicable Notice of Purchase Withdrawal as Escrow Agent and
transmit it to the Depositary by facsimile transmission in accordance with the
Deposit Agreement; provided that, upon the request of the Pass Through Trustee
after such transmission, the Escrow Agent shall cancel such Applicable Notice
of Purchase Withdrawal, (d) upon receipt of a Withdrawal Certificate executed
by the Pass Through Trustee, together with an attached Notice of Replacement
Withdrawal in substantially the form of Exhibit C to the Deposit Agreement
duly completed by the Pass Through Trustee, to (X) give such Notice of
Replacement Withdrawal to the Depositary requesting a withdrawal, on the date
specified in such notice, which shall not be less than 15 days after such
notice is given (the "Replacement Withdrawal Date"), of all Deposits then held
by the Depositary together with, if the Replacement Withdrawal Date occurs on
a Regular Distribution Date, all accrued and unpaid interest on such Deposits
to but excluding the Replacement Withdrawal Date, and (Y) direct the
Depositary to transfer such Deposits on behalf of the Escrow Agent to the
Replacement Depositary in accordance with the Replacement Deposit Agreement,
and (e) if there are any undrawn Deposits (as defined in the Deposit
Agreement) on the "Termination Date", which shall mean the earlier of (i) May
31, 2001 and (ii) the day on which the Escrow Agent receives notice from the
Pass Through Trustee that the Pass Through Trustee's obligation to purchase
Equipment Notes under the Note Purchase Agreement has terminated, to give
notice to the Depositary (with a copy to the Paying Agent) substantially in
the form of Exhibit B to the Deposit Agreement requesting a withdrawal of all
of the remaining Deposits, together with accrued and unpaid interest on such
Deposits to the date of withdrawal, on the 35th day after the date that such
notice of withdrawal is given to the Depositary (or, if not a Business Day, on
the next succeeding Business Day) (a "Final Withdrawal"), provided that if the
day scheduled for the Final Withdrawal in accordance with the foregoing is
within 10 days before or after a Regular Distribution Date, then the Escrow
Agent shall request that such requested Final Withdrawal be made on such
Regular Distribution Date (the date of such requested withdrawal, the "Final
Withdrawal Date"). If for any reason the Escrow Agent shall have failed to
give the Final Withdrawal Notice to the Depositary on or before June 6, 2001,
and there are unwithdrawn Deposits on such date, the Final Withdrawal Date
shall be deemed to be June 27, 2001.
Section 1.03. Initial Escrow Amount; Issuance of Escrow Receipts.
The Escrow Agent hereby directs the Initial Purchasers to, and the Initial
Purchasers hereby acknowledge that on the date hereof they shall, irrevocably
deliver by wire transfer to the Depositary on behalf of the Escrow Agent, an
amount in U.S. dollars ("Dollars") and immediately available funds equal to
$201,901,000 for deposit on behalf of the Escrow Agent with the Depositary in
accordance with Section 2.1 of the Deposit Agreement. The Initial Purchasers
hereby instruct the Escrow Agent, upon receipt of such sum from the Initial
Purchasers, to confirm such receipt by executing and delivering to the Pass
Through Trustee an Escrow Receipt in the form of Exhibit A hereto (an "Escrow
Receipt"), (a) to be affixed by the Pass Through Trustee to each Certificate
and (b) to evidence the same percentage interest (the "Escrow Interest") in
the Account Amounts (as defined in Section 1.04) as the Fractional Undivided
Interest in the Pass Through Trust evidenced
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by the Certificate to which it is to be affixed. The Escrow Agent shall
provide to the Pass Through Trustee for attachment to each Certificate newly
issued under and in accordance with the Pass Through Trust Agreement an
executed Escrow Receipt as the Pass Through Trustee may from time to time
request of the Escrow Agent. Each Escrow Receipt shall be registered by the
Escrow Agent in a register (the "Register") maintained by the Escrow Agent in
the same name and same manner as the Certificate to which it is attached and
may not thereafter be detached from such Certificate to which it is to be
affixed prior to the distribution of the Final Withdrawal (the "Final
Distribution"). After the Final Distribution, no Escrow Receipts shall be
issued and the Pass Through Trustee shall request the return to the Escrow
Agent for cancellation of all outstanding Escrow Receipts.
Section 1.04. Payments to Receiptholders. All payments and
distributions made to holders of an Escrow Receipt (collectively
"Receiptholders") in respect of the Escrow Receipt shall be made only from
amounts deposited in the Paying Agent Account ("Account Amounts"). Each
Receiptholder, by its acceptance of an Escrow Receipt, agrees that (a) it will
look solely to the Account Amounts for any payment or distribution due to such
Receiptholder pursuant to the terms of the Escrow Receipt and this Agreement
and (b) it will have no recourse to ATA, the Pass Through Trustee, the Paying
Agent, the Escrow Agent or Wilmington Trust Company, except as expressly
provided herein or in the Pass Through Trust Agreement. No Receiptholder shall
have any right to vote or in any manner otherwise control the operation and
management of the Paying Agent Account or the obligations of the parties
hereto, nor shall anything set forth herein, or contained in the terms of the
Escrow Receipt, be construed so as to constitute the Receiptholders from time
to time as partners or members of an association.
Section 1.05. Mutilated, Destroyed, Lost or Stolen Escrow Receipt.
If (a) any mutilated Escrow Receipt is surrendered to the Escrow Agent or the
Escrow Agent receives evidence to its satisfaction of the destruction, loss or
theft of any Escrow Receipt and (b) there is delivered to the Escrow Agent and
the Pass Through Trustee such security, indemnity or bond, as may be required
by them to hold each of them harmless, then, absent notice to the Escrow Agent
or the Pass Through Trustee that such destroyed, lost or stolen Escrow Receipt
has been acquired by a bona fide purchaser, and provided that the requirements
of Section 8-405 of the Uniform Commercial Code in effect in any applicable
jurisdiction are met, the Escrow Agent shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Escrow Receipt, a new Escrow Receipt or Escrow Receipts and of like
Escrow Interest in the Account Amounts and bearing a number not
contemporaneously outstanding.
In connection with the issuance of any new Escrow Receipt under this
Section 1.05, the Escrow Agent may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Pass
Through Trustee and the Escrow Agent) connected therewith.
Any duplicate Escrow Receipt issued pursuant to this Section 1.05
shall constitute conclusive evidence of the appropriate Escrow Interest in the
Account Amounts, as if originally issued, whether or not the lost, stolen or
destroyed Escrow Receipt shall be found at any time.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Escrow
Receipts.
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Section 1.06. Additional Escrow Amounts. On the date of any Purchase
Withdrawal, the Pass Through Trustee may re-deposit with the Depositary some
or all of the amounts so withdrawn in accordance with Section 2.4 of the
Deposit Agreement.
Section 1.07. Resignation or Removal of Escrow Agent. Subject to the
appointment and acceptance of a successor Escrow Agent as provided below, the
Escrow Agent may resign at any time by giving 30 days' prior written notice
thereof to the Investors, but may not otherwise be removed except for cause by
the written consent of the Investors with respect to Investors representing
Escrow Interests aggregating not less than a majority in interest in the
Account Amounts (an "Action of Investors"). Upon any such resignation or
removal, the Investors, by an Action of Investors, shall have the right to
appoint a successor Escrow Agent. If no successor Escrow Agent shall have been
so appointed and shall have accepted such appointment within 30 days after the
retiring Escrow Agent's giving of notice of resignation or the removal of the
retiring Escrow Agent, then the retiring Escrow Agent may appoint a successor
Escrow Agent, which shall be a commercial bank which has an office in the
United States with a combined capital and surplus of at least $100,000,000.
Upon the acceptance of any appointment as Escrow Agent hereunder by a
successor Escrow Agent, such successor Escrow Agent shall enter into such
documents as the Pass Through Trustee shall require and shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be
discharged from its duties and obligations hereunder. No resignation or
removal of the Escrow Agent shall be effective unless a written confirmation
shall have been obtained from each of ▇▇▇▇▇'▇ Investors Service, Inc. and
Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., that the replacement of the Escrow Agent with the successor Escrow Agent
will not result in (a) a reduction of the rating for the Certificates below
the then current rating for the Certificates or (b) a withdrawal or suspension
of the rating of the Certificates.
Section 1.08. Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Escrow Agent and the Paying
Agent may treat the Person in whose name any Escrow Receipt is registered (as
of the day of determination) as the owner of such Escrow Receipt for the
purpose of receiving distributions pursuant to this Agreement and for all
other purposes whatsoever, and none of the Escrow Agent or the Paying Agent
shall be affected by any notice to the contrary.
Section 1.09. Further Assurances. The Escrow Agent agrees to take
such actions, and execute such other documents, as may be reasonably requested
by the Pass Through Trustee in order to effectuate the purposes of this
Agreement and the performance by the Escrow Agent of its obligations
hereunder.
SECTION 2. Paying Agent.
Section 2.01. Appointment of Paying Agent. The Escrow Agent hereby
irrevocably appoints and authorizes the Paying Agent to act as its paying
agent hereunder, for the benefit of the Investors, for such specific purposes
and with such powers as are specifically delegated to the Paying Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Paying Agent
under this Agreement or the Deposit Agreement shall be held in the Paying
Agent Account (as defined below) for the benefit of the Investors. The Paying
Agent (which term as used in this
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sentence shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents): (a) shall have no
duties or responsibilities except those expressly set forth in this Agreement,
and shall not by reason of this Agreement be a trustee for the Escrow Agent;
(b) shall not be responsible to the Escrow Agent for any recitals, statements,
representations or warranties of any person other then itself contained in
this Agreement or for the failure by the Escrow Agent or any other person or
entity (other than the Paying Agent) to perform any of its obligations
hereunder (whether or not the Paying Agent shall have any knowledge thereof);
and (c) except in respect of its express obligations hereunder, shall not be
responsible for any action taken or omitted to be taken by it hereunder or
provided for herein or in connection herewith, except for its own willful
misconduct or gross negligence (or simple negligence in connection with the
handling of funds).
Section 2.02. Establishment of Paying Agent Account. The Paying
Agent shall establish a deposit account (the "Paying Agent Account") at
Wilmington Trust Company in the name of the Escrow Agent. It is expressly
understood by the parties hereto that the Paying Agent is acting as the paying
agent of the Escrow Agent hereunder and that no amounts on deposit in the
Paying Agent Account constitute part of the Trust Property.
Section 2.03. Payments from Paying Agent Account. The Escrow Agent
hereby irrevocably instructs the Paying Agent, and the Paying Agent agrees to
act, as follows:
(a) On each Interest Payment Date (as defined in the Deposit
Agreement) or as soon thereafter as the Paying Agent has confirmed receipt in
the Paying Agent Account from the Depositary of any amount in respect of
accrued interest on the Deposits, the Paying Agent shall distribute out of the
Paying Agent Account the entire amount deposited therein by the Depositary.
There shall be so distributed to each Receiptholder of record on the 15th day
(whether or not a Business Day) preceding such Interest Payment Date by check
mailed to such Receiptholder, at the address appearing in the Register, such
Receiptholder's pro rata share (based on the Escrow Interest in the Account
Amounts held by such Receiptholder) of the total amount of interest deposited
by the Depositary in the Paying Agent Account on such date, except that, with
respect to Escrow Receipts registered on the Record Date in the name of The
Depository Trust Company ("DTC"), such distribution shall be made by wire
transfer in immediately available funds to the account designated by DTC.
(b) Upon the confirmation by the Paying Agent of receipt in the
Paying Agent Account from the Depositary of any amount in respect of the Final
Withdrawal, the Paying Agent shall forthwith distribute the entire amount of
the Final Withdrawal deposited therein by the Depositary to each Receiptholder
of record on the 15th day (whether or not a Business Day) preceding the Final
Withdrawal Date by check mailed to such Receiptholder, at the address
appearing in the Register, such Receiptholder's pro rata share (based on the
Escrow Interest in the Account Amounts held by such Receiptholder) of the
total amount in the Paying Agent Account on account of such Final Withdrawal,
except that, with respect to Escrow Receipts registered on such record date in
the name of DTC, such distribution shall be made by wire transfer in
immediately available funds to the account designated by DTC.
(c) If any payment of interest or principal in respect of the Final
Withdrawal is not received by the Paying Agent within five days of the
applicable date when due, then it shall
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be distributed to Receiptholders after actual receipt by the Paying Agent on
the same basis as a Special Payment is distributed under the Pass Through
Trust Agreement.
(d) The Paying Agent shall include with any check mailed pursuant to
this Section any notice required to be distributed under the Pass Through
Trust Agreement that is furnished to the Paying Agent by the Pass Through
Trustee.
Section 2.04. Withholding Taxes. The Paying Agent shall exclude and
withhold from each distribution of accrued interest on the Deposits (as
defined in the Deposit Agreement) and any amount in respect of the Final
Withdrawal any and all withholding taxes applicable thereto as required by
federal law of the United States. The Paying Agent agrees to act as such
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any
amounts payable in respect of the Deposits (as defined in the Deposit
Agreement) or the escrow amounts, to withhold such amounts and timely pay the
same to the appropriate authority in the name of and on behalf of the
Receiptholders, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each such Receiptholder appropriate documentation
showing the payment thereof, together with such additional documentary
evidence as such Receiptholder may reasonably request from time to time. The
Paying Agent agrees to file any other information reports as it may be
required to file under United States law. Each Receiptholder or beneficial
owner of an interest in an Escrow Receipt that is a Non-U.S. Person, by its
acceptance of an Escrow Receipt or a beneficial interest therein, agrees to
indemnify and hold harmless the Escrow Agent and the Paying Agent from and
against any improper failure to withhold Taxes from amounts payable to it or
for its benefit other than an improper failure attributable to the gross
negligence or willful misconduct of the Escrow Agent or the Paying Agent, as
the case may be. The Paying Agent agrees, to the extent required by the
Internal Revenue Code of 1986, as amended (the "Code"), and applicable federal
regulations thereunder, to withhold from each payment due hereunder or under
any Escrow Receipts, United States withholding taxes at the appropriate rate,
and, on a timely basis, to deposit such amounts with an authorized depository
and make such returns, filings and other reports in connection therewith as
are required by the Code. In the event that any withholding tax is imposed on
a payment to a Receiptholder, such tax shall reduce the amount otherwise
distributable to the Receiptholder in accordance with this Section. Any
Receiptholder which is organized under the laws of a jurisdiction outside the
United States shall, on or prior to the date such Receiptholder becomes a
Receiptholder, (a) so notify the Paying Agent, (b) (i) provide the Paying
Agent with Internal Revenue Service form W-8BEN or W-8ECI, as appropriate, or
(ii) notify the Paying Agent that it is not entitled to an exemption from
United States withholding tax or a reduction in the rate thereof on payments
of interest. Any such Receiptholder agrees by its acceptance of a Escrow
Receipt, on an ongoing basis, to provide like certification for each taxable
year and to notify the Paying Agent should subsequent circumstances arise
affecting the information provided the Paying Agent in clauses (a) and (b)
above. The Paying Agent shall be fully protected in relying upon, and each
Receiptholder by its acceptance of an Escrow Receipt agrees to indemnify and
hold the Paying Agent harmless against all claims or liability of any kind
arising in connection with or related to the Paying Agent's reliance upon any
documents, forms or information provided by any Receiptholder to the Paying
Agent. In addition, if the Paying Agent has not withheld taxes on any payment
made to any Receiptholder, and the Paying Agent is subsequently required to
remit to any taxing authority any such amount not withheld, such Receiptholder
shall return such amount to the Paying Agent upon written demand by the Paying
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Agent. The Paying Agent shall be liable only for direct (but not
consequential) damages to any Receiptholder due to the Paying Agent's
violation of the Code and only to the extent such liability is caused by the
Paying Agent's gross negligence or willful misconduct.
Section 2.05. Resignation or Removal of Paying Agent. Subject to the
appointment and acceptance of a successor Paying Agent as provided below, the
Paying Agent may resign at any time by giving 30 days' prior written notice
thereof to the Escrow Agent, but may not otherwise be removed except for cause
by the Escrow Agent. Upon any such resignation or removal, the Escrow Agent
shall have the right to appoint a successor Paying Agent. If no successor
Paying Agent shall have been so appointed and shall have accepted such
appointment within 30 days after the retiring Paying Agent's giving of notice
of resignation or the removal of the retiring Paying Agent, then the retiring
Paying Agent may (i) appoint a successor Paying Agent, which shall be a
commercial bank which has an office in the United States with a combined
capital and surplus of at least $100,000,000 or (ii) petition a court of
competent jurisdiction to appoint a successor. Upon the acceptance of any
appointment as Paying Agent hereunder by a successor Paying Agent, such
successor Paying Agent shall enter into such documents as the Escrow Agent
shall require and shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Paying Agent, and the
retiring Paying Agent shall be discharged from its duties and obligations
hereunder.
Section 2.06. Notice of Final Withdrawal. Promptly after receipt by
the Paying Agent of notice that the Escrow Agent has requested a Final
Withdrawal or that a Final Withdrawal will be made, the Paying Agent shall
cause notice of the distribution of the Final Withdrawal to be mailed to each
of the Receiptholders at its address as it appears in the Register. Such
notice shall be mailed not less than 20 days prior to the Final Withdrawal
Date. Such notice shall set forth:
(i) the Final Withdrawal Date and the date for determining
Receiptholders of record who shall be entitled to receive
distributions in respect of the Final Withdrawal,
(ii) the amount of the payment in respect of the Final
Withdrawal for each $1,000 face amount Certificate (based on
information provided by the Pass Through Trustee) and the amount
thereof constituting unused Deposits (as defined in the Deposit
Agreement) and interest thereon, and
(iii) if the Final Withdrawal Date is the same date as a
Regular Distribution Date, the total amount to be received on such
date for each $1,000 face amount Certificate (based on information
provided by the Pass Through Trustee).
Such mailing may include any notice required to be given to
Certificateholders in connection with such distribution pursuant to the Pass
Through Trust Agreement.
SECTION 3. Payments. If, notwithstanding the instructions in Section
4 of the Deposit Agreement that all amounts payable to the Escrow Agent under
the Deposit Agreement be paid by the Depositary directly to the Paying Agent
or the Pass Through Trustee (depending on the circumstances), the Escrow Agent
receives any payment thereunder, then the Escrow Agent shall forthwith pay
such amount in Dollars and in immediately available funds by wire transfer to
(a) in the
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case of a payment of accrued interest on the Deposits (as defined in the
Deposit Agreement) or any Final Withdrawal, directly to the Paying Agent
Account and (b) in the case of any Purchase Withdrawal, directly to the Pass
Through Trustee or its designee as specified and in the manner provided in the
Applicable Notice of Purchase Withdrawal and (c) in the case of any
Replacement Withdrawal (other than accrued interest), to the Replacement
Depositary as provided in the Replacement Depositary Agreement. The Escrow
Agent hereby waives any and all rights of set-off, combination of accounts,
right of retention or any similar right (whether arising under applicable law,
contract or otherwise) it may have against amounts payable to the Paying Agent
howsoever arising.
SECTION 4. Other Actions. The Escrow Agent shall take such other
actions under or in respect of the Deposit Agreement (including, without
limitation, the enforcement of the obligations of the Depositary thereunder)
as the Investors, by an Action of Investors, may from time to time request.
SECTION 5. Representations and Warranties of the Escrow Agent. The
Escrow Agent represents and warrants to ATA, the Investors, the Paying Agent
and the Pass Through Trustee as follows:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States
of America;
(ii) it has full power, authority and legal right to conduct its
business and operations as currently conducted and to enter
into and perform its obligations under this Agreement, the
Deposit Agreement and any Replacement Deposit Agreement;
(iii) the execution, delivery and performance of each of this
Agreement, the Deposit Agreement and any Replacement Deposit
Agreement have been duly authorized by all necessary corporate
action on the part of it and do not require any stockholder
approval, or approval or consent of any trustee or holder of
any indebtedness or obligations of it, and each such document
has been duly executed and delivered by it and constitutes its
legal, valid and binding obligations enforceable against it in
accordance with the terms hereof or thereof except as such
enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws or equitable
principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of
whether such enforceability is considered in a proceeding in
equity or at law);
(iv) no authorization, consent or approval of or other action by,
and no notice to or filing with, any United States federal or
state governmental authority or regulatory body is required for
the execution, delivery or performance by it of this Agreement
or the Deposit Agreement or any Replacement Deposit Agreement;
11
(v) neither the execution, delivery or performance by it of this
Agreement or the Deposit Agreement or any Replacement Deposit
Agreement, nor compliance with the terms and provisions hereof
or thereof, conflicts or will conflict with or results or will
result in a breach or violation of any of the terms, conditions
or provisions of, or will require any consent or approval
under, any law, governmental rule or regulation or the charter
documents, as amended, or bylaws, as amended, of it or any
similar instrument binding on it or any order, writ, injunction
or decree of any court or governmental authority against it or
by which it or any of its properties is bound or any indenture,
mortgage or contract or other agreement or instrument to which
it is a party or by which it or any of its properties is bound,
or constitutes or will constitute a default thereunder or
results or will result in the imposition of any lien upon any
of its properties; and
(vi) there are no pending or, to its knowledge, threatened actions,
suits, investigations or proceedings (whether or not
purportedly on behalf of it) against or affecting it or any of
its property before or by any court or administrative agency
which, if adversely determined, (A) would adversely affect the
ability of it to perform its obligations under this Agreement
or the Deposit Agreement or any Replacement Deposit Agreement
or (B) would call into question or challenge the validity of
this Agreement or the Deposit Agreement or the enforceability
hereof or thereof in accordance with the terms hereof or
thereof, nor is the Escrow Agent in default with respect to any
order of any court, governmental authority, arbitration board
or administrative agency so as to adversely affect its ability
to perform its obligations under this Agreement or the Deposit
Agreement.
SECTION 6. Representations and Warranties of the Paying Agent. The
Paying Agent represents and warrants to ATA, the Investors, the Escrow Agent
and the Pass Through Trustee as follows:
(i) it is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of
Delaware;
(ii) it has full power, authority and legal right to conduct its
business and operations as currently conducted and to enter
into and perform its obligations under this Agreement;
(iii) the execution, delivery and performance of this Agreement has
been duly authorized by all necessary corporate action on the
part of it and does not require any stockholder approval, or
approval or consent of any trustee or holder of any
indebtedness or obligations of it, and such document has been
duly executed and delivered by it and constitutes its legal,
valid and binding obligations enforceable against it in
accordance with the terms hereof except as such enforceability
may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of
12
creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(iv) no authorization, consent or approval of or other action by,
and no notice to or filing with, any Delaware state
governmental or United States federal authority or regulatory
body governing its banking or trust powers is required for the
execution, delivery or performance by it of this Agreement;
(v) neither the execution, delivery or performance by it of this
Agreement, nor compliance with the terms and provisions hereof,
conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under,
any law, governmental rule or regulation or the charter
documents, as amended, or bylaws, as amended, of it or any
similar instrument binding on it or any order, writ, injunction
or decree of any court or governmental authority against it or
by which it or any of its properties is bound or any indenture,
mortgage or contract or other agreement or instrument to which
it is a party or by which it or any of its properties is bound,
or constitutes or will constitute a default thereunder or
results or will result in the imposition of any lien upon any
of its properties; and
(vi) there are no pending or, to its knowledge, threatened actions,
suits, investigations or proceedings (whether or not
purportedly on behalf of it) against or affecting it or any of
its property before or by any court or administrative agency
which, if adversely determined, (A) would adversely affect the
ability of it to perform its obligations under this Agreement
or (B) would call into question or challenge the validity of
this Agreement or the enforceability hereof in accordance with
the terms hereof, nor is the Paying Agent in default with
respect to any order of any court, governmental authority,
arbitration board or administrative agency so as to adversely
affect its ability to perform its obligations under this
Agreement.
SECTION 7. Indemnification. Except for actions expressly authorized
or required of the Escrow Agent or the Paying Agent hereunder, each of the
Escrow Agent and the Paying Agent shall in all cases be fully justified in
failing or refusing to act hereunder unless it shall have been indemnified by
the party requesting such action in a manner reasonably satisfactory to it
against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. In the event ATA
requests any amendment to any Operative Agreement (as defined in Annex A to
the Note Purchase Agreement), the Pass Through Trustee agrees to pay all
reasonable fees and expenses (including, without limitation, reasonable fees
and disbursements of counsel) of the Escrow Agent and the Paying Agent in
connection therewith.
SECTION 8. Amendment, Etc. Upon request of the Pass Through Trustee
and approval by an Action of Investors, the Escrow Agent and the Paying Agent
shall enter into an amendment to this Agreement, so long as such amendment
does not
13
adversely affect the rights or obligations of the Escrow Agent or the Paying
Agent or the rights of the Investors, provided that upon request of the Pass
Through Trustee and without any consent of the Investors, the Escrow Agent
shall enter into an amendment to this Agreement for any of the following
purposes:
(1) to correct or supplement any provision in this Agreement
which may be defective or inconsistent with any other provision
herein or to cure any ambiguity or correct any mistake or to modify
any other provision with respect to matters or questions arising
under this Agreement, provided that any such action shall not
materially adversely affect the interests of the Investors; or
(2) to comply with applicable law, any requirement of the SEC,
any federal or state banking rule or regulation or the rules or
regulations of any applicable regulatory body; or
(3) to evidence and provide for the acceptance of appointment
under this Agreement of a successor Escrow Agent, successor Paying
Agent or successor Pass Through Trustee.
SECTION 9. Notices. Unless otherwise expressly provided herein, any
notice or other communication under this Agreement shall be in writing
(including by facsimile) and shall be deemed to be given and effective upon
receipt thereof. All notices shall be sent to (a) in the case of the
Investors, as their respective addresses shall appear in the Register, (b) in
the case of the Escrow Agent, First Security Bank, National Association, ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Services (Telecopier: (801) 246- 5053), (c) in the case of the Pass
Through Trustee, Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration
(Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇) or (d) in the case of the Paying Agent,
Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration (Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇), in each case with a copy to American Trans Air, Inc., ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Chief Financial Officer (Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇) (or at such other
address as any such party may specify from time to time in a written notice to
the other parties). On or prior to the execution of this Agreement, the Pass
Through Trustee has delivered to the Escrow Agent a certificate containing
specimen signatures of the representatives of the Pass Through Trustee who are
authorized to give notices and instructions with respect to this Agreement.
The Escrow Agent may conclusively rely on such certificate until the Escrow
Agent receives written notice from the Pass Through Trustee to the contrary.
SECTION 10. Transfer. No party hereto shall be entitled to assign or
otherwise transfer this Agreement (or any interest herein) other than (in the
case of the Escrow Agent) to a successor escrow agent under Section 1.06
hereof or (in the case of the Paying Agent) to a successor paying agent under
Section 2.05 hereof,
14
and any purported assignment in violation thereof shall be void. This
Agreement shall be binding upon the parties hereto and their respective
successors and (in the case of the Escrow Agent and the Paying Agent) their
respective permitted assigns. Upon the occurrence of the Transfer (as defined
below) contemplated by the Assignment and Assumption Agreement (as defined
below), the Pass Through Trustee shall (without further act) be deemed to have
transferred all of its right, title and interest in and to this Agreement to
the trustee of the Successor Trust (as defined below) and, thereafter, the
trustee of the Successor Trust shall be deemed to be the "Pass Through
Trustee" hereunder with the rights and obligations of the "Pass Through
Trustee" hereunder and each reference herein to "American Trans Air 2000-1G-O
Pass Through Trust" shall be deemed to be a reference to "American Trans Air
2000-1A-S Pass Through Trust". The parties hereto hereby acknowledge and
consent to the Transfer contemplated by the Assignment and Assumption
Agreement. As used herein, "Transfer" means the transfers of the assets to the
Successor Trust contemplated by the Assignment and Assumption Agreement;
"Assignment and Assumption Agreement" means the Assignment and Assumption
Agreement to be entered into between the Pass Through Trustee and the trustee
of the Successor Trust, substantially in the form of Exhibit E to the Pass
Through Trust Agreement; "Successor Trust" means the American Trans Air
2000-1A-S Pass Through Trust.
SECTION 11. Entire Agreement. This Agreement sets forth all of the
promises, covenants, agreements, conditions and understandings among the
Escrow Agent, the Paying Agent, the Initial Purchasers and the Pass Through
Trustee with respect to the subject matter hereof, and supersedes all prior
and contemporaneous agreements and undertakings, inducements or conditions,
express or implied, oral or written.
SECTION 12. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 13. Waiver of Jury Trial Right. EACH OF THE ESCROW AGENT,
THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE ACKNOWLEDGES AND
ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
SECTION 14. Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one
instrument.
15
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the Initial
Purchasers and the Pass Through Trustee have caused this Escrow and Paying
Agent Agreement (Class G) to be duly executed as of the day and year first
above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
as Escrow Agent
By________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
CHASE SECURITIES INC., AND
BANC ONE CAPITAL MARKETS, INC.,
as Initial Purchasers
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC
By________________________________
Name:
Title:
WILMINGTON TRUST COMPANY, not
in its individual capacity,
but solely as Pass Through
Trustee for and on behalf of
American Trans Air 2000-1G-O
Pass Through Trust
By________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Paying Agent
By________________________________
Name:
Title:
16
EXHIBIT A
AMERICAN TRANS AIR 2000-1G ESCROW RECEIPT
No. __
This Escrow Receipt evidences a fractional undivided interest in
amounts ("Account Amounts") from time to time deposited into a certain paying
agent account (the "Paying Agent Account") described in the Escrow and Paying
Agent Agreement (Class G) dated as of February 15, 2000 (as amended, modified
or supplemented from time to time, the "Escrow and Paying Agent Agreement")
among First Security Bank, National Association, as Escrow Agent (in such
capacity, together with its successors in such capacity, the "Escrow Agent"),
Salomon Brothers Inc, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Chase Securities
Inc., and Banc One Capital Markets, Inc., as Initial Purchasers, Wilmington
Trust Company, as Pass Through Trustee (in such capacity, together with its
successors in such capacity, the "Pass Through Trustee") and Wilmington Trust
Company, as paying agent (in such capacity, together with its successors in
such capacity, the "Paying Agent"). Capitalized terms not defined herein shall
have the meanings assigned to them in the Escrow and Paying Agent Agreement.
This Escrow Receipt is issued under and is subject to the terms,
provisions and conditions of the Escrow and Paying Agent Agreement. By virtue
of its acceptance hereof the holder of this Escrow Receipt assents and agrees
to be bound by the provisions of the Escrow and Paying Agent Agreement and
this Escrow Receipt.
This Escrow Receipt represents a fractional undivided interest in
amounts deposited from time to time in the Paying Agent Account, and grants or
represents no rights, benefits or interests of any kind in respect of any
assets or property other than such amounts. This Escrow Receipt evidences the
same percentage interest in the Account Amounts as the Fractional Undivided
Interest in the Pass Through Trust evidenced by the Certificate to which this
Escrow Receipt is affixed.
All payments and distributions made to Receiptholders in respect of
the Escrow Receipt shall be made only from Account Amounts deposited in the
Paying Agent Account. The holder of this Escrow Receipt, by its acceptance of
this Escrow Receipt, agrees that it will look solely to the Account Amounts
for any payment or distribution due to it pursuant to this Escrow Receipt and
that it will not have any recourse to ATA, the Pass Through Trustee, the
Paying Agent or the Escrow Agent, except as expressly provided herein or in
the Pass Through Trust Agreement. No Receiptholder of this Escrow Receipt
shall have any right to vote or in any manner otherwise control the operation
and management of the Paying Agent Account, nor shall anything set forth
herein, or contained in the terms of this Escrow Receipt, be construed so as
to constitute the Receiptholders from time to time as partners or members of
an association.
This Escrow Receipt may not be assigned or transferred except in
connection with the assignment or transfer of the Certificate to which this
Escrow Receipt is affixed. After payment to the holder hereof of its Escrow
Interest in the Final Distribution, upon the request of
17
the Pass Through Trustee, the holder hereof will return this Escrow Receipt to
the Pass Through Trustee.
The Paying Agent may treat the person in whose name the Certificate
to which this Escrow Receipt is attached as the owner hereof for all purposes,
and the Paying Agent shall not be affected by any notice to the contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK.
18
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt
to be duly executed.
Dated: February 15, 2000
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
as Escrow Agent
By________________________________
Name:
Title:
19
EXHIBIT B
WITHDRAWAL CERTIFICATE
(Class G)
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.] [We
hereby notify you that the Depositary is being replaced in accordance with
Section 4(a)(vii) of the Note Purchase Agreement.] 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 (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Global Agency & Trust Services.
Very truly yours,
WILMINGTON TRUST COMPANY
not in its individual capacity buy
solely as Pass Through Trustee
By:
Name:
Title:
Dated: _______ __, ___