EXECUTION COPY
--------------------------------------------------------------------------------
DELAYED FUNDING IMPLEMENTATION AGREEMENT
Dated as of March 28, 2002
among
AMERICAN TRANS AIR, INC.,
Company
AMTRAN, INC.,
Guarantor
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
WILMINGTON TRUST COMPANY,
as Subordination Agent
▇▇▇▇▇ FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
WILMINGTON TRUST COMPANY,
as Paying Agent
AIG MATCHED FUNDING CORP.,
as Class A Liquidity Provider and Class B Liquidity Provider
NYALA FUNDING LLC
as Initial Purchaser of Class A Certificates
PK AIRFINANCE US, INC.
as Initial Purchaser of Class B Certificates
--------------------------------------------------------------------------------
DELAYED FUNDING IMPLEMENTATION AGREEMENT
This DELAYED FUNDING IMPLEMENTATION AGREEMENT, dated as of March 28,
2002, among (i) AMERICAN TRANS AIR, INC., an Indiana corporation (the
"Company"), (ii) AMTRAN, INC., an Indiana corporation ("Amtran"), (iii)
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 "Trustee") under each of the two separate Pass Through
Trust Agreements (as defined below), (iv) WILMINGTON TRUST COMPANY, a Delaware
banking corporation, not in its individual capacity, 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) ▇▇▇▇▇ FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national
banking association, as escrow agent (in such capacity together with its
successors in such capacity, the "Escrow Agent"), under each of the Escrow and
Paying Agent Agreements (as defined below), (vi) WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity, 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, (vii)
AIG MATCHED FUNDING CORP., not in its individual capacity except as otherwise
expressly provided herein, but solely as Class A Liquidity Provider and Class B
Liquidity Provider (in such capacity together with its successors in such
capacity, the "Liquidity Provider") under each of the Revolving Credit
Agreements (as defined below), (viii) NYALA FUNDING LLC, as initial purchaser
(the "Class A Purchaser"), under the Class A Certificate Purchase Agreement (as
defined below) and (ix) PK AIRFINANCE US, INC., as initial purchase (the "Class
B Purchaser") under the Class B Certificate Purchase Agreement (as defined
below).
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 the Operative Agreements (as defined below);
WHEREAS, the Company, Amtran and the Trustee have contemporaneously
herewith entered into two separate Pass Through Trust Agreements dated as of
March 28, 2002 relating to, respectively, American Trans Air 2002-1A Pass
Through Trust and American Trans Air 2002-1B Pass Through Trust (the "Pass
Through Trusts") (such Agreements, as amended, modified or supplemented from
time to time in accordance with the terms thereof, the "Pass Through Trust
Agreements") pursuant to which the American Trans Air Pass Through Trust, Series
2002-1A Certificates (the "Class A Certificates") and American Trans Air 2002-1B
Pass Through Trust Certificates (the "Class B Certificates", and together with
the Class A Certificates, the "Certificates") are being issued, respectively;
WHEREAS, the Escrow Agent, the Trustee and the Paying Agent have
contemporaneously herewith entered into two separate Escrow and Paying Agent
Agreements with the Class A Purchaser and the Class B Purchaser, respectively
(the "Escrow and Paying Agent Agreements");
WHEREAS, the Escrow Agent has contemporaneously herewith entered into
two separate deposit agreements with the INTESABCI S.p.A, acting through its New
York Branch, (the "Depositary") for each Pass Through Trust (the "Deposit
Agreements"), for the benefit of the Certificateholder of each Pass Through
Trust;
WHEREAS, the Company, Amtran, the Investors (as defined in the
Registration Rights Agreement) and the Trustee have contemporaneously herewith
entered into a registration rights agreement (the "Registration Rights
Agreement") for the benefit of the Certificateholders of each Pass Through
Trust;
WHEREAS, (i) the Liquidity Provider has contemporaneously herewith
entered into two separate revolving credit agreements (the "Revolving Credit
Agreements"), one each for the benefit of the Certificateholders of each Pass
Through Trust, with the Subordination Agent, as agent for the Trustee on behalf
of each such Pass Through Trust and (ii) the Trustee, the Liquidity Provider and
the Subordination Agent have entered into the Intercreditor Agreement, dated as
of the date hereof (the "Intercreditor Agreement");
WHEREAS, contemporaneously herewith American International Group, Inc.
has executed two guarantee agreements, each guaranteeing the payment obligations
of the initial Liquidity Provider under the related Liquidity Facility;
WHEREAS, the Company and Amtran have contemporaneously herewith entered
into two separate Certificate Purchase Agreements with (i) the Class A Purchaser
of $111,716,000 principal amount of the Class A Certificates (the "Class A
Certificate Purchase Agreement") and (ii) with the Class B Purchaser, as initial
purchaser of $31,131,000 principal amount of the Class B Certificates (the
"Class B Certificate Purchase Agreement");
WHEREAS, the Company and Amtran have contemporaneously herewith entered
into two separate letter agreements (i) one with the Class A Purchaser and AIG
Financial Products Corp. providing for the purchase of an additional $91,896,000
principal amount of the Class A Certificates (the "Additional Class A
Certificates") and (ii) one with the Class B Purchaser providing for the
purchase of an additional $26,904,000 principal amount of the Class B
Certificates (the "Additional Class B Certificates", and together with the
Additional Class A Certificates, the "Additional Certificates"), in each case on
October 15, 2002 or such other date mutually agreed to by the Company, Amtran,
the Class A Purchaser and the Class B Purchaser (such date, the "Delayed Funding
Date");
WHEREAS, the parties hereto agree that simultaneously with the issuance
of the Additional Certificates, the Operative Agreements (which term as used in
this Agreement, shall mean the Pass Through Trust Agreements, the Note Purchase
Agreement, the Revolving Credit Agreements, the Escrow and Paying Agent
Agreements, and the Intercreditor Agreement) will be amended as provided in this
Agreement without any further action on the part of any party hereto and without
the consent of any holder of any of the Certificates or Escrow Receipts;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy
2
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.01 Amendments to the Note Purchase Agreement. Simultaneously
with the issuance of the Additional Certificates, the Note Purchase Agreement
shall be amended as provided below.
(a) The definition of the term "Delivery Period Termination Date"
contained in Annex A of the Note Purchase Agreement shall be amended by
replacing "September 29, 2002" appearing therein with "February 28, 2003".
(b) Section 1(a) of the Note Purchase Agreement shall be amended by
replacing "Schedule I-A" appearing therein with "Schedule I-B".
(c) Section 1(g)(i) of the Note Purchase Agreement shall be amended by
replacing "Schedule I-A" appearing therein with "Schedule I-B"; and Section
1(g)(ii) of the Note Purchase Agreement shall be amended by replacing "September
29, 2002" appearing therein with "February 28, 2003".
(d) Schedule VI to the Note Purchase Agreement shall be amended by
substituting therefor the Schedule VI attached to this Agreement as Exhibit A.
(e) Schedule VII to the Note Purchase Agreement shall be amended by
substituting therefor the Schedule VII attached to this Agreement as Exhibit B.
SECTION 1.02 Amendments to Revolving Credit Agreements.
(a) Simultaneously with the issuance of the Additional Certificates,
the Revolving Credit Agreement relating to the Class A Certificates (the "Class
A Revolving Credit Agreement" ) shall be amended as provided below.
(i) The definition of the term "Maximum Commitment" contained
in Section 1.1 of the Class A Revolving Credit Agreement shall be
amended by (x) replacing "$14,793,433" appearing therein with
"$26,828,366" and (y) deleting the proviso therein.
(ii) Section 2.4(a) of the Class A Revolving Credit Agreement
shall be amended by substituting therefor the following:
Automatic Adjustments. Promptly following each date on which
the Required Amount is (i) reduced as a result of a reduction in the
Pool Balance of the Class A Certificates or otherwise, (ii) increased
as a result of an increase in the Stated Interest Rate, (iii)
subsequent to an increase described in clause (ii), reduced pursuant to
the definition of "Stated Interest Rate", or (iv) increased as a result
of an increase in the Pool
3
Balance of the Class A Certificates resulting from the issuance of the
Additional Class A Certificates (as defined in the Delayed Funding
Implementation Agreement), the Maximum Commitment shall automatically
be reduced or increased, as the case may be, to an amount equal to the
Required Amount (as calculated by the Borrower). The Borrower shall
give notice of any such automatic adjustment of the Maximum Commitment
to the Liquidity Provider (with a copy to Amtran) within two Business
Days thereof. The failure by the Borrower to furnish any such notice
shall not affect such automatic reduction or increase of the Maximum
Commitment.
(b) Simultaneously with the issuance of the Additional Certificates,
the Revolving Credit Agreement relating to the Class B Certificates (the "Class
B Revolving Credit Agreement") shall be amended as provided below.
(i) The definition of the term "Maximum Commitment" contained
in Section 1.1 of the Class B Revolving Credit Agreement shall be
amended by (x) replacing "$5,229,541" appearing therein with
"$9,662,940" and (y) deleting the proviso therein.
(ii) The Section 2.4(a) of the Class B Revolving Credit
Agreement shall be amended by substituting therefor the following:
Automatic Adjustments. Promptly following each date on which
the Required Amount is (i) reduced as a result of a reduction in the
Pool Balance of the Class B Certificates or otherwise, (ii) increased
as a result of an increase in the Stated Interest Rate, (iii)
subsequent to an increase described in clause (ii), reduced pursuant to
the definition of "Stated Interest Rate", or (iv) increased as a result
of an increase in the Pool Balance of the Class B Certificates
resulting from the issuance of the Additional Class B Certificates (as
defined in the Delayed Funding Implementation Agreement), the Maximum
Commitment shall automatically be reduced or increased, as the case may
be, to an amount equal to the Required Amount (as calculated by the
Borrower). The Borrower shall give notice of any such automatic
adjustment of the Maximum Commitment to the Liquidity Provider (with a
copy to Amtran) within two Business Days thereof. The failure by the
Borrower to furnish any such notice shall not affect such automatic
reduction or increase of the Maximum Commitment.
SECTION 1.03 Amendments to the Escrow and Paying Agent Agreements.
(a) Simultaneously with the issuance of the Additional Certificates,
the Escrow and Paying Agent Agreement relating to the Class A Certificates (the
"Class A Escrow Agreement") shall be amended as provided below.
(i) Section 1.02 of the Class A Escrow Agreement shall be
amended by (A) replacing "September 29, 2002" appearing in clause
(g)(i) and the last sentence thereof with "February 28, 2003" and (B)
replacing "October 14, 2002" appearing in the last sentence of Section
1.02 with "March 17, 2003".
4
(ii) Section 1.03 of the Class A Escrow Agreement shall be
amended by adding a second paragraph to such Section to read as
follows:
The Escrow Agent hereby directs the Purchaser to, and the Purchaser
hereby acknowledges that on the Delayed Funding Date (as defined in the Delayed
Funding Implementation Agreement) it shall, irrevocably deliver by wire transfer
to the Depositary on behalf of the Escrow Agent an amount in Dollars and
immediately available funds equal to $68,969,100 for deposit on behalf of the
Escrow Agent with the Depositary in accordance with Section 2.1 of the Deposit
Agreement. The Purchaser hereby instructs the Escrow Agent, upon receipt of such
sum from the Purchaser, to confirm such receipt by executing and delivering to
the Pass Through Trustee an Escrow Receipt (a) to be affixed by the Pass Through
Trustee to each Additional Class A Certificate (as defined in the Delayed
Funding Implementation Agreement) being issued on the Delayed Funding Date 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 by the Additional Class A
Certificate to which it is to be affixed.
(b) Simultaneously with the issuance of the Additional Certificates,
the Escrow and Paying Agent Agreement relating to the Class B Certificates (the
"Class B Escrow Agreement") shall be amended as provided below.
(i) Section 1.02 of the Class B Escrow Agreement shall be
amended by (A) replacing "September 29, 2002" appearing in clause
(g)(i) and the last sentence thereof with "February 28, 2003" and (B)
replacing "October 14, 2002" appearing in the last sentence of Section
1.02 with "March 17, 2003".
(c) Section 1.03 of the Class B Escrow Agreement shall be amended by
adding a second paragraph to such Section to read as follows:
The Escrow Agent hereby directs the Purchaser to, and the Purchaser
hereby acknowledges that on the Delayed Funding Date (as defined in the Delayed
Funding Implementation Agreement) it shall, irrevocably deliver by wire transfer
to the Depositary on behalf of the Escrow Agent an amount in Dollars and
immediately available funds equal to $20,130,900 for deposit on behalf of the
Escrow Agent with the Depositary in accordance with Section 2.1 of the Deposit
Agreement. The Purchaser hereby instructs the Escrow Agent, upon receipt of such
sum from the Purchaser, to confirm such receipt by executing and delivering to
the Pass Through Trustee an Escrow Receipt (a) to be affixed by the Pass Through
Trustee to each Additional Class B Certificate (as defined in the Delayed
Funding Implementation Agreement) being issued on the Delayed Funding Date 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 by the Additional Class B
Certificate to which it is to be affixed.
SECTION 1.04 Amendment to the Intercreditor Agreement. Simultaneously
with the issuance of the Additional Certificates, the following definitions
contained in Article I of the Intercreditor Agreement shall be amended as
provided below:
5
(a) The definition of the term "Delivery Period Expiry Date" shall be
amended by replacing "September 29, 2002" appearing therein with "February 28,
2003".
(b) The definitions of the terms "Adjusted Expected Distributions" and
"Expected Distributions" shall be amended by adding the following sentence at
the end thereof:
For the purpose of calculating the amount specified in clause (x)
above, interest on a portion of the Certificates of such Trust corresponding to
the Certificates of such Trust issued on the Delayed Funding Date shall begin
accruing from (and including) the Delayed Funding Date.
(c) The definition of the term "Pool Balance" shall be amended by
substituting therefor the following:
"Pool Balance" means, with respect to each Trust or the Certificates
issued by any Trust, as of any date, (i) the sum of the original face amount of
the Certificates of such Trust issued on the Closing Date and on the Delayed
Funding Date less (ii) the aggregate amount of all payments made in respect of
the Certificates of such Trust or in respect of Deposits relating to such Trust,
other than payments made in respect of interest or premium thereon or
reimbursement of any costs and expenses in connection therewith. The Pool
Balance for each Trust or for the Certificates issued by any Trust as of any
Distribution Date shall be computed after giving effect to any special
distribution with respect to unused Deposits, any payment of principal of the
Equipment Notes or payment with respect to other Trust Property held in such
Trust and the distribution thereof to be made on that date.
SECTION 1.05 Amendments to the Pass Through Trust Agreements and the
Certificates.
(a) Simultaneously with the issuance of the Additional Certificates,
the Pass Through Trust Agreement relating to the Class A Certificates (the
"Class A Pass Through Trust Agreement") and the Class A Certificates shall be
amended as provided below.
(i) Section 2.01(a) of the Class A Pass Through Trust
Agreement shall be amended by substituting therefor the following:
The Trustee is hereby directed to (i) execute and deliver the
Intercreditor Agreement, the Registration Rights Agreement, the Delayed Funding
Implementation Agreement, the Escrow Agreement and the Note Purchase Agreement
on or prior to the Issuance Date, each in the form delivered to the Trustee by
the Company and (ii) subject to the respective terms thereof, to perform its
obligations thereunder. Upon the request of the Company and the satisfaction or
waiver of the closing conditions specified in the Certificate Purchase
Agreement, the Trustee shall execute, deliver, authenticate, issue and sell
Certificates in authorized denominations equaling in the aggregate the amount
set forth in Schedule A to the Certificate Purchase Agreement. Upon the request
of the Company, the Trustee shall execute, deliver, authenticate, issue and sell
the Additional Class A Certificates (as defined in the Delayed Funding
Implementation Agreement) in authorized denominations equaling in the aggregate
the
6
amount set forth in the Delayed Funding Implementation Agreement, which amount,
together with the amount of Certificates issued pursuant to the immediately
preceding sentence, shall evidence the entire ownership interest in the Trust
and shall equal the maximum aggregate principal amount of Equipment Notes which
may be purchased by the Trustee pursuant to the Note Purchase Agreement. Except
as provided in Sections 3.04, 3.05, 3.06, 3.07 and 3.10 hereof, the Trustee
shall not execute, authenticate or deliver Certificates in excess of the
aggregate amount specified in this paragraph. The Additional Class A
Certificates shall be identical to the Certificates issued on the Issuance Date.
(ii) Section 3.03(a) of the Class A Pass Through Trust
Agreement shall be amended by substituting therefor the following:
The Trustee shall duly execute, authenticate and deliver (i) on the
Issuance Date Certificates in authorized denominations in the aggregate amount
of $111,716,000, and (ii) on the Delayed Funding Date, Additional Class A
Certificates in authorized denominations equaling in the aggregate the amount
set forth in the Delayed Funding Implementation Agreement, which aggregate
amount of Certificates and Additional Class A Certificates shall evidence the
entire ownership interest in the Trust and shall equal the maximum aggregate
principal amount of Equipment Notes which may be purchased by the Trustee
pursuant to the Note Purchase Agreement.
(iii) The Private Placement Legend (as defined in the Class A
Pass Through Trust Agreement) set forth in Section 3.02(a) and Exhibit
A of the Class A Pass Through Trust Agreement and in the Class A
Certificates issued on the Issuance Date (as defined in the Class A
Pass Through Trust Agreement) shall be amended by:
(x) inserting after each reference to "(OR ANY
SUCCESSOR PROVISION)" therein "(ASSUMING SUCH PERIOD WILL
COMMENCE ON THE DELAYED FUNDING DATE (AS DEFINED IN THE
DELAYED FUNDING IMPLEMENTATION AGREEMENT)"; and
(y) inserting after "(IF AVAILABLE)" therein
"(ASSUMING THAT THE TIME PERIOD REFERRED TO IN RULE 144(K) (OR
ANY SUCCESSOR PROVISION) WILL COMMENCE ON THE DELAYED FUNDING
DATE (AS DEFINED IN THE DELAYED FUNDING IMPLEMENTATION
AGREEMENT)".
(iv) The percentage ownership interest represented by $1,000
of Reference Principal Amount (as defined in the Class A Pass Through
Trust Agreement) set forth in Exhibit A to the Class A Pass Through
Trust Agreement and the Class A Certificates shall be changed from
0.00089513% to 0.00049113%.
(b) Simultaneously with the issuance of the Additional Certificates,
the Pass Through Trust Agreement relating to the Class B Certificates (the
"Class B Pass Through Trust Agreement") shall be amended as provided below.
7
(i) Section 2.01(a) of the Class B Pass Through Trust
Agreement shall be amended by substituting therefor the following:
The Trustee is hereby (i) authorized and directed to execute and
deliver the Intercreditor Agreement, the Registration Rights Agreement, the
Delayed Funding Implementation Agreement, the Escrow Agreement and the Note
Purchase Agreement on or prior to the Issuance Date, each in the form delivered
to the Trustee by the Company and (ii) authorized, subject to the respective
terms thereof, to perform its obligations thereunder. Upon the request of the
Company and the satisfaction or waiver of the closing conditions specified in
the Certificate Purchase Agreement, the Trustee shall execute, deliver,
authenticate, issue and sell Certificates in authorized denominations equaling
in the aggregate the amount set forth in Schedule A to the Certificate Purchase
Agreement. Upon the request of the Company, the Trustee shall execute, deliver,
authenticate, issue and sell the Additional Class B Certificates (as defined in
the Delayed Funding Implementation Agreement) in authorized denominations
equaling in the aggregate the amount set forth in the Delayed Funding
Implementation Agreement, which amount, together with the amount of Certificates
issued pursuant to the immediately preceding sentence, shall evidence the entire
ownership interest in the Trust and shall equal the maximum aggregate principal
amount of Equipment Notes which may be purchased by the Trustee pursuant to the
Note Purchase Agreement. Except as provided in Sections 3.04, 3.05, 3.06, 3.07
and 3.10 hereof, the Trustee shall not execute, authenticate or deliver
Certificates in excess of the aggregate amount specified in this paragraph. The
Additional Class B Certificates shall be identical to the Certificates issued on
the Issuance Date.
(ii) Section 3.03(a) of the Class B Pass Through Trust
Agreement shall be amended by substituting therefor the following:
The Trustee shall duly execute, authenticate and deliver (i) on the
Issuance Date Certificates in authorized denominations in the aggregate amount
of $31,131,000, and (ii) on the Delayed Funding Date, Additional Class B
Certificates in authorized denominations equaling in the aggregate the amount
set forth in the Delayed Funding Implementation Agreement, which aggregate
amount of Certificates and Additional Class B Certificates shall evidence the
entire ownership interest in the Trust and shall equal the maximum aggregate
principal amount of Equipment Notes which may be purchased by the Trustee
pursuant to the Note Purchase Agreement.
(iii) The Private Placement Legend (as defined in the Class B
Pass Through Trust Agreement) set forth in Section 3.02(a) and Exhibit
A of the Class B Pass Through Trust Agreement and in the Class B
Certificates issued on the Issuance Date (as defined in the Class B
Pass Through Trust Agreement) shall be amended by:
(x) inserting after each reference to "(OR ANY
SUCCESSOR PROVISION)" therein "(ASSUMING SUCH PERIOD WILL
COMMENCE ON THE DELAYED FUNDING DATE (AS DEFINED IN THE
DELAYED FUNDING IMPLEMENTATION AGREEMENT)"; and
(y) inserting after "(IF AVAILABLE)" therein
"(ASSUMING THAT
8
THE TIME PERIOD REFERRED TO IN RULE 144(K) (OR ANY SUCCESSOR
PROVISION) WILL COMMENCE ON THE DELAYED FUNDING DATE (AS
DEFINED IN THE DELAYED FUNDING IMPLEMENTATION AGREEMENT)".
(iv) The percentage ownership interest represented by $1,000
of Reference Principal Amount (as defined in the Class B Pass Through
Trust Agreement) set forth in Exhibit A to the Class B Pass Through
Trust Agreement and the Class B Certificates shall be changed from
0.00321223% to 0.00172310%.
ARTICLE II
MISCELLANEOUS
SECTION 2.01 Ratification Agreement. Each party hereto agrees and
acknowledges that effective as of the Delayed Funding Date, simultaneously with
the issuance of the Additional Certificates:
(a) (i) the Pool Balance of the Class A Certificates shall be
increased by $91,896,000 and (ii) the Pool Balance of the Class B
Certificates shall be increased by $26,904,000;
(b) (i) the Required Amount under the Class A Liquidity
Facility shall be increased by $12,034,933 and (ii) the Required Amount
under the Class B Liquidity Facility shall be increased by $4,433,399
and
(c) (i) the Deposits held by the Depositary in respect of the
Class A Certificates under the Delayed Deposit Agreement for such Class
shall be $68,969,100 and (ii) the Deposits held by the Depositary in
respect of the Class B Certificates under the Delayed Deposit Agreement
for such Class shall be $20,130,900.
SECTION 2.02 Non-Occurrence of Delayed Funding Date. If for any reason
the Delayed Funding Date does not occur prior to November 20, 2002, the
amendments to the Operative Agreements contemplated by this Agreement shall not
become effective and no party to this Agreement shall have any right or claim
against any other party hereto with respect to this Agreement.
SECTION 2.03 Further Assurances. Each party hereto agrees to effect
such other amendments to the Operative Agreements as may be necessary in order
to effectuate the purposes of this Agreement.
9
SECTION 2.04 Non-Petition. Each of the parties hereto hereby agrees
that it will not institute against, or join any other person in instituting
against, the Class A Purchaser any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any Federal or
state bankruptcy or similar law, for one year and a day after the latest
maturing note issued by the Class A Purchaser is paid in full. The provisions of
this Section 2.04 shall survive the termination of this Agreement.
SECTION 2.05 Limited Recourse. Notwithstanding anything to the contrary
contained in this Agreement, the obligations of the Class A Purchaser under this
Agreement are solely the corporate obligations of the Class A Purchaser and
shall be payable by the Class A Purchaser solely as provided in this Section
2.05. Each of the parties hereto agrees that the Class A Purchaser shall only be
required to pay (a) any fees or liabilities that it may incur hereunder only to
the extent the Class A Purchaser has Excess Funds (as defined below) and (b) any
expenses, indemnities or other liabilities that it may incur hereunder only to
the extent the Class A Purchaser has Excess Funds. In addition, no amount owing
by the Class A Purchaser hereunder in excess of the liabilities that the Class A
Purchaser is required to pay in accordance with the preceding sentence shall
constitute a claim (as defined in Section 101 to Title 11 of the United States
Code) against the Class A Purchaser. No recourse shall be had for the payment of
any amount owing hereunder or for the payment of any fee hereunder or any other
obligation of, or claim against, the Class A Purchaser arising out of or based
upon this Agreement, against any stockholder, employee, officer, director,
incorporator or manager of the Class A Purchaser or affiliate thereof except as
otherwise provided in this Section; provided, however, that the foregoing shall
not relieve any such person or entity of any liability they might otherwise have
as a result of fraudulent actions or omissions taken by them. Any and all claims
against the Class A Purchaser shall be subordinate to the claims of the holders
of the notes issued by the Class A Purchaser. The obligations of the parties
hereto under this Section shall survive the termination of this Agreement. For
purposes of this Section 2.05, "Excess Funds" shall mean, as of any date of
determination, all funds not required, after giving effect to all amounts on
deposit in the commercial paper account of the Class A Purchaser or the issuer
account of the Class A Purchaser or expected to be on deposit in the commercial
paper account of the Class A Purchaser, to pay or provide for the payment of any
outstanding notes issued by the Class A Purchaser when due.
SECTION 2.06 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 2.07 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
SECTION 2.08 Notwithstanding anything contained herein to the contrary,
it is expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as Pass
10
Through Trustee, Paying Agent and Subordination Agent, in the exercise of the
powers and authority conferred and vested in it under the Operative Agreements,
(b) each of the representations, undertakings and agreements herein made on the
part of the Pass Through Trustee, Paying Agent and Subordination Agent is made
and intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose for binding
only the Pass Through Trusts and (c) under no circumstances shall Wilmington
Trust Company be personally liable for the payment of any indebtedness or
expenses of the Pass Through Trustee, Paying Agent and Subordination Agent or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Pass Through Trustee, Paying Agent and
Subordination Agent under this Agreement or the other related documents.
11
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:
WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely as
Pass Through Trustee
By ___________________________________________
Name:
Title:
Address: ▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely as
Subordination Agent
By _________________________________________
Name:
Title:
Address: ▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By __________________________________________
Name:
Title:
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WILMINGTON TRUST COMPANY,
not in its individual capacity, but
solely as Paying Agent
By ____________________________________________
Name:
Title:
Address: ▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
AIG MATCHED FUNDING CORP.,
as Class A Liquidity Provider and
Class B Liquidity Provider
By _____________________________________________
Name:
Title:
Address: prior to April 7, 2002:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
on or after April 7, 2002
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
NYALA FUNDING LLC
By ______________________________________________
Name:
Title:
Address: c/o Global Securitization Services, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PK AIRFINANCE US, INC.
By ______________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
EXHIBIT A
---------
SCHEDULE VI to
Note Purchase Agreement
-----------------------
MANDATORY ECONOMIC TERMS
Equipment Notes
---------------
Obligor: American Trans Air, Inc. or an Owner Trust
Maximum Principal Amount:
The aggregate original principal amount of all Equipment Notes for all Aircraft
shall not exceed the aggregate face amount of all Certificates issued on March
28, 2002 (the "Initial Issuance Date") and the Delayed Funding 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 Initial Issuance Date and the Delayed Funding Date.
Initial loan to aircraft value (with the value of any Aircraft equal to the
value for such Aircraft set forth in the Private Placement Memorandum in
"Appendix IV - Secured Promissory Notes and the Aircraft" under the column
"Appraised Base Value"):
Series A: not in excess of 51%
Series B: not in excess of 66%
The loan to aircraft value for each series of Equipment Notes issued in respect
of each Aircraft (computed (i) after aggregating the principal amount of all
series of Equipment Notes that rank senior to the series of Equipment Notes for
which loan to aircraft value is being calculated and (ii) as of the date of the
issuance thereof on the basis of the Assumed Appraised Value of such Aircraft
and the Depreciation Assumption (as defined in the Private Placement Memorandum
in the Glossary) must not exceed as of any Regular Distribution Date thereafter
(assuming no default in the payment of the Equipment Notes) the following
amounts:
Series A: not in excess of 51%
Series B: not in excess of 66%
Initial average life (in years)
Series A: not extend beyond 8 years from the Initial Issuance Date
Series B: not extend beyond 5 years from the Initial Issuance Date
Average life (in years)
As of the Delivery Period Termination Date (or if earlier, the date of
the occurrence of a Triggering Event), the average life of the Class A
Certificates and the Class B Certificates shall not exceed,
respectively, 7.14 to 7.34 years from the Initial Issuance Date,
subject to final reoptimization, and 4 years from the Initial Issuance
Date (computed without regard to the acceleration of any Equipment
Notes and after giving effect to any special distribution on the
Certificates thereafter required in respect of unused Deposits).
Amortization Schedule
The amortization schedule for each Series of Equipment Notes, assuming
the maximum amount thereof in respect of all of the Aircraft are
purchased by the Pass Through Trusts and all Aircraft are delivered as
currently scheduled shall be as set forth in Schedule VII of the Note
Purchase Agreement.
Final Maturity Date
Series A: November 20, 2014
Series B: August 20, 2009
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears)
Series A: 8.328%
Series B: 10.699%
Payment Dates: February 20, May 20, August 20 and November 20
Make-Whole Premiums: As provided in Section 1.01 of the forms of Trust
Indenture marked as Exhibit A-3 and C-2 of the Note
Purchase Agreement (the "Trust Indenture Form")
Redemption and Purchase: As provided in Article II of the Trust Indenture Form
Lease
-----
Term: The Base Lease Term shall expire by its terms on or
after final maturity date of the related Series A
Equipment Notes
Lease Payment Dates: February 20, May 20, August 20 and November 20
Minimum Rent: Basic Rent due and payable on each Payment Date
shall be at least sufficient to pay in full, as of
such Payment Date (assuming timely payment of the
related Equipment Notes prior to such Date), the
aggregate principal amount of scheduled installments
due on the related Equipment Notes outstanding on
such Payment Date together with accrued and unpaid
interest thereon
Supplemental Rent: Sufficient to cover the sums described in clauses
(1) through (6) of such term as defined in Section 1
of the forms of Leases (the "Lease Form") marked as
Exhibits A-2-1 and A-2-2 of the Note Purchase
Agreement
Stipulated Loss Value: At all times equal to or greater than the then
outstanding principal amount of the related
Equipment Notes plus, for any date other than a
Lease Payment Date, accrued interest thereon
EBO Price: Equal to or greater than the then-current Stipulated
Loss Value
Termination Value: At all times equal to or greater than the then
outstanding principal amount of the related
Equipment Notes plus, for any date other than a
Lease Payment Date, accrued interest thereon
All-risk hull insurance: Not less than Stipulated Loss Value, subject to
Lessee's right to self-insure on terms no more
favorable to Lessee in any material respect than
those set forth in Section 11 of the Lease Form.
Minimum Liability
Insurance Amount: As set forth in Schedule I of the Lease Form
Past Due Rate: As set forth in Schedule 1 of the Lease Form
Participation Agreement Loan Trustee, Subordination Agent, Liquidity
Providers, Pass Through Trustees, Escrow Agents and Note Holders indemnified
against Expenses and Taxes to the extent set forth in Section 9 of the form of
the Participation Agreement (the "Leased Aircraft Participation Form") marked
as Exhibit A-1 to the Note Purchase Agreement and Section 7 of the form of the
Participation Agreement (the "Owned Aircraft Participation Form") marked as
Exhibit C-1 of the Note Purchase Agreement.
EXHIBIT B
---------
SCHEDULE VII to
Note Purchase Agreement
-----------------------
AGGREGATE AMORTIZATION SCHEDULE
CLASS A CLASS A CLASS B CLASS B
SECURED TRUST SECURED TRUST
PROMISSORY NOTES EXPECTED PROMISSORY NOTES EXPECTED
SCHEDULED PAYMENTS POOL SCHEDULED PAYMENTS POOL
DATES OF PRINCIPAL FACTOR OF PRINCIPAL FACTOR
----------------------------------------------------------------------------------------------------------------------
20-FEB-03 $1,011,441.35 0.9950325 $512,362.56 0.9911715
20-MAY-03 1,112,539.67 0.9895685 255,958.51 0.9867611
20-AUG-03 232,918.44 0.9884246 3,341,893.50 0.9291770
20-NOV-03 2,169,776.87 0.9777681 1,499,271.74 0.9033430
20-FEB-04 6,190,495.66 0.9473647 12,355,547.31 0.6904448
20-FEB-05 6,190,686.00 0.9169604 14,443,948.29 0.4415614
20-FEB-06 8,493,573.59 0.8752459 14,337,256.17 0.1945164
20-FEB-07 16,904,834.73 0.7922212 8,191,327.43 0.0533718
20-FEB-08 24,347,214.91 0.6726446 3,097,434.49 0.0000000
20-FEB-09 29,865,568.59 0.5259658 0.00 0.0000000
20-MAY-09 11,413.96 0.5259098 0.00 0.0000000
20-AUG-09 11,651.60 0.5258525 0.00 0.0000000
20-NOV-09 11,894.18 0.5257941 0.00 0.0000000
20-FEB-10 31,396,990.14 0.3715940 0.00 0.0000000
20-MAY-10 362,862.97 0.3698119 0.00 0.0000000
20-AUG-10 370,417.79 0.3679927 0.00 0.0000000
20-NOV-10 378,129.88 0.3661355 0.00 0.0000000
20-FEB-11 32,073,815.04 0.2086114 0.00 0.0000000
20-MAY-11 1,053,779.38 0.2034359 0.00 0.0000000
20-AUG-11 1,075,719.07 0.1981527 0.00 0.0000000
20-NOV-11 1,098,115.53 0.1927596 0.00 0.0000000
20-FEB-12 27,106,005.33 0.0596338 0.00 0.0000000
20-MAY-12 805,325.33 0.0556786 0.00 0.0000000
20-AUG-12 822,092.20 0.0516411 0.00 0.0000000
20-NOV-12 839,208.17 0.0475194 0.00 0.0000000
20-FEB-13 9,675,529.62 0.0000000 0.00 0.0000000