Exhibit 10.23
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"), dated as
of January 30, 2005, is by and among ATA AIRLINES INC., an Indiana corporation
(the "Borrower"), ATA HOLDINGS CORP. (the "Parent"), each of the Subsidiaries of
the Parent identified on the signature pages hereto (the "Subsidiaries"), and
SOUTHWEST AIRLINES CO., a Texas corporation (the "Lender").
R E C I T A L S
A. The Lender and the Borrower, the Parent and the Subsidiaries entered
into that certain Secured Debtor-in-Possession Credit and Security Agreement
(this "Credit Agreement") dated as of December 22, 2004, pursuant and subject to
the terms and conditions of which, among other things, the Lender agreed to make
loans and other financial accommodations to the Loan Parties (as defined in the
Credit Agreement).
B. The Borrower has requested that the Lender agree to amend certain
provisions of the Credit Agreement on terms and conditions set forth herein.
C. Subject to the terms and conditions of this First Amendment, the Lender
is willing to agree to the request of the Borrower.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
and subject to the terms and conditions hereof, the parties hereto hereby agree
as follows:
1. Incorporation of Recitals. The Recitals set forth above are incorporated
herein, are acknowledged by the Borrower to be true and correct and are made a
part hereof.
2. Definitions. All capitalized terms used but not elsewhere defined herein
shall have the respective meanings ascribed to such terms in the Credit
Agreement.
3. Amendments to Credit Agreement. The Credit Agreement is amended as set
forth below:
(a) Section 7.11(a) - Minimum Consolidated EBITDARR. The Credit
Agreement is amended by deleting the current version of Section
7.11(a) in its entirety and substituting the following in lieu
thereof:
"(a) Minimum Consolidated EBITDARR. (i) Permit Consolidated
EBITDARR for each calendar month beginning on February 1, 2005 and
ending with September 30, 2005 to be less than 75% of the projected
EBITDARR for each such month as set forth the in the Borrower's
Projections; nor (ii) permit cumulative Consolidated EBITDARR for each
month beginning on February 1, 2005 and ending on September 30, 2005
to be less than 80% of the cumulative Consolidated EBITDARR for each
such calendar month as set forth in the Borrower's Projections
(provided that the first such cumulative EBITDARR of the Borrower, the
Parent and its Subsidiaries shall be tested for the period beginning
on February 1, 2005 and ending on March 31, 2005)."
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(b) Section 7.11(b) - Minimum Adjusted EBITDARR. The Credit
Agreement is amended by deleting the current version of Section
7.11(b) in its entirety and substituting the following in lieu
thereof:
"(b) Minimum Adjusted EBITDARR. (i) Permit Adjusted EBITDARR for each
month beginning on February 1, 2005 and ending with September 30, 2005 to
be less than 75% of the projected Adjusted EBITDARR for each such month as
set forth the in the Borrower's Projections; nor (ii) permit cumulative
Adjusted EBITDARR for each month beginning on February 1, 2005 and ending
on September 30, 2005 to be less than 80% of the cumulative Adjusted
EBITDARR for each such month as set forth in the Borrower's Projections
(provided that the first such cumulative Adjusted EBITDARR of the Borrower,
the Parent and its Subsidiaries shall be tested for the period beginning on
February 1, 2005 and ending on March 31, 2005)."
4. Conditions to Effectiveness. The effectiveness of this First Amendment
shall be subject to the satisfaction of all of the following conditions in a
manner, form and substance satisfactory to the Lender:
(a) Delivery of Documents. The following shall have been delivered to
the Lender, each duly authorized and executed and each in form and
substance satisfactory to the Lender:
(1) this First Amendment; and
(2) such other instruments, documents, certificates, consents, waivers
and opinions as the Lender may reasonably request.
(b) No Default. No Event of Default or event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default,
shall exist as of the effective date of this First Amendment, after giving
effect to this First Amendment.
(c) Approval of the ATSB and the Creditors Committee. The Lender shall
have received satisfactory evidence that the ATSB and the Creditors
Committee shall have consented to this First Amendment in accordance with
the provisions of Section 11.01 of the Credit Agreement.
Upon the satisfaction of all of the conditions set forth in this Paragraph
4 this Amendment shall become effective as of January 30, 2005 (the "Effective
Date.")
5. References. From and after the Effective Date, all terms used in the
Credit Documents which are defined in the Credit Agreement shall be deemed to
refer to such terms as amended by this First Amendment. This First Amendment
shall constitute a "Loan Document."
6. Representations and Warranties. Each Loan Party hereby confirms to the
Lender that the representations and warranties set forth in the Loan Documents
are true and correct in all respects as of the date hereof, and shall be deemed
to be remade as of the date hereof. Each Loan Party represents and warrants to
the Lender that (i) such Loan Party has full power and authority to execute and
deliver this First Amendment and to perform its obligations hereunder, (ii) upon
the execution and delivery hereof, this First Amendment will be valid, binding
and enforceable upon such Loan Party in accordance with its terms, (iii) the
execution and delivery of this First Amendment does not and will not contravene,
conflict with, violate or constitute a default under (A) its organizational
documents or (B) any applicable law, rule, regulation, judgment, decree or order
or any agreement, indenture or instrument to which such Loan Party is a party or
is bound or which is binding upon or applicable to all or any portion of such
Loan Party's properties or assets and (iv) as of the date hereof no Event of
Default exists.
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7. No Further Amendments; Ratification of Liability. Except as amended
hereby, the Credit Agreement and each of the other Loan Documents shall remain
in full force and effect in accordance with its respective terms. Each Loan
Party hereby ratifies and confirms its liabilities, obligations and agreements
under the Credit Agreement and the other Loan Documents, all as amended by this
First Amendment, and the Liens created thereby, and acknowledges that (i) it has
no defenses, claims or set-offs to the enforcement by the Lender of such
liabilities, obligations and agreements, (ii) the Lender has fully performed all
obligations to the Loan Parties which it may have had, or has, on and as of the
date hereof and (iii) other than as specifically set forth herein, the Lender
does not waive, diminish or limit any term or condition contained in the Credit
Agreement or the other Loan Documents. The agreement of the Lender to the terms
of this First Amendment or any other amendment of the Credit Agreement shall not
be deemed to establish or create a custom or course of dealing among the Lender
and the Loan Parties.
8. Incorporation by Reference. The following sections of the Credit
Agreement are incorporated by reference in this First Amendment: 1.02 (Other
Interpretive Provisions); 11.02(b) (Effectiveness of Facsimile Documents and
Signatures); 11.11 (Counterparts); 11.12 (Integration); 11.14 (Severability);
and 11.15 (Governing Law).
9. Further Assurances. Each Loan Party will at any time and from time to
time do, execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered, all such further acts, documents and instruments as
reasonably may be required by the Lender in order to effectuate fully the intent
of this First Amendment.
[signatures on following pages]
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IN WITNESS WHEREOF, this First Amendment has been executed and delivered by
each of the parties hereto by a duly authorized officer of each such party on
the date first set forth above.
LENDER:
SOUTHWEST AIRLINES CO., a Texas corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: SVP Finance and CFO
BORROWER:
ATA AIRLINES, INC., an Indiana corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and CFO
GUARANTORS:
ATA HOLDINGS CORP., an Indiana corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
CFO
AMBASSADAIR TRAVEL CLUB, INC., an Indiana
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and CFO
ATA LEISURE CORP., an Indiana corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and CFO
AMBER TRAVEL, INC., an Indiana corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and CFO
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AMERICAN TRANS AIR EXECUJET, INC., an
Indiana corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
CFO
ATA CARGO, INC., a California corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
CFO
CHICAGO EXPRESS AIRLINES, INC., a Georgia
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and CFO
signature page to First Amendment to Credit
Agreement]
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