EXECUTION COPY
--------------------------------------------------------------------------------
ESCROW AND PAYING AGENT AGREEMENT
(Class B)
Dated as of March 28, 2002
among
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
PK AIRFINANCE US, INC.
as Purchaser
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
American Trans Air 2002-1B Pass Through Trust
as Pass Through Trustee
and
WILMINGTON TRUST COMPANY,
as Paying Agent
--------------------------------------------------------------------------------
ESCROW AND PAYING AGENT AGREEMENT (Class B) dated as of March
28, 2002 (as amended, modified or supplemented from time to time, this
"Agreement") among XXXXX 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"); PK AIRFINANCE US, INC. (the
"Purchaser", and together with its transferees and assigns as registered owners
of the Certificates referred to below, the "Investors"); 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 the date hereof (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 2002-1B Pass Through Trust (the "Pass
Through Trust") pursuant to which the American Trans Air Pass Through Trust,
Series 2002-1B Certificates (the "Certificates") are being issued;
WHEREAS, ATA, the Pass Through Trustee and certain other
persons concurrently herewith are entering into the Note Purchase Agreement,
dated as of the date hereof (as amended, modified or supplemented from time to
time in accordance with the terms thereof, 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 (as defined in the Note Purchase Agreement) by ATA,
as lessee or as owner, utilizing a portion of the proceeds from the sale of the
Certificates (the "Net Proceeds");
WHEREAS, the Purchaser 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 (i) the
Net Proceeds from the sale of the Certificates on the date hereof be deposited
on behalf of the Escrow Agent with IntesaBci S.p.A., acting through its New York
Branch, 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 (as defined in the Deposit Agreement) are
transferred to such Replacement Depositary) under the Deposit Agreement (Class
B), 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 "Initial Deposit
Agreement") and (ii) the Net Proceeds from the sale of the Certificates on the
Delayed Funding Date (as defined in the
-2-
Delayed Funding Implementation Agreement) be deposited on behalf of the Escrow
Agent with the Depositary under the Delayed Deposit Agreement (Class B) 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 thereto), the "Delayed Deposit Agreement"). As used
herein, the term "Deposit Agreement" shall mean, prior to the Delayed Funding
Date, the Initial Deposit Agreement, and on and after the Delayed Funding Date,
the Initial Deposit Agreement (to the extent of any payment to be made by the
Depositary thereunder on or after the Delayed Funding Date) and the Delayed
Deposit Agreement. The terms "Initial Deposit Agreement" and "Delayed Deposit
Agreement" shall 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, ATA, Amtran, the Pass Through Trustee, the Escrow
Agent, the Paying Agent and certain other parties concurrently herewith are
entering into a Delayed Funding Implementation Agreement dated as of the date
hereof (as amended, supplemented or otherwise modified from time to time, the
"Delayed Funding Implementation Agreement") pursuant to which the parties
thereto agree to supplement and modify the Operative Agreements, as defined
therein;
WHEREAS, 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 Purchaser
hereby irrevocably appoints, authorizes and directs 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
trust 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 trust 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
-3-
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 Purchaser hereby
irrevocably directs the establishment of an escrow and accordingly instructs the
Escrow Agent, and the Escrow Agent agrees, (a) to enter into the Initial Deposit
Agreement and the Delayed Deposit Agreement and, if requested by ATA pursuant to
Section 4(a)(vii) of the Note Purchase Agreement, to enter 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 at any time and from time to time prior to the Delivery Period
Termination Date of a certificate substantially in the form of Exhibit C hereto
(a "Prepayment Withdrawal Certificate") executed by the Pass Through Trustee,
together with an attached Notice of Prepayment Withdrawal in substantially the
form of Exhibit D to the Deposit Agreement duly completed by the Pass Through
Trustee (the "Applicable Notice of Prepayment Withdrawal" and the withdrawal to
which it relates, a "Prepayment Withdrawal"), immediately to execute the
Applicable Notice of Prepayment 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
Prepayment Withdrawal, and (e) 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 (i) 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 (ii) 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 (f) if there
are any undrawn Deposits on the "Termination Date", which shall mean the earlier
of (i) September 29, 2002 and (ii) the day on which the Escrow Agent receives
-4-
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 15th 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 September 29, 2002, and there
are unwithdrawn Deposits on such date, the Final Withdrawal Date shall be deemed
to be October 14, 2002.
Section 1.03. Initial Escrow Amount; Issuance of Escrow
Receipts. The Escrow Agent hereby directs the Purchaser to, and the Purchaser
hereby acknowledges that on the date hereof it 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 $24,391,148.66 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 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
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
or the Escrow Agent for any such payment or distribution, 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
-5-
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 protected 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.
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
-6-
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 Xxxxx'x Investors Service, 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. The Paying Agent is authorized to enter into the Delayed
Funding Implementation Agreement. 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 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 hereunder 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 than 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 Paving 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
-7-
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") or the Purchaser, such distribution shall be made by wire
transfer in immediately available funds to the account designated by DTC or the
Purchaser, as the case may be.
(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 or the Purchaser, such distribution shall be made
by wire transfer in immediately available funds to the account designated by DTC
or the Purchaser, as the case may be.
(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 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) Upon the confirmation by the Paying Agent of receipt in
the Paying Agent Account from the Depositary of any amount in respect of a
Prepayment Withdrawal, the Paying Agent shall forthwith distribute the entire
amount of such Prepayment Withdrawal upon not less than 15 days prior notice to
the Receiptholders. There shall be distributed to each Receiptholder of record
on the 15th day (whether or not a Business Day) preceding such date of
distribution 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 Prepayment Withdrawal, except that, with
respect to the Escrow Receipts registered on such
-8-
record date in the name of a nominee of DTC, such distribution shall be made by
wire transfer in immediately available funds to the account designated by DTC.
(e) The Paying Agent shall include with any check mailed
pursuant to this Section or any payment to the Purchaser, 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 any
Prepayment Withdrawal or 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 the appropriate taxing authority and make such
returns, filings and other reports in connection therewith as are required by
the Code and as promptly as possible after the payment thereof to 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. 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 any
successor form), 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 an
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
-9-
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 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, 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. 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 such 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 Prepayment Withdrawal and Final
Withdrawal. Promptly after receipt by the Paying Agent of notice that the Escrow
Agent has requested a Prepayment Withdrawal or a Final Withdrawal or that
Prepayment Withdrawal or 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 15 days prior to the distribution date of such
prepayment Withdrawal (the "Prepayment Withdrawal Date") or the Final Withdrawal
Date. Such notice shall set forth:
(i) the Prepayment Withdrawal Date or the Final Withdrawal
Date and the date for determining Receiptholders of record who shall be
entitled to receive distributions in respect of the Prepayment
Withdrawal or the Final Withdrawal,
(ii) the amount of the payment in respect of the Prepayment
Withdrawal or 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 Prepayment Withdrawal Date or the Final
Withdrawal Date is the same date as a Regular Distribution Date, the
total amount to be received on such date for
-10-
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 certain 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 such 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 case of a payment of accrued interest on the Deposits (as
defined in the Deposit Agreement), any Prepayment Withdrawal or any Final
Withdrawal, directly to the Paying Agent Account, (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
-11-
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;
(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;
-12-
(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 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.
-13-
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 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.
Notwithstanding any provision of this Agreement, upon and
simultaneously with the issuance of the Additional Certificates (as defined in
the Delayed Funding Implementation Agreement), this Agreement shall be forthwith
amended as provided in the Delayed Funding Implementation Agreement, without any
need for further action on the part of any party hereto and without any consent
of any of the Receiptholders.
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, Xxxxx Fargo Bank Northwest, National Association,
00 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx, Xxxx Xxxx Xxxx, XX 00000, Attention: Corporate
Trust Services (Telecopier: (000) 000-0000), (c) in the case of the Pass Through
Trustee, Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: Corporate Trust Administration
(Telecopier: (000) 000-0000) or (d) in the case of the Paying Agent, Wilmington
-14-
Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000, Attention: Corporate Trust Administration (Telecopier: (000) 000-0000),
in each case with a copy to American Trans Air, Inc., 0000 Xxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, Chief
Financial Officer (Telecopier: (000) 000-0000) (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 1.07
hereof or (in the case of the Paying Agent) to a successor paying agent under
Section 2.05 hereof, 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.
SECTION 11. Non-Petition. Each of the Escrow Agent, the Pass
Through Trustee and the Paying Agent hereby agrees that it will not institute
against, or join any other person in instituting against, the 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 Purchaser is
paid in full. The provisions of this Section 11 shall survive the termination of
this Agreement.
SECTION 12. Limited Recourse. Notwithstanding anything to the
contrary contained in this Agreement, the obligations of the Purchaser under
this Agreement are solely the corporate obligations of the Purchaser and shall
be payable by the Purchaser solely as provided in this Section 12. Each of the
Escrow Agent, the Pass Through Trustee and the Paying Agent agrees that the
Purchaser shall only be required to pay (a) any fees or liabilities that it may
incur hereunder only to the extent the 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 Purchaser has Excess Funds. In addition, no
amount owing by the Purchaser hereunder in excess of the liabilities that the
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 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 Purchaser arising out of or based upon this
Agreement, against any stockholder, employee, officer, director, incorporator or
manager of the Purchaser or affiliate thereof except as otherwise provided in
this Section 12; 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
Purchaser shall be subordinate to the claims of the holders of the notes issued
by the Purchaser. The obligations of the Escrow Agent, the Pass Through Trustee
and the Paying Agent under this Section 12 shall survive the termination of this
Agreement. For purposes of this Section 12, "Excess Funds" shall mean, as of any
date of
-15-
determination, all funds not required, after giving effect to all
amounts on deposit in the commercial paper account of the Purchaser and the
issuer account of the Purchaser or expected to be on deposit in the commercial
paper account of the Purchaser, to pay or provide for the payment of any
outstanding notes issued by the Purchaser when due.
SECTION 13. Entire Agreement. This Agreement sets forth all of
the promises, covenants, agreements, conditions and understandings among the
Escrow Agent, the Paying Agent, the Investors 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 14. Survival. This Agreement shall remain in full
force and effect through March 17, 2003.
SECTION 15. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 16. 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 17. Counterparts. This Agreement may be executed in
one or more counterparts, all of which taken together shall constitute one
instrument.
SECTION 18. Notwithstanding anything contained herein to the
contrary, it is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by Wilmington Trust Company in
connection with its role as Pass Through Trustee, not individually or personally
but solely as Pass Through Trustee in the exercise of the powers and authority
conferred and vested in it under the Pass Through Trust Agreement, (b) each of
the representations, undertakings and agreements herein made on the part of the
Pass Through Trustee is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company but is made and intended
for the purpose for binding only the Pass Through Trustee and (c) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Pass Through Trustee or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Pass Through Trustee under this Agreement or
the other related documents.
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the
Purchaser and the Pass Through Trustee have caused this Escrow and Paying Agent
Agreement (Class B) to be duly executed as of the day and year first above
written.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
---------------------------
Name:
Title:
PK AIRFINANCE US, INC.,
as Purchaser
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 2002-1B Pass Through
Trust
By
----------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Paying Agent
By
----------------------------
Name:
Title:
EXHIBIT A
AMERICAN TRANS AIR 2002-1B 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 B) dated as of March 28, 2002 (as amended, modified or
supplemented from time to time, the "Escrow and Paying Agent Agreement") among
Xxxxx Fargo Bank Northwest, National Association, as Escrow Agent (in such
capacity, together with its successors in such capacity, the "Escrow Agent"), PK
AirFinance US, Inc, 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 for any such payment or
distribution, 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
-2-
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.
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow
Receipt to be duly executed.
Dated:
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION
as Escrow Agent
By
-----------------------
Name:
Title:
EXHIBIT B
WITHDRAWAL CERTIFICATE
(Class B)
Xxxxx Fargo Bank Northwest, National Association,
as Escrow Agent
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement
(Class B), dated as of March 28, 2002 (as amended, modified or supplemented from
time to time in accordance with the terms thereof, 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 (212)
793-1246, Attention: Global Agency & Trust Services.
Very truly yours,
WILMINGTON TRUST COMPANY
not in its individual capacity but solely as
Pass Through Trustee
By:
--------------------------------------------
Name:
Title:
Dated: _________, ____
-2-
EXHIBIT C
PREPAYMENT WITHDRAWAL CERTIFICATE
(Class B)
Xxxxx Fargo Bank Northwest, National Association,
as Escrow Agent
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement
(Class B), dated as of March 28, 2002 (as amended, modified or supplemented from
time to time in accordance with the terms thereof, the "Agreement"). The
undersigned has been notified by American Trans Air, Inc. (the "Company") that
(i) as a result of a downgrading of the Company's corporate credit ratings,
General Electric Capital Corporation has elected to exercise its contractual
rights not to act as an Owner Participant with respect to a GE Aircraft (as
defined in the Note Purchase Agreement), (ii) pursuant to the separate financing
agreement between the Company and General Electric Capital Corporation, the
Company will not own or lease such GE Aircraft and (iii) the Company will not
identify and substitute a Substitute Aircraft (as defined in the Note Purchase
Agreement) for such GE Aircraft. Pursuant to Section 1.02(d) of the Agreement,
please execute the attached Notice of Prepayment Withdrawal and immediately
transmit by facsimile to the Depositary, at (000) 000-0000, Attention: Global
Agency and Trust Services.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Pass Through Trustee
By __________________________
Name
Dated: _________, ____
