Exhibit 10.4
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "THIRD Amendment"),
dated as of March 31,, 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
dated as of December 22, 2004, as amended by that certain First Amendment to
Credit Agreement dated as of January 30, 2005 and that certain Second Amendment
to Credit Agreement dated as of February 25, 2005 (the "Credit Agreement"),
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 Third 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
April 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
April 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 April 1, 2005 and ending on May 31,
2005)."
(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 April 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 April 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
April 1, 2005 and ending on May 31, 2005)."
4. Conditions to Effectiveness. The effectiveness of this Third
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 Third 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 Third
Amendment, after giving effect to this Third 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 Third 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 March 31, 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 Third Amendment.
This Third 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 Third Amendment and to perform its obligations
hereunder, (ii) upon the execution and delivery hereof, this Third Amendment
will be valid, binding and enforceable upon such Loan Party in accordance with
its terms, (iii) the execution and delivery of this Third Amendment does not and
will not contravene, conflict with, violate or constitute a default under (A)
its organizational documents or (B) any applicable law,
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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.
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
Third 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 Third 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 Third 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 Third Amendment.
[signatures on following pages]
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IN WITNESS WHEREOF, this Third 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/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Sr. Vice President - Finance and CFO
BORROWER:
ATA AIRLINES, INC., an Indiana corporation
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President & Chief
Restructuring Officer
GUARANTORS:
ATA HOLDINGS CORP., an Indiana corporation
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President & Chief
Restructuring Officer
AMBASSADAIR TRAVEL CLUB, INC., an Indiana
corporation
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President & Chief
Restructuring Officer
ATA LEISURE CORP., an Indiana corporation
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President & Chief
Restructuring Officer
AMBER TRAVEL, INC., an Indiana corporation
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President & Chief
Restructuring Officer
AMERICAN TRANS AIR EXECUJET, INC., an
Indiana corporation
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President & Chief
Restructuring Officer
ATA CARGO, INC., a California corporation
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President & Chief
Restructuring Officer
CHICAGO EXPRESS AIRLINES, INC., a Georgia
corporation
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President
[signature page to Third Amendment to Credit Agreement]
