EXHIBIT 4.10
_______________________________________________________________________________
REVOLVING CREDIT AGREEMENT
(2000-1C)
Dated as of February 15, 2000
between
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as agent and trustee for the
American Trans Air 2000-1C Pass Through Trust
as Borrower
and
CITIBANK, N.A.
as Liquidity Provider
Relating to
American Trans Air 2000-1C Pass Through Trust,
Series 2000-1C
9.644% American Trans Air Pass Through Certificates,
Series 2000-1C-O
_______________________________________________________________________________
i
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS.......................................................1
Section 1.1 Certain Defined Terms.................................1
ARTICLE 2 AMOUNT AND TERMS OF THE COMMITMENT................................7
Section 2.1. The Advances..............................................7
Section 2.2. Making the Advances.......................................7
Section 2.3. Fees......................................................9
Section 2.4. Adjustments or Termination of the Maximum Commitment......9
Section 2.5. Repayments of Interest Advances or the Final Advance......9
Section 2.6. Repayments of Provider Advances..........................10
Section 2.7. Payments to the Liquidity Provider Under the
Intercreditor Agreement................................10
Section 2.8. Book Entries.............................................11
Section 2.9. Payments from Available Funds Only.......................11
Section 2.10. Extension of the Expiry Date; Non-Extension Advance.....11
ARTICLE 3 OBLIGATIONS OF THE BORROWER......................................12
Section 3.1. Increased Costs..........................................12
Section 3.2. Capital Adequacy.........................................13
Section 3.3. Payments Free of Deductions..............................13
Section 3.4. Payments.................................................14
Section 3.5. Computations.............................................14
Section 3.6. Payment on Non-Business Days.............................14
Section 3.7. Interest.................................................14
Section 3.8. Replacement of Borrower..................................16
Section 3.9. Funding Loss Indemnification.............................16
Section 3.10. Illegality..............................................16
ARTICLE 4 CONDITIONS PRECEDENT.............................................16
Section 4.1. Conditions Precedent to Effectiveness of Section 2.1.....16
Section 4.2. Conditions Precedent to Borrowing........................18
ARTICLE 5 COVENANTS........................................................18
Section 5.1. Affirmative Covenants of the Borrower....................18
ARTICLE 6 LIQUIDITY EVENTS OF DEFAULT......................................19
ii
ARTICLE 7 MISCELLANEOUS....................................................20
Section 7.1. Amendments, Etc..........................................20
Section 7.2. Notices, Etc.............................................20
Section 7.3 No Waiver; Remedies......................................21
Section 7.4. Further Assurances.......................................21
Section 7.5. Indemnification; Survival of Certain Provisions..........21
Section 7.6. Liability of the Liquidity Provider......................21
Section 7.7. Costs, Expenses and Taxes................................22
Section 7.8. Binding Effect; Participations...........................22
Section 7.9. Severability.............................................24
Section 7.10. GOVERNING LAW............................................24
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity......................................24
Section 7.12. Execution in Counterparts................................25
Section 7.13. Entirety.................................................25
Section 7.14. Headings.................................................25
Section 7.15. Transfer.................................................25
Section 7.16. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES.........25
ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
REVOLVING CREDIT AGREEMENT
(2000-1C)
This REVOLVING CREDIT AGREEMENT dated as of February 15, 2000,
between WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its
individual capacity but solely as Subordination Agent under the Intercreditor
Agreement (each as defined below), as agent and trustee for the Class C Trust
(as defined below) (the "Borrower"), and CITIBANK, N.A., a national banking
association ("Citibank" or the "Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class C Trust Agreement (such term and all
other capitalized terms used in these recitals having the meanings set forth
or referred to in Section 1.1), the Class C Trust is issuing the Class C
Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class C Certificates in accordance with their
terms, has requested the Liquidity Provider to enter into this Agreement,
providing in part for the Borrower to request in specified circumstances that
Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Certain Defined Terms. (a) Definitions. As used in this
Agreement and unless otherwise expressly indicated, or unless the context
clearly requires otherwise, the following capitalized terms shall have the
following respective meanings for all purposes of this Agreement:
"Additional Cost" has the meaning assigned to such term in Section
3.1.
"Advance" means an Interest Advance, a Final Advance, a Provider
Advance or an Applied Provider Advance, as the case may be.
"Applicable Liquidity Rate" has the meaning assigned to such term in
Section 3.7(g).
"Applicable Margin" means (x) with respect to any Unpaid Advance or
Applied Provider Advance, 2.25%, or (y) with respect to any Unapplied Provider
Advance, 0.55%.
"Applied Downgrade Advance" has the meaning assigned to such term in
Section 2.6(a).
"Applied Non-Extension Advance" has the meaning assigned to such
term in Section 2.6(a).
"Applied Provider Advance" has the meaning assigned to such term in
Section 2.6(a).
"Assignment and Assumption Agreement" means the Assignment and
Assumption to be entered into between the Class C Trustee and the trustee of
the Successor Trust, substantially in the form of Exhibit D to the Trust
Supplement No. 2000-1C-O, dated as of the date hereof, relating to the Class C
Trust.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to (a) the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York or if such
rate is not so published for any day that is a Business Day, the average of
the quotations for such day for such transactions received by the Liquidity
Provider from three Federal funds brokers of recognized standing selected by
it, plus (b) one-quarter of one percent (1/4 of 1%).
"Base Rate Advance" means an Advance that bears interest at a rate
based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the recital of
parties to this Agreement.
"Borrowing" means the making of Advances requested by delivery of a
Notice of Borrowing.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in
Indianapolis, Indiana, or New York, New York, or, so long as any Class C
Certificate is outstanding, the city and state in which the Class C Trustee,
the Borrower or any Loan Trustee maintains its Corporate Trust Office or
receives or disburses funds, and, if the applicable Business Day relates to
any Advance or other amount bearing interest based on the LIBOR Rate, on which
dealings are carried on in the London interbank market.
"Deposits" has the meaning assigned to such term in the Deposit
Agreement.
"Depositary" means Citibank, N.A.
"Deposit Agreement" means the Deposit Agreement (Class C) dated
February 15, 2000 between First Security Bank, National Association, as Escrow
Agent and Citibank, N.A., as Depositary, pertaining to the Class C
Certificates, as the same may be amended, modified or supplemented from time
to time in accordance with the terms thereof.
"Downgrade Advance" means an Advance made pursuant to Section
2.2(c).
"Effective Date" has the meaning specified in Section 4.1. The
delivery of the certificate of the Liquidity Provider contemplated by Section
4.1(e) shall be conclusive evidence that the Effective Date has occurred.
"Excluded Taxes" means (i) Taxes imposed on the overall net income
of the Liquidity Provider or of its Lending Office, and (ii) Excluded
Withholding Taxes.
"Excluded Withholding Taxes" means (i) withholding Taxes imposed by
the United States except to the extent that such United States withholding
Taxes are imposed as a result of any change in applicable law after the date
hereof (excluding from change in applicable law for this purpose a change in
an applicable treaty or other change in law affecting the applicability of a
treaty), or in the case of a successor Liquidity Provider (including a
transferee of an Advance) or Lending Office, after the date on which such
successor Liquidity Provider obtains its interest or on which the Lending
Office is changed, and (ii) any withholding Taxes imposed by the United States
which are imposed or increased as a result of the Liquidity Provider failing
to deliver to the Borrower any certificate or document (which certificate or
document in the good faith judgment of the Liquidity Provider it is legally
entitled to provide) which is reasonably requested by the Borrower to
establish that payments under this Agreement are exempt from (or entitled to a
reduced rate of) withholding Tax.
"Expenses" means liabilities, obligations, damages, settlements,
penalties, claims, actions, suits, costs, expenses and disbursements
(including, without limitation, reasonable fees and disbursements of legal
counsel and costs of investigation), provided that Expenses shall not include
any Taxes.
"Expiry Date" means February 12, 2001, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"Final Advance" means an Advance made pursuant to Sections 2.2(d)
and 6.1.
"Intercreditor Agreement" means the Intercreditor Agreement dated
the date hereof, among the Trustees, the Liquidity Provider, the liquidity
provider under each Liquidity Facility (other than this Agreement), the Policy
Provider and the Subordination Agent, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
"Interest Advance" means an Advance made pursuant to Section 2.2(a).
"Interest Period" means, with respect to any LIBOR Advance, each of
the following periods:
(i) the period beginning on the third Business Day following either
(x) the Liquidity Provider's receipt of the Notice of Borrowing for such LIBOR
Advance or (y) the withdrawal of funds from the Class C Cash Collateral
Account for the purpose of
paying interest on the Class C Certificates as contemplated by Section 2.6(a)
hereof and, in either case, ending on the next Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the next Regular
Distribution Date.
"Lending Office" means the lending office of the Liquidity Provider
presently located in New York, New York, or such other lending office as the
Liquidity Provider from time to time shall notify the Borrower as its lending
office hereunder; provided that the Liquidity Provider shall not change its
Lending Office to a Lending Office outside the United States of America except
in accordance with Section 3.1, 3.2 or 3.3 hereof.
"LIBOR Advance" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, (i) the
rate per annum appearing on display page 3750 (British Bankers Association -
LIBOR) of the Dow Xxxxx Markets Service (or any successor or substitute
therefor) at approximately 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period, or (ii) if the rate calculated
pursuant to clause (i) above is not available, the average (rounded upwards,
if necessary, to the next higher 1/16 of 1%) of the rates per annum at which
deposits in dollars are offered for the relevant Interest Period by three
banks of recognized standing selected by the Liquidity Provider in the London
interbank market at approximately 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount approximately equal
to the principal amount of the LIBOR Advance to which such Interest Period is
to apply and for a period of time comparable to such Interest Period.
"Liquidity Event of Default" means the occurrence of either (a) the
Acceleration of all of the Equipment Notes or (b) an ATA Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii) each
Affiliate of the Liquidity Provider, (iii) the respective directors, officers,
employees and agents of the Liquidity Provider and its Affiliates, and (iv)
the successors and permitted assigns of the persons described in clauses (i)
to (iii), inclusive.
"Liquidity Provider" has the meaning assigned to such term in the
recital of parties to this Agreement.
"Maximum Available Commitment" shall mean, subject to the proviso
contained in the third sentence of Section 2.2(a), at any time of
determination, (a) the Maximum Commitment at such time less (b) the aggregate
amount of each Interest Advance outstanding at such time; provided that
following a Provider Advance or a Final Advance, the Maximum Available
Commitment shall be zero.
"Maximum Commitment" means, for any day, the lesser of (x)
$5,590,358.40 and (y) the Required Amount on such day.
"Non-Excluded Taxes" has the meaning specified in Section 3.3.
"Non-Extension Advance" means an Advance made pursuant to Section
2.2(b).
"Notice of Borrowing" has the meaning specified in Section 2.2(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.8.
"Offering Memorandum" means the Offering Memorandum dated February
8, 2000 of ATA and Amtran relating to the Certificates, as such Offering
Memorandum may be amended or supplemented.
"Performing Note Deficiency" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"Provider Advance" means a Downgrade Advance or a Non-Extension
Advance.
"Regulatory Change" has the meaning assigned to such term in Section
3.1.
"Replenishment Amount" has the meaning assigned to such term in
Section 2.6(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class C Certificates, that would be payable on the Class
C Certificates on each of the six successive quarterly Regular Distribution
Dates immediately following such day or, if such day is a Regular Distribution
Date, on such day and the succeeding five quarterly Regular Distribution
Dates, in each case calculated on the basis of the Pool Balance of the Class C
Certificates on such day and without regard to expected future payments of
principal on the Class C Certificates.
"Successor Trust" means American Trans Air Pass Through Trust
2000-1C-S.
"Termination Date" means the earliest to occur of the following: (i)
the Expiry Date; (ii) the date on which the Borrower delivers to the Liquidity
Provider a certificate, signed by a Responsible Officer of the Borrower,
certifying that all of the Class C Certificates have been paid in full (or
provision has been made for such payment in accordance with the Intercreditor
Agreement and the Trust Agreements) or are otherwise no longer entitled to the
benefits of this Agreement; (iii) the date on which the Borrower delivers to
the Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that a Replacement Liquidity Facility has been
substituted for this Agreement in full pursuant to Section 3.6(e) of the
Intercreditor Agreement; (iv) the fifth Business Day following the receipt by
the Borrower of a Termination Notice from the Liquidity Provider pursuant to
Section 6.1 hereof; and (v) the date on which no Advance is or may (including
by reason of reinstatement as herein provided) become available for a
Borrowing hereunder.
"Termination Notice" means the Notice of Termination substantially
in the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in Section
7.8(b).
"Unapplied Downgrade Advance" means any Downgrade Advance other than
an Applied Downgrade Advance.
"Unapplied Provider Advance" means any Provider Advance other than
an Applied Provider Advance.
"Unpaid Advance" has the meaning assigned to such term in Section
2.5.
(b) Terms Defined in the Intercreditor Agreement. For all purposes
of this Agreement, the following terms shall have the respective meanings
assigned to such terms in the Intercreditor Agreement:
"Acceleration,", "Affiliate", "Amtran", " ATA", "ATA Bankruptcy
Event", "Certificates", "Class C Cash Collateral Account", "Class C
Certificates", "Class C Trust", "Class C Trust Agreement", "Class C Trustee",
"Class G Certificates", "Closing Date", "Controlling Party", "Corporate Trust
Office", "Distribution Date", "Downgraded Facility", "Equipment Notes", "Fee
Letter", "Final Legal Distribution Date", "Financing Agreement", "Indenture",
"Initial Purchasers", "Investment Earnings", "Liquidity Facility", "Liquidity
Obligations", "Loan Trustee", "Xxxxx'x", "Non-Extended Facility", "Note
Purchase Agreement", "Operative Agreements", "Participation Agreement",
"Performing Equipment Note", "Person", "Policy Drawings", "Policy Provider",
"Policy Provider Election", "Pool Balance", "Purchase Agreement", "Rating
Agency", "Regular Distribution Date", "Replacement Liquidity Facility",
"Responsible Officer", "Scheduled Payment", "Series C Equipment Notes",
"Special Payment", "Standard & Poor's", "Stated Interest Rate", "Subordination
Agent", "Taxes", "Threshold Rating", "Transfer", "Trust Agreements", "Trustee"
and "Written Notice".
(c) Interpretation. Each scheduled payment with respect to the Class
C Certificates shall be deemed to be comprised of interest and principal
components, with the interest component equaling interest accrued at the
Stated Interest Rate for the Class C Certificates from (i) the later of (x)
the date of the issuance thereof and (y) the most recent but preceding Regular
Distribution Date to (ii) the Regular Distribution Date on which such
Scheduled Payment is being made, such interest to be considered payable in
arrears on such Regular Distribution Date and to be calculated and allocated
in the same manner as interest on the Series C Equipment Notes.
ARTICLE 2
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.1. The Advances. The Liquidity Provider hereby irrevocably
agrees, on the terms and conditions hereinafter set forth, to make Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until 12:00 noon (New York
City time) on the Expiry Date (unless the obligations of the Liquidity
Provider shall be earlier terminated in accordance with the terms of Section
2.4(b)) in an aggregate amount at any time outstanding not to exceed the
Maximum Commitment.
Section 2.2. Making the Advances.
(a) Interest Advances shall be made in one or more Borrowings by
delivery to the Liquidity Provider of one or more written and completed
Notices of Borrowing in substantially the form of Annex I attached hereto,
signed by a Responsible Officer of the Borrower, in an amount not exceeding
the Maximum Available Commitment at such time and shall be used solely for the
payment when due of the interest on the Class C Certificates at the Stated
Interest Rate therefor in accordance with Section 3.6(a) of the Intercreditor
Agreement. Each Interest Advance made hereunder shall automatically reduce the
Maximum Available Commitment and the amount available to be borrowed hereunder
by subsequent Advances by the amount of such Interest Advance (subject to
reinstatement as provided in the next sentence). Upon repayment to the
Liquidity Provider of all or any part of the amount of any Interest Advance
made pursuant to this Section 2.2(a), together with accrued interest thereon
(as provided herein), the Maximum Available Commitment shall be reinstated by
the amount of such repaid Interest Advance, but not to exceed the Maximum
Commitment; provided, however, that the Maximum Available Commitment shall not
be so reinstated at any time if (i) a Liquidity Event of Default shall have
occurred and be continuing and (ii) there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single Borrowing if
this Agreement is not extended in accordance with Section 3.6(d) of the
Intercreditor Agreement (unless a Replacement Liquidity Facility to replace
this Agreement shall have been previously delivered to the Borrower in
accordance with said Section 3.6(d)) by delivery to the Liquidity Provider of
a written and completed Notice of Borrowing in substantially the form of Annex
II attached hereto, signed by a Responsible Officer of the Borrower, in an
amount equal to the Maximum Available Commitment at such time, and shall be
used to fund the Class C Cash Collateral Account in accordance with said
Section 3.6(d) and Section 3.6(f) of the Intercreditor Agreement.
(c) A Downgrade Advance shall be made in a single Borrowing upon a
downgrading of the Liquidity Provider's short-term unsecured debt rating
issued by either Rating Agency below the applicable Threshold Rating (as
provided for in Section 3.6(c) of the Intercreditor Agreement) unless a
Replacement Liquidity Facility to replace this Agreement shall have been
previously delivered to the Borrower in accordance with said Section 3.6(c),
by delivery to the Liquidity Provider of a written and completed Notice of
Borrowing in substantially the form of Annex III attached hereto, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class C Cash
Collateral Account in accordance with said Section 3.6(c) and Section 3.6(f)
of the Intercreditor Agreement.
(d) A Final Advance shall be made in a single Borrowing upon the
receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.1 hereof by delivery to the Liquidity Provider of a
written and completed Notice of Borrowing in substantially the form of Annex
IV attached hereto, signed by a Responsible Officer of the Borrower, in an
amount equal to the Maximum Available Commitment at such time, and shall be
used to fund the Class C Cash Collateral Account (in accordance with Sections
3.6(f) and 3.6(i) of the Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a "Notice of
Borrowing") in substantially the form required by Section 2.2(a), 2.2(b),
2.2(c) or 2.2(d), as the case may be, given by the Borrower to the Liquidity
Provider. If a Notice of Borrowing is delivered by the Borrower in respect of
any Borrowing no later than 10:00 a.m. (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.2 with
respect to a requested Borrowing, the Liquidity Provider shall make available
to the Borrower, in accordance with its payment instructions, the amount of
such Borrowing in U.S. dollars and immediately available funds, before 12:30
p.m. (New York City time) on such Business Day or on such later Business Day
specified in such Notice of Borrowing. If a Notice of Borrowing is delivered
by the Borrower in respect of any Borrowing after 10:00 a.m. (New York City
time) on a Business Day, upon satisfaction of the conditions precedent set
forth in Section 4.2 with respect to a requested Borrowing, the Liquidity
Provider shall make available to the Borrower, in accordance with its payment
instructions, the amount of such Borrowing in U.S. dollars and in immediately
available funds, before 12:30 p.m. (New York City time) on the first Business
Day next following the day of receipt of such Notice of Borrowing or on such
later Business Day specified by the Borrower in such Notice of Borrowing.
Payments of proceeds of a Borrowing shall be made by wire transfer of
immediately available funds to the Borrower in accordance with such wire
transfer instructions as the Borrower shall furnish from time to time to the
Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower.
(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing, in accordance with the Borrower's payment instructions, the
Liquidity Provider shall be fully discharged of its obligation hereunder with
respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other Person.
Notwithstanding the provisions of Section 2.02(e), if the Liquidity Provider
makes an Advance requested pursuant to a Notice of Borrowing before 12:30 p.m.
(New York City time) on the Business Day after the date of payment specified
in said Section 2.02(e), the Liquidity Provider shall have fully discharged
its obligations hereunder with respect to such Advance and shall not be in
default hereunder. Following the making of any Advance pursuant to Section
2.2(b), (c) or (d) hereof to fund the Class C Cash Collateral Account, the
Liquidity Provider shall have no interest in or rights to the Class C Cash
Collateral Account, such Advance or any other amounts from time to time on
deposit in the Class C Cash Collateral Account; provided that the foregoing
shall not affect or impair the obligations of the Subordination Agent to make
the distributions contemplated by Section 3.6(e) or (f) of the Intercreditor
Agreement. By paying to the Borrower proceeds of Advances requested by the
Borrower in accordance with the provisions of this Agreement, the Liquidity
Provider makes no representation as to, and assumes no responsibility for, the
correctness or sufficiency for any purpose of the amount of the Advances so
made and requested.
Section 2.3. Fees. The Borrower agrees to pay to the Liquidity
Provider the fees set forth in the Fee Letter.
Section 2.4. Adjustments or Termination of the Maximum Commitment.
(a) Automatic Adjustments. Promptly following each date on which the
Required Amount is (1) reduced as a result of a reduction in the Pool Balance
of the Class C Certificates or otherwise, (2) increased as a result of an
increase in the "Stated Interest Rate", or (3) subsequent to such an increase
described in clause (2), reduced pursuant to the definition of "State Interest
Rate", 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 reduction
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) Termination. Upon the making of any Provider Advance or Final
Advance hereunder or the occurrence of the Termination Date, the obligation of
the Liquidity Provider to make further Advances hereunder shall automatically
and irrevocably terminate, and the Borrower shall not be entitled to request
any further Borrowing hereunder.
Section 2.5. Repayments of Interest Advances or the Final Advance.
Subject to Sections 2.6, 2.7 and 2.9 hereof, the Borrower hereby agrees,
without notice of an Advance or demand for repayment from the Liquidity
Provider (which notice and demand are hereby waived by the Borrower), to pay,
or to cause to be paid, to the Liquidity Provider on each date on which the
Liquidity Provider shall make an Interest Advance or the Final Advance, an
amount equal to (a) the amount of such Advance (any such Advance, until
repaid, is referred to herein as an "Unpaid Advance"), plus (b) interest on
the amount of each such Unpaid Advance as provided in Section 3.7 hereof;
provided that if (i) the Liquidity Provider shall make a Provider Advance at
any time after making one or more Interest Advances which shall not have been
repaid in accordance with this Section 2.5 or (ii) this Liquidity Facility
shall become a Downgraded Facility or Non-Extended Facility at any time when
unreimbursed Interest Advances have reduced the Maximum Available Commitment
to zero, then such Interest Advances shall cease to constitute Unpaid Advances
and shall be deemed to have been converted into an Applied Downgrade Advance
or an Applied Non-Extension Advance, as the case may be, for all purposes of
this Agreement (including, without limitation, for the purpose of determining
when such Interest Advance is required to be repaid to the Liquidity Provider
in accordance with Section 2.6 and for the purposes of Section 2.6(b)). The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance and Final Advance on the date such Advance is made is
intended to be a contemporaneous exchange for new value given to the Borrower
by the Liquidity Provider.
Section 2.6. Repayments of Provider Advances.
(a) Amounts advanced hereunder in respect of a Provider Advance
shall be deposited in the Class C Cash Collateral Account, invested and
withdrawn from the Class C Cash Collateral Account as set forth in Sections
3.6(c), (d) and (f) of the Intercreditor Agreement. The Borrower agrees to pay
to the Liquidity Provider, on each Regular Distribution Date, commencing on
the first Regular Distribution Date after the making of a Provider Advance,
interest on the principal amount of any such Provider Advance as provided in
Section 3.7; provided, however, that amounts in respect of a Provider Advance
withdrawn from the Class C Cash Collateral Account
for the purpose of paying interest on the Class C Certificates in accordance
with Section 3.6(f) of the Intercreditor Agreement (the amount of any such
withdrawal being (y) in the case of a Downgrade Advance, an "Applied Downgrade
Advance" and (z) in the case of a Non-Extension Advance, an "Applied
Non-Extension Advance" and, together with an Applied Downgrade Advance, an
"Applied Provider Advance") shall thereafter (subject to Section 2.6(b)) be
treated as an Interest Advance under this Agreement for purposes of
determining the Applicable Liquidity Rate for interest payable thereon;
provided further, however, that if, following the making of a Provider
Advance, the Liquidity Provider delivers a Termination Notice to the Borrower
pursuant to Section 6.1 hereof, such Provider Advance shall thereafter be
treated as a Final Advance under this Agreement for purposes of determining
the Applicable Liquidity Rate for interest payable thereon. Subject to
Sections 2.7 and 2.9 hereof, immediately upon the withdrawal of any amounts
from the Class C Cash Collateral Account on account of a reduction in the
Required Amount, the Borrower shall repay to the Liquidity Provider a portion
of the Provider Advances in a principal amount equal to the amount of such
reduction, plus interest on the principal amount prepaid as provided in
Section 3.7 hereof.
(b) At any time when an Applied Provider Advance (or any portion
thereof) is outstanding, upon the deposit in the Class C Cash Collateral
Account of any amount pursuant to clause "third" of Section 2.4(b) of the
Intercreditor Agreement, clause "third" of Section 3.2 of the Intercreditor
Agreement or clause "fourth" of Section 3.3 of the Intercreditor Agreement
(any such amount being a "Replenishment Amount") for the purpose of
replenishing or increasing the balance thereof up to the Required Amount at
such time, (i) the aggregate outstanding principal amount of all Applied
Provider Advances (and of Provider Advances treated as an Interest Advance for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon) shall be automatically reduced by the amount of such Replenishment
Amount and (ii) the aggregate outstanding principal amount of all Unapplied
Provider Advances shall be automatically increased by the amount of such
Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in
replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, amounts remaining on deposit in the Class C Cash
Collateral Account after giving effect to any Applied Provider Advance on the
date of such replacement shall be reimbursed to the Liquidity Provider, but
only to the extent such amounts are necessary to repay in full to the
Liquidity Provider all amounts owing to it hereunder.
Section 2.7. Payments to the Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to
the Liquidity Provider in accordance with the terms thereof. Amounts so paid
to the Liquidity Provider shall be applied by the Liquidity Provider to
Liquidity Obligations then due and payable in accordance with the
Intercreditor Agreement or, if not provided for in the Intercreditor
Agreement, then in such manner as the Liquidity Provider shall deem
appropriate.
Section 2.8. Book Entries. The Liquidity Provider shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower
resulting from Advances made from time to time and the amounts of principal
and interest payable hereunder and paid from time to time in respect thereof;
provided, however, that the failure by the Liquidity Provider to maintain such
account or accounts shall not affect the obligations of the Borrower in
respect of Advances.
Section 2.9. Payments from Available Funds Only. All payments to be
made by the Borrower under this Agreement shall be made only from the amounts
received by it that constitute Scheduled Payments, Special Payments or
payments under Section 7 (Owned Aircraft) or Section 9 (Leased Aircraft) of
the Participation Agreements and Section 6 of the Note Purchase Agreement and
only to the extent that the Borrower shall have sufficient income or proceeds
therefrom to enable the Borrower to make payments in accordance with the terms
hereof after giving effect to the priority of payments provisions set forth in
the Intercreditor Agreement. The Liquidity Provider agrees that it will look
solely to such amounts to the extent available for distribution to it as
provided in the Intercreditor Agreement and this Agreement and that the
Borrower, in its individual capacity, is not personally liable to it for any
amounts payable or liability under this Agreement except as expressly provided
in this Agreement, the Intercreditor Agreement or any Participation Agreement.
Amounts on deposit in the Class C Cash Collateral Account shall be available
to the Borrower to make payments under this Agreement only to the extent and
for the purposes expressly contemplated in Section 3.6(f) of the Intercreditor
Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension Advance.
No earlier than the 60th day and no later than the 40th day prior to the then
effective Expiry Date (unless such Expiry Date is on or after the date that is
15 days after the Final Legal Distribution Date for the Class C Certificates),
the Borrower shall request that the Liquidity Provider extend the Expiry Date
to the earlier of (i) the date which is 15 days after the Final Legal
Distribution Date for the Class C Certificates and (ii) the day that is the
day immediately preceding the 364th day occurring after the then effective
Expiry Date (unless the obligations of the Liquidity Provider are earlier
terminated in accordance with the terms hereof). The Liquidity Provider shall
advise the Borrower, no earlier than 40 days and no later than 25 days prior
to the then effective Expiry Date, whether, in its sole discretion, it agrees
to so extend the Expiry Date. If the Liquidity Provider advises the Borrower
on or before the 25th day prior to the Expiry Date then in effect that such
Expiry Date shall not be so extended, or fails irrevocably and unconditionally
to advise the Borrower on or before the 25th day prior to the Expiry Date then
in effect that such Expiry Date shall be so extended (and, in each case, if
the Liquidity Provider shall not have been replaced in accordance with Section
3.6(e) of the Intercreditor Agreement), the Borrower shall be entitled on and
after such 25th day (but prior to the then effective Expiry Date) to request a
Non-Extension Advance in accordance with Section 2.2(b) hereof and Section
3.6(d) of the Intercreditor Agreement.
ARTICLE 3
OBLIGATIONS OF THE BORROWER
Section 3.1. Increased Costs. Subject to the Fee Letter, the
Borrower shall pay to the Liquidity Provider, upon demand by the Liquidity
Provider (such demand to be made not later than 180 days after a Responsible
Officer of the Liquidity Provider obtains actual knowledge of any event
referred to in clause (1) or (2) below), such amounts as may be necessary
to compensate the Liquidity Provider for any increased costs incurred by the
Liquidity Provider which are attributable to its making or maintaining any
LIBOR Advances hereunder or its obligation to make any such Advances
hereunder, or any reduction in any amount receivable by the Liquidity Provider
under this Agreement or the Intercreditor Agreement in respect of any such
Advances or such obligation (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any change
after the date of this Agreement in U.S. federal, state, municipal, or foreign
laws or regulations (including Regulation D), or the adoption or making after
the date of this Agreement of any interpretations, directives, or requirements
applying to a class of banks including the Liquidity Provider under any U.S.
federal, state, municipal, or any foreign laws or regulations (whether or not
having the force of law) by any court, central bank or monetary authority
charged with the interpretation or administration thereof (a "Regulatory
Change"), which: (1) changes the basis of taxation of any amounts payable to
the Liquidity Provider under this Agreement in respect of any such Advances
(other than Excluded Taxes); or (2) imposes or modifies any reserve, special
deposit, compulsory loan or similar requirements relating to any extensions of
credit or other assets of, or any deposits with other liabilities of, the
Liquidity Provider (including any such Advances or any deposits referred to in
the definition of LIBOR Rate or related definitions); provided that if such
demand for payment is made after such 180-day period, the Borrower shall be
obligated to pay such amounts only with respect to such increased cost
actually incurred or effected on or after the 180th day prior to the date of
such demand. The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.1 that
may thereafter accrue and would not, in the reasonable judgment of the
Liquidity Provider, be otherwise disadvantageous to the Liquidity Provider.
The Liquidity Provider agrees that if it shall make a demand for
payment of additional amounts under this Section 3.1, the Borrower shall have
the right to obtain a Replacement Liquidity Facility in replacement of this
Agreement in accordance with Section 3.6(e) of the Intercreditor Agreement
provided that such replacement would eliminate or reduce the obligation of the
Borrower to pay such additional amounts. The Liquidity Provider will notify
the Borrower of any event occurring after the date of this Agreement that will
entitle the Liquidity Provider to compensation pursuant to this Section 3.1 as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation, which notice shall describe in reasonable detail
the calculation of the amounts owed under this Section. Determinations by the
Liquidity Provider for purposes of this Section 3.1 of the effect of any
Regulatory Change on its costs of making or maintaining Advances or on amounts
receivable by it in respect of Advances, and of the additional amounts
required to compensate the Liquidity Provider in respect of any Additional
Costs, shall be prima facie evidence of the amount owed under this Section.
Section 3.2. Capital Adequacy. Subject to the Fee Letter, if (1) the
adoption, after the date hereof, of any applicable governmental law, rule or
regulation regarding capital adequacy, (2) any change, after the date hereof,
in the interpretation or administration of any such law, rule or regulation by
any central bank or other governmental authority charged with the
interpretation or administration thereof or (3) compliance by the Liquidity
Provider or any corporation controlling the Liquidity Provider with any
applicable guideline or request of general applicability, issued after the
date hereof, by any central bank or other governmental authority
(whether or not having the force of law) that constitutes a change of the
nature described in clause (2), has the effect of requiring an increase in the
amount of capital required to be maintained by the Liquidity Provider or any
corporation controlling the Liquidity Provider, and such increase is based
upon the Liquidity Provider's obligations hereunder and other similar
obligations and has the effect of reducing the rate of return on the Liquidity
Provider's capital as a consequence of issuing or maintaining its commitment
hereunder or its funding or maintaining Advances to a level below that which
the Liquidity Provider could have achieved but for such adoption, change or
compliance (taking into consideration the Liquidity Provider's policies with
respect to capital adequacy) by an amount deemed by the Liquidity Provider to
be material, then, upon demand by the Liquidity Provider, the Borrower shall
pay to the Liquidity Provider from time to time such additional amount or
amounts as are necessary to compensate the Liquidity Provider for such portion
of such increase as shall be reasonably allocable to the Liquidity Provider's
obligations to the Borrower hereunder. The Liquidity Provider agrees to use
reasonable efforts (consistent with applicable legal and regulatory
restrictions) to change the jurisdiction of its Lending Office if making such
change would avoid the need for, or reduce the amount of, any amount payable
under this Section that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise materially disadvantageous to
the Liquidity Provider.
The Liquidity Provider agrees that if it shall make a demand for
payment of additional amounts under this Section 3.2 the Borrower shall have
the right to obtain a Replacement Liquidity Facility in replacement of this
Agreement in accordance with Section 3.6(c) of the Intercreditor Agreement
provided that such replacement would eliminate or reduce the obligation of the
Borrower to pay such additional amounts. The Liquidity Provider will notify
the Borrower of any event occurring after the date of this Agreement that will
entitle the Liquidity Provider to compensation pursuant to this Section 3.2 as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation, which notice shall describe in reasonable detail
the calculation of the amounts owed under this Section. Determinations by the
Liquidity Provider for purposes of this Section 3.2 of the effect of any
increase in the amount of capital required to be maintained by the Liquidity
Provider and of the amount allocable to the Liquidity Provider's obligations
to the Borrower hereunder shall be prima facie evidence of the amounts owed
under this Section.
Section 3.3. Payments Free of Deductions. All payments made by the
Borrower under this Agreement shall be made free and clear of, and without
reduction for or on account of, any present or future stamp or other taxes,
levies, imposts, duties, charges, fees, deductions, withholdings, restrictions
or conditions of any nature whatsoever now or hereafter imposed, levied,
collected, withheld or assessed, excluding Excluded Taxes (such non-excluded
taxes being referred to herein, collectively, as "Non-Excluded Taxes" and,
individually, as a "Non-Excluded Tax"). If any Non-Excluded Taxes are required
to be withheld from any amounts payable to the Liquidity Provider under this
Agreement, the amounts so payable to the Liquidity Provider shall be increased
to the extent necessary to yield to the Liquidity Provider (after payment of
all Non-Excluded Taxes and taxes imposed on the receipt of such increase)
interest or any other such amounts payable under this Agreement at the rates
or in the amounts specified in this Agreement. The Liquidity Provider agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Lending Office if
making such change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the reasonable
judgment of the
Liquidity Provider, be otherwise disadvantageous to the Liquidity Provider.
The Liquidity Provider is duly organized and validly existing as a national
banking association under the laws of the United States of America.
Section 3.4. Payments. The Borrower shall make or cause to be made
each payment to the Liquidity Provider under this Agreement so as to cause the
same to be received by the Liquidity Provider not later than 1:00 P.M. (New
York City time) on the day when due. The Borrower shall make all such payments
in lawful money of the United States of America, to the Liquidity Provider in
immediately available funds, by wire transfer to the account of Citibank, N.A.
at Citibank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, ABA #000000000,
Account #4063-2387, Reference: American Trans Air Pass Through Trust, Series
2000-1C, Attention: Xxxxxxx Xxxxx.
Section 3.5. Computations. All computations of interest based on the
Base Rate shall be made on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the LIBOR Rate shall be made
on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest is payable.
Section 3.6. Payment on Non-Business Days. Whenever any payment to
be made hereunder shall be stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day and no
additional interest shall be due as a result (and if so made, shall be deemed
to have been made when due). If any payment in respect of interest on an
Advance is so deferred to the next succeeding Business Day, such deferral
shall not delay the commencement of the next Interest Period for such Advance
or reduce the number of days for which interest will be payable on such
Advance on the next interest payment date for such Advance.
Section 3.7. Interest.
(a) Subject to Section 2.9, the Borrower shall pay, or shall cause
to be paid, without duplication, interest on (i) the unpaid principal amount
of each Advance from and including the date of such Advance (or, in the case
of an Applied Provider Advance, from and including the date on which the
amount thereof was withdrawn from the Class C Cash Collateral Account to pay
interest on the Class C Certificates) to but excluding the date such principal
amount shall be paid in full (or, in the case of an Applied Provider Advance,
the date on which the Class C Cash Collateral Account is fully replenished in
respect of such Advance) and (ii) any other amount due hereunder (whether
fees, commissions, expenses or other amounts or, to the extent permitted by
law, installments of interest on Advances or any such other amount) which is
not paid when due (whether at stated maturity, by acceleration or otherwise)
from and including the due date thereof to but excluding the date such amount
is paid in full, in each such case, at a fluctuating interest rate per annum
for each day equal to the Applicable Liquidity Rate (as defined below) for
such Advance or such other amount as in effect for such day, but in no event
at a rate per annum greater than the maximum rate permitted by applicable law;
provided, however, that, if at any time the otherwise applicable interest rate
as set forth in this Section 3.7 shall exceed the maximum rate permitted by
applicable law, then any subsequent reduction in such interest rate will not
reduce the rate of interest payable pursuant to this Section 3.7 below the
maximum rate permitted by applicable law until the total amount of interest
accrued equals
the amount of interest that would have accrued if such otherwise applicable
interest rate as set forth in this Section 3.7 had at all times been in
effect.
(b) Each Advance (including, without limitation, each outstanding
Unapplied Provider Advance) will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section. Each such Advance will be a Base Rate
Advance for the period from the date of its borrowing to (but excluding) the
third Business Day following the Liquidity Provider's receipt of the Notice of
Borrowing for such Advance. Thereafter, such Advance shall be a LIBOR Advance;
provided that the Borrower (at the direction of the Controlling Party, so long
as the Liquidity Provider is not the Controlling Party) may (x) convert the
Final Advance into a Base Rate Advance on the last day of an Interest Period
for such Advance by giving the Liquidity Provider no less than four Business
Days' prior written notice of such election or (y) elect to maintain the Final
Advance as a Base Rate Advance by not requesting a conversion of the Final
Advance to a LIBOR Advance under Clause (5) of the applicable Notice of
Borrowing (or, if such Final Advance is deemed to have been made, without
delivery of a Notice of Borrowing pursuant to Section 2.6, by requesting,
prior to 11:00 a.m. on the first Business Day immediately following the
Borrower's receipt of the applicable Termination Notice, that such Final
Advance not be converted from a Base Rate Advance to a LIBOR Advance).
(c) Each LIBOR Advance shall bear interest during each Interest
Period at a rate per annum equal to the LIBOR Rate for such Interest Period
plus the Applicable Margin for such LIBOR Advance, payable in arrears on the
last day of such Interest Period and, in the event of the payment of principal
of such LIBOR Advance on a day other than such last day, on the date of such
payment (to the extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin for such Base Rate Advance,
payable in arrears on each Regular Distribution Date and, in the event of the
payment of principal of such Base Rate Advance on a day other than a Regular
Distribution Date, on the date of such payment (to the extent of interest
accrued on the amount of principal repaid). Each change in the Base Rate shall
become effective immediately.
(e) [intentionally omitted]
(f) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances but excluding Advances)
shall bear interest at a rate per annum equal to the Base Rate plus 2.00%
until paid.
(g) The rates of interest specified in this Section 3.7 with respect
to any Advance or other amount shall be referred to as the "Applicable
Liquidity Rate".
Section 3.8. Replacement of Borrower. From time to time and subject
to the successor Borrower's meeting the eligibility requirements set forth in
Section 6.9 of the Intercreditor Agreement applicable to the Subordination
Agent upon the effective date and time specified in a written and completed
Notice of Replacement Subordination Agent in substantially the form of Annex
VI attached hereto (a "Notice of Replacement Subordination Agent")
delivered to the Liquidity Provider by the then Borrower, the successor
Borrower designated therein shall be substituted for as the Borrower for all
purposes hereunder.
Section 3.9. Funding Loss Indemnification. The Borrower shall pay to
the Liquidity Provider, upon the request of the Liquidity Provider, such
amount or amounts as shall be sufficient (in the reasonable opinion of the
Liquidity Provider) to compensate it for any loss, cost, or expense incurred
by reason of the liquidation or redeployment of deposits or other funds
acquired by the Liquidity Provider to fund or maintain any LIBOR Advance (but
excluding loss of anticipated profits) incurred as a result of:
(a) Any repayment of a LIBOR Advance on a date other than
the last day of the Interest Period for such Advance; or
(b) Any failure by the Borrower to borrow a LIBOR Advance on
the date for borrowing specified in the relevant notice under Section
2.2.
Section 3.10. Illegality. Notwithstanding any other provision in
this Agreement, if any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by the Liquidity Provider (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency shall make it
unlawful or impossible for the Liquidity Provider (or its Lending Office) to
maintain or fund its LIBOR Advances, then upon notice to the Borrower by the
Liquidity Provider, the outstanding principal amount of the LIBOR Advances
shall be converted to Base Rate Advances (a) immediately upon demand of the
Liquidity Provider, if such change or compliance with such request, in the
judgment of the Liquidity Provider, requires immediate repayment; or (b) at
the expiration of the last Interest Period to expire before the effective date
of any such change or request.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.1. Conditions Precedent to Effectiveness of Section 2.1.
Section 2.1 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied or waived:
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, and in the case of each document
delivered pursuant to paragraphs (i), (ii) and (iii), each in form and
substance satisfactory to the Liquidity Provider:
(i) this Agreement duly executed on behalf of the Borrower;
(ii) the Intercreditor Agreement duly executed on behalf of
each of the parties thereto;
(iii) fully executed copies of each of the Operative Agreements
executed and delivered on or before the Closing Date (other than
this Agreement and the Intercreditor Agreement) and each Guaranty
(as defined in each Participation Agreement) entered into on or
prior to the date hereof;
(iv) a copy of the Offering Memorandum and a specimen copy of
the Class C Certificate;
(v) an executed copy of each document, instrument, certificate
and opinion delivered on or before the Closing Date pursuant to the
Class C Trust Agreement, the Intercreditor Agreement, the
Participation Agreements and the other Operative Agreements entered
into on or prior to the date hereof (in the case of each such
opinion, other than the opinion of counsel for the Initial
Purchasers, either addressed to the Liquidity Provider or
accompanied by a letter from the counsel rendering such opinion to
the effect that the Liquidity Provider is entitled to rely on such
opinion as of its date as if it were addressed to the Liquidity
Provider);
(vi) evidence that there shall have been made and shall be in
full force and effect, all filings, recordings and/or registrations,
and there shall have been given or taken any notice or other similar
action as may be reasonably necessary or, to the extent reasonably
requested by the Liquidity Provider, reasonably advisable, in order
to establish, perfect, protect and preserve the right, title and
interest, remedies, powers, privileges, liens and security interests
of, or for the benefit of, the Trustees, the Borrower and the
Liquidity Provider created by the Operative Agreements executed and
delivered on or prior to the Closing Date;
(vii) a letter from Amtran agreeing to provide to the Liquidity
Provider the periodic financial reports referred to in Section 8.04
of the Trust Agreements and agreeing to cause the Company to deliver
to the Liquidity Provider with respect to any Participation
Agreement or Financing Agreement executed and delivered after the
date hereof, the certificate referred to in Section 2(b) of the Note
Purchase Agreement; and
(viii) such other documents, instruments, opinions and
approvals pertaining to the transactions contemplated hereby or by
the other Operative Agreements as the Liquidity Provider shall have
reasonably requested.
(b) The following statement shall be true on and as of the
Effective Date: no event has occurred and is continuing, or would
result from the entering into of this Agreement or the making of any
Advance, which constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment in full
of all fees and other sums required to be paid to or for the account
of the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied or
waived, and all conditions precedent to the purchase of the
Certificates on the Closing Date by the Initial Purchasers shall
have been satisfied (unless any of such conditions precedent shall
have been waived by the Initial Purchasers).
(e) The Borrower shall have received a certificate, dated the
date hereof, signed by a duly authorized representative of the
Liquidity Provider, certifying that all conditions precedent to the
effectiveness of Section 2.1 have been satisfied or waived.
Section 4.2. Conditions Precedent to Borrowing. The obligation of
the Liquidity Provider to make an Advance on the occasion of each Borrowing
shall be subject to the conditions precedent that the Effective Date shall
have occurred and, prior to the date of such Borrowing, the Borrower shall
have delivered a Notice of Borrowing which conforms to the terms and
conditions of this Agreement and has been completed as may be required by the
relevant form of the Notice of Borrowing for the type of Advances requested.
ARTICLE 5
COVENANTS
Section 5.1. Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any
amount to the Liquidity Provider hereunder, the Borrower will, unless the
Liquidity Provider shall otherwise consent in writing:
(1) Performance of This and Other Agreements. Punctually pay
or cause to be paid all amounts payable by it under this Agreement
and the other Operative Agreements and observe and perform in all
material respects the conditions, covenants and requirements
applicable to it contained in this Agreement and the other Operative
Agreements.
(2) Reporting Requirements. Furnish to the Liquidity
Provider with reasonable promptness, such other information and data
with respect to the transactions contemplated by the Operative
Agreements as from time to time may be reasonably requested by the
Liquidity Provider; and permit the Liquidity Provider, upon
reasonable notice, to inspect the Borrower's books and records with
respect to such transactions and to meet with officers and employees
of the Borrower to discuss such transactions.
(3) Certain Operative Agreements. Furnish to the Liquidity
Provider with reasonable promptness, such Operative Agreements
entered into after the date hereof as from time to time may be
reasonably requested by the Liquidity Provider.
Section 5.2. Negative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any
amount to the Liquidity Provider hereunder, the Borrower will not without the
prior written consent of the Liquidity Provider:
(a) Amendments. Modify, amend or supplement, or give any consent
to any modification, amendment or supplement or make any waiver with
respect to, any provision of the Trust Agreements or the
Intercreditor Agreement, except for any supplemental agreement to the
Trust Agreements provided for in Section 9.01 thereof.
(b) Borrower. Appoint or permit or suffer to be appointed any
successor Borrower without the prior written approval of the
Liquidity Provider (which approval shall not be unreasonably withheld
or delayed).
ARTICLE 6
LIQUIDITY EVENTS OF DEFAULT
Section 6.1. Liquidity Events of Default. If (a) any Liquidity Event
of Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Liquidity Provider may, in its discretion, deliver to the
Borrower a Termination Notice, the effect of which shall be to cause (i) the
obligation of the Liquidity Provider to make Advances hereunder to expire on
the fifth Business Day after the date on which such Termination Notice is
received by the Borrower, (ii) the Borrower to promptly request, and the
Liquidity Provider to promptly make, a Final Advance in accordance with
Section 2.2(d) hereof and Section 3.6(i) of the Intercreditor Agreement, (iii)
all other outstanding Advances to be automatically converted into Final
Advances for purposes of determining the Applicable Liquidity Rate for
interest payable thereon, and (iv) subject to Sections 2.7 and 2.9 hereof, all
Advances (including, without limitation, any Provider Advance and Applied
Provider Advance), any accrued interest thereon and any other amounts
outstanding hereunder to become immediately due and payable to the Liquidity
Provider.
ARTICLE 7
MISCELLANEOUS
Section 7.1. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Liquidity Provider, and, in the case of an amendment or of a
waiver by the Borrower, the Borrower, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
Section 7.2. Notices, Etc. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be
in writing (including telecopier and mailed or delivered or sent by
telecopier):
21
Borrower: WILMINGTON TRUST COMPANY
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Liquidity Provider: CITIBANK, N.A.
0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Reference: American Trans Air Pass Through
Trust 2000-1C
with a copy to:
CITIBANK, N.A.
000 Xxxx Xxxxxx 00/0
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Reference: American Trans Air Pass Through
Trust 2000-1C
or, as to each of the foregoing, at such other address as shall be designated
by such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when transmitted
to the telecopier number specified above, and (ii) if given by other means,
when delivered at the address specified above, except that written notices to
the Liquidity Provider pursuant to the provisions of Articles II and III
hereof shall not be effective until received by the Liquidity Provider. A copy
of all notices delivered hereunder to either party shall in addition be
delivered to each of the parties to the Participation Agreements at their
respective addresses set forth therein.
Section 7.3 No Waiver; Remedies. No failure on the part of the
Liquidity Provider to exercise, and no delay in exercising, any right under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 7.4. Further Assurances. The Borrower agrees to do such
further acts and things and to execute and deliver to the Liquidity Provider
such additional assignments, agreements, powers and instruments as the
Liquidity Provider may reasonably require or deem advisable to carry into
effect the purposes of this Agreement and the other Operative Agreements or to
better assure and confirm unto the Liquidity Provider its rights, powers and
remedies hereunder and under the other Operative Agreements.
Section 7.5. Indemnification; Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 7 of the Participation Agreements and Section 6 of
the Note Purchase Agreement. In addition, the Borrower agrees to indemnify,
protect, defend and hold harmless the Liquidity Provider from, against and in
respect of, and shall pay on demand, all Expenses of any kind or nature
whatsoever (other than any Expenses of the nature described in Sections 3.1,
3.2 or 7.7 hereof or in the Fee Letter (regardless of whether indemnified
against pursuant to said Sections or in such Fee Letter)), that may be
imposed, incurred by or asserted against any Liquidity Indemnitee, in any way
relating to, resulting from, or arising out of or in connection with any
action, suit or proceeding by any third party against such Liquidity
Indemnitee and relating to this Agreement, the Fee Letter, the Intercreditor
Agreement or any Financing Agreement; provided, however, that the Borrower
shall not be required to indemnify, protect, defend and hold harmless any
Liquidity Indemnitee in respect of any Expense of such Liquidity Indemnitee to
the extent such Expense is (i) attributable to the gross negligence or willful
misconduct of such Liquidity Indemnitee or any other Liquidity Indemnitee,
(ii) ordinary and usual operating overhead expense, or (iii) attributable to
the failure by such Liquidity Indemnitee or any other Liquidity Indemnitee to
perform or observe any agreement, covenant or condition on its part to be
performed or observed in this Agreement, the Intercreditor Agreement, the Fee
Letter or any other Operative Agreement to which it is a party. The
indemnities contained in Section 7 of the Participation Agreements, and the
provisions of Sections 3.1, 3.2, 3.3, 3.9, 7.5 and 7.7 hereof, shall survive
the termination of this Agreement.
Section 7.6. Liability of the Liquidity Provider.
(1) Neither the Liquidity Provider nor any of its officers,
employees, directors or Affiliates shall be liable or responsible for: (i) the
use which may be made of the Advances or any acts or omissions of the Borrower
or any beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even
if such documents should prove to be in any or all respects invalid,
insufficient, fraudulent or forged; or (iii) the making of Advances by the
Liquidity Provider against delivery of a Notice of Borrowing and other
documents which do not comply with the terms hereof; provided, however, that
the Borrower shall have a claim against the Liquidity Provider, and the
Liquidity Provider shall be liable to the Borrower, to the extent of any
damages suffered by the Borrower which were the result of (A) the Liquidity
Provider's willful misconduct or negligence in determining whether documents
presented hereunder comply with the terms hereof, or (B) any breach by the
Liquidity Provider of any of the terms of this Agreement, including, but not
limited to, the Liquidity Provider's failure to make lawful payment hereunder
after the delivery to it by the Borrower of a Notice of Borrowing strictly
complying with the terms and conditions hereof.
(2) Neither the Liquidity Provider nor any of its officers,
employees, directors or Affiliates shall be liable or responsible in any
respect for (i) any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with this Agreement or any Notice of Borrowing
delivered hereunder, or (ii) any action, inaction or omission which may be
taken by it in good faith, absent willful misconduct or negligence (in which
event the extent of the Liquidity Provider's potential liability to the
Borrower shall be limited as set forth in the immediately preceding
paragraph), in connection with this Agreement or any Notice of Borrowing.
Section 7.7. Costs, Expenses and Taxes. The Borrower agrees to pay,
or cause to be paid (A) on the Effective Date and on such later date or dates
on which the Liquidity Provider shall make demand, all reasonable
out-of-pocket costs and expenses (including, without limitation, the
reasonable fees and expenses of outside counsel for the Liquidity Provider) of
the Liquidity Provider in connection with the preparation, negotiation,
execution, delivery, filing and recording of this Agreement, any other
Operative Agreement and any other documents which may be delivered in
connection with this Agreement and (B) on demand, all reasonable costs and
expenses (including reasonable counsel fees and expenses) of the Liquidity
Provider in connection with (i) the enforcement of this Agreement or any other
Operative Agreement, (ii) the modification or amendment of, or supplement to,
this Agreement or any other Operative Agreement or such other documents which
may be delivered in connection herewith or therewith (whether or not the same
shall become effective) or (iii) any action or proceeding relating to any
order, injunction, or other process or decree restraining or seeking to
restrain the Liquidity Provider from paying any amount under this Agreement,
the Intercreditor Agreement or any other Operative Agreement or otherwise
affecting the application of funds in the Class C Cash Collateral Account. In
addition, the Borrower shall pay any and all recording, stamp and other
similar taxes and fees payable or determined to be payable in connection with
the execution, delivery, filing and recording of this Agreement, any other
Operative Agreement and such other documents, and agrees to save the Liquidity
Provider harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes or fees.
Section 7.8. Binding Effect; Participations.
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrower and the Liquidity Provider and their respective successors and
assigns, except that neither the Liquidity Provider (except as otherwise
provided in this Section 7.8) nor (except as contemplated by Section 3.8) the
Borrower shall have the right to assign its rights or obligations hereunder or
any interest herein without the prior written consent of the other party,
subject to the requirements of Section 7.8(b). The Liquidity Provider may
grant participations herein or in any of its rights hereunder (including,
without limitation, funded participations and participations in rights to
receive interest payments hereunder) and under the other Operative Agreements
to such Persons (other than ATA or its Affiliates) as the Liquidity Provider
may in its sole discretion select, subject to the requirements of Section
7.8(b). No such participation by the Liquidity Provider, however, will relieve
the Liquidity Provider of its obligations hereunder. In connection with any
participation or any proposed participation, the Liquidity Provider may
disclose to the participant or the proposed participant any information that
the Borrower is required to deliver or to disclose to the Liquidity Provider
pursuant to this Agreement. The Borrower acknowledges and agrees that the
Liquidity Provider's source of funds may derive in part from its participants
adequacy
requirements, increased costs, reduced receipts, additional amounts
due pursuant to Section 3.3 and the like as they pertain to the Liquidity
Provider shall be deemed also to include those of each of its participants
(subject, in each case, to the maximum amount that would have been incurred by
or attributable to the Liquidity Provider directly if the Liquidity Provider,
rather than the participant, had held the interest participated).
(b) If, pursuant to subsection (a) above, the Liquidity Provider
sells any participation in this Agreement to any bank or other entity (each, a
"Transferee"), then, concurrently with the effectiveness of such
participation, the Transferee shall (i) represent to the Liquidity Provider
(for the benefit of the Liquidity Provider and the Borrower) either (A) that
it is incorporated under the laws of the United States or a state thereof or
(B) that under applicable law and treaties, no taxes will be required to be
withheld with respect to any payments to be made to such Transferee in respect
of this Agreement, (ii) furnish to the Liquidity Provider and the Borrower
either (x) a statement that it is incorporated under the laws of the United
States or a state thereof or (y) if it is not so incorporated, two copies of a
properly completed United States Internal Revenue Service Form W-8ECI or Form
W-8BEN, as appropriate, or other applicable form, certificate or document
prescribed by the Internal Revenue Service certifying, in each case, such
Transferee's entitlement to a complete exemption from United States federal
withholding tax with respect to any and all payments to be made hereunder, and
(iii) agree (for the benefit of the Liquidity Provider and the Borrower) to
provide the Liquidity Provider and the Borrower a new Form W-8ECI or Form
W-8BEN, as appropriate, (A) on or before the date that any such form expires
or becomes obsolete or (B) after the occurrence of any event requiring a
change in the most recent form previously delivered by it and prior to the
immediately following due date of any payment by the Borrower hereunder,
certifying in the case of a Form W-8BEN or Form W-8ECI that such Transferee is
entitled to a complete exemption from United States federal withholding tax on
payments under this Agreement. Unless the Borrower has received forms or other
documents reasonably satisfactory to it (and required by applicable law)
indicating that payments hereunder are not subject to United States federal
withholding tax, the Borrower will withhold taxes as required by law from such
payments at the applicable statutory rate.
(c) Notwithstanding the other provisions of this Section 7.8, the
Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank, provided that any payment in respect of such assigned Advances
made by the Borrower to the Liquidity Provider in accordance with the terms of
this Agreement shall satisfy the Borrower's obligations hereunder in respect
of such assigned Advance to the extent of such payment. No such assignment
shall release the Liquidity Provider from its obligations hereunder.
Section 7.9. Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of
such provision in any other jurisdiction.
Section 7.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity.
(a) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any
legal action or proceeding relating to this Agreement or any
other Operative Agreement, or for recognition and
enforcement of any judgment in respect hereof or thereof, to
the nonexclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of
America for the Southern District of New York, and the
appellate courts from any thereof;
(ii) consents that any such action or proceeding
may be brought in such courts, and waives any objection that
it may now or hereafter have to the venue of any such action
or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to
each party hereto at its address set forth in Section 7.2
hereof, or at such other address of which the Liquidity
Provider shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner
permitted by law or shall limit the right to xxx in any
other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort
claims, breach of duty claims and all other common law and statutory claims.
The Borrower and the Liquidity Provider each warrant and represent that it has
reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with such
legal counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 7.12. 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 7.13. Entirety. This Agreement, the Intercreditor Agreement
and the other Operative Agreements to which the Liquidity Provider is a party
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and supersedes all prior understandings and agreements
of such parties.
Section 7.14. Headings. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
Section 7.15. Transfer. The Liquidity Provider hereby acknowledges
and consents to the Transfer contemplated by the Assignment and Assumption
Agreement.
Section 7.16. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE
LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER,
SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN
EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
* * *
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as agent and trustee
for the Class C Trust, as Borrower
By: ____________________________
Name:
Title:
CITIBANK, N.A.,
as Liquidity Provider
By: ____________________________
Name:
Title:
Annex I to
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to CITIBANK, N.A. (the "Liquidity
Provider"), with reference to the Revolving Credit Agreement (2000-1C) dated
as of February 15, 2000, between the Borrower and the Liquidity Provider (the
"Liquidity Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used
for the payment of the interest on the Class C Certificates which
was payable on (the "Distribution Date") in accordance with the
terms and provisions of the Class C Trust Agreement and the Class C
Certificates, which Advance is requested to be made on
_______________.
(3) The amount of the Interest Advance requested hereby (i) is
$ , to be applied in respect of the payment of the interest which
was due and payable on the Class C Certificates on the Distribution
Date, (ii) does not include any amount with respect to the payment
of principal of, or premium on, the Class C Certificates, or
principal of, or interest or premium on the Class G Certificates,
(iii) was computed in accordance with the provisions of the Class C
Certificates, the Class C Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as
Schedule I), (iv) does not exceed the Maximum Available Commitment
on the date hereof, (v) does not include any amount of interest
which was due and payable on the Class C Certificates on such
Distribution Date but which remains unpaid due to the failure of the
Depositary to pay any amount of accrued interest on the Deposits on
such Distribution Date and (vi) has not been and is not the subject
of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will apply the same in accordance
with the terms of Section 3.6(b) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied
shall be commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Maximum Available Commitment by
an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Certificate and
such reduction shall automatically result in corresponding reductions in the
amounts available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice
of Borrowing as of the _____ day of _____________.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By: ________________________________
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice
of Borrowing]
Annex II
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to CITIBANK, N.A. (the "Liquidity
Provider"), with reference to the Revolving Credit Agreement (2000-1C) dated
as of February 15, 2000, between the Borrower and the Liquidity Provider (the
"Liquidity Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Non-Extension Advance by the Liquidity Provider to be used for
the funding of the Class C Cash Collateral Account in accordance with Section
3.6(d) of the Intercreditor Agreement, which Advance is requested to be made
on .
(3) The amount of the Non-Extension Advance requested hereby (i) is
$__________, which equals the Maximum Available Commitment on the date hereof
and is to be applied in respect of the funding of the Class C Cash Collateral
Account in accordance with Section 3.6(d) of the Intercreditor Agreement, (ii)
does not include any amount with respect to the payment of the principal of,
or premium on, the Class C Certificates, or principal of, or interest or
premium on the Class G Certificates, (iii) was computed in accordance with the
provisions of the Class C Certificates, the Class C Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class C
Cash Collateral Account and apply the same in accordance with the terms of
Section 3.6(d) of the Intercreditor Agreement, (b) no portion of such amount
shall be applied by the Borrower for any other purpose and (c) no portion of
such amount until so applied shall be commingled with other funds held by the
Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of
the Non-Extension Advance requested by this Notice of Borrowing, the Borrower
shall not be entitled to request any further Advances under the Liquidity
Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ___ day of , .
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By: ________________________________
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to CITIBANK, N.A. (the "Liquidity
Provider"), with reference to the Revolving Credit Agreement (2000-1C) dated
as of February 15, 2000, between the Borrower and the Liquidity Provider (the
"Liquidity Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used
for the funding of the Class C Cash Collateral Account in accordance
with Section 3.6(c) of the Intercreditor Agreement by reason of the
downgrading of the short-term unsecured debt rating of the Liquidity
Provider issued by either Rating Agency below the applicable
Threshold Rating, which Advance is requested to be made on
____________, _____.
(3) The amount of the Downgrade Advance requested hereby (i) is
$_______, which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Class C
Cash Collateral Account in accordance with Section 3.6(c) of the
Intercreditor Agreement, (ii) does not include any amount with
respect to the payment of the principal of, or premium on, the Class
C Certificates, or principal of, or interest or premium on the Class
G Certificates, (iii) was computed in accordance with the provisions
of the Class C Certificates, the Class C Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached
hereto as Schedule I), and (iv) has not been and is not the subject
of a prior or contemporaneous Notice of Borrowing under the
Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class C Cash Collateral Account and apply the same in accordance
with the terms of Section 3.6(c) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied
shall be commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of
the Liquidity Provider to make further Advances under the Liquidity Agreement;
and (B) following the making by the Liquidity Provider of the Downgrade
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
* * *
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ___ day of ______________, _____.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By: ________________________________
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to CITIBANK, N.A. (the "Liquidity
Provider"), with reference to the Revolving Credit Agreement (2000-1C) dated
as of February 15, 2000, between the Borrower and the Liquidity Provider (the
"Liquidity Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Final Advance by the Liquidity Provider to be used for
the funding of the Class C Cash Collateral Account in accordance
with Section 3.6(i) of the Intercreditor Agreement by reason of the
receipt by the Borrower of a Termination Notice from the Liquidity
Provider with respect to the Liquidity Agreement, which Advance is
requested to be made on ______________, ___.
(3) The amount of the Final Advance requested hereby (i) is
$__________, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the
Class C Cash Collateral Account in accordance with Section 3.6(i) of
the Intercreditor Agreement, (ii) does not include any amount with
respect to the payment of principal of, or premium on, the Class C
Certificates, or principal of, or interest or premium on the Class G
Certificates, (iii) was computed in accordance with the provisions
of the Class C Certificates, the Class C Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached
hereto as Schedule I), and (iv) has not been and is not the subject
of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class C Cash Collateral Account and apply the same in accordance
with the terms of Section 3.6(i) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied
shall be commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested
hereby be a Base Rate Advance [and that such Base Rate Advance be
converted into a LIBOR Advance on the third Business Day following
your receipt of this notice].*
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement; and
(B) following the making by the Liquidity Provider of the Final
______________
*Bracketed language is optional.
37
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
* * *
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ___ day of ____________, ___.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By: ________________________________
Name:
Title:
38
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
39
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: Revolving Credit Agreement dated as of February 15, 2000, between
Wilmington Trust Company, as Subordination Agent, as agent and
trustee for the American Trans Air Pass Through Trust, Series
2000-1C, as Borrower, and CITIBANK, N.A. (the "Liquidity
Agreement")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.1 of the
Liquidity Agreement, by reason of the occurrence of a Liquidity Event of
Default and the existence of a Performing Note Deficiency (each as defined
therein), we are giving this notice to you in order to cause (i) our
obligations to make Advances (as defined therein) under such Liquidity
Agreement to terminate on the fifth Business Day after the date on which you
receive this notice and (ii) you to request a Final Advance under the
Liquidity Agreement pursuant to Section 3.6(i) of the Intercreditor Agreement
(as defined in the Liquidity Agreement) as a consequence of your receipt of
this notice.
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE
LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
Very truly yours,
CITIBANK, N.A., as Liquidity Provider
By: _____________________________
Name:
Title:
cc: Wilmington Trust Company,
as Class C Trustee
40
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of February 15, 2000, between
Wilmington Trust Company, as Subordination Agent, as agent and trustee for the
American Trans Air Pass Through Trust, 2000-1C, as Borrower, and Citibank,
N.A. (the "Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
___________________________
(Name of Transferee)
__________________________
(Name of Transferee)
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower under
the Liquidity Agreement are transferred to the transferee and the transferee
shall hereafter have the sole rights and obligations as Borrower thereunder.
The undersigned shall pay any costs and expenses of such transfer, including,
but not limited to, transfer taxes or governmental charges.
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We ask that this transfer be effective as of _______________, ___.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By: ________________________________
Name:
Title:
