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DELAYED
INDEMNITY AGREEMENT
DATED AS OF MARCH 28, 0000
XXXXXXX
XXXXXXXXX X.X.X., XXX XXXX BRANCH
as Depositary
AMERICAN TRANS AIR, INC.
AND
AMTRAN, INC.
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TABLE OF CONTENTS
PAGE
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SECTION 1. INDEMNITY PAYMENTS..........................................................1
1.01 Indemnity Payments..........................................................1
1.02 Overdue Amounts. (a)........................................................2
1.03 Reduction of Notional Amounts...............................................2
1.04 Subsequent Index Period.....................................................3
1.05 Initial Index Rate..........................................................3
1.06 Replacement Drawing.........................................................3
1.07 Prepayment Drawing..........................................................3
SECTION 2. COLLATERAL ACCOUNT AND INVESTMENTS..........................................4
2.01 Collateral Account..........................................................4
2.02 Investment of Balance in Collateral Account.................................4
2.03 Pledge......................................................................4
2.04 Application and Termination.................................................4
2.05 No Duplication..............................................................5
SECTION 3. REPRESENTATIONS AND WARRANTIES..............................................5
SECTION 4. PAYMENTS, NO SETOFF.........................................................6
SECTION 5. INCREASED COSTS.............................................................6
SECTION 6. CAPITAL ADEQUACY............................................................7
SECTION 7. GUARANTEE...................................................................7
SECTION 8. BREAKAGE....................................................................9
SECTION 9. EXPENSES; INDEMNITY.........................................................9
SECTION 10. REMEDIES...................................................................10
SECTION 11. AMENDMENT, ETC.............................................................10
SECTION 12. NOTICES....................................................................10
SECTION 13. ENTIRE AGREEMENT...........................................................10
SECTION 14. GOVERNING LAW..............................................................11
SECTION 15. WAIVER OF JURY TRIAL RIGHT.................................................11
SECTION 16. COUNTERPARTS...............................................................11
SECTION 17. NO THIRD-PARTY BENEFICIARIES...............................................11
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DELAYED INDEMNITY AGREEMENT
DELAYED INDEMNITY AGREEMENT, dated as of March 28, 2002 (this
"Agreement") between INTESABCI S.P.A., New York Branch ("IntesaBci," and in its
capacity as depositary bank under the Delayed Deposit Agreements referred to
below, the "Depositary"), AMERICAN TRANS AIR, INC. ("ATA") and AMTRAN, INC. (the
"Guarantor" or "Amtran").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in connection with the financing of up to five aircraft to be
operated by ATA, Xxxxx Fargo Bank Northwest, N.A., as escrow agent (the "Escrow
Agent"), and the Depositary are entering into (a) the Delayed Deposit Agreement
(Class A), dated as of March 28, 2002 (the "Delayed Class A Deposit Agreement"),
and (b) the Delayed Deposit Agreement (Class B) dated as of March 28, 2002 (the
"Delayed Class B Deposit Agreement") (the Class A Deposit Agreement and the
Class B Deposit Agreement, collectively, the "Delayed Deposit Agreements"),
pursuant to which, among other things, (i) the Depositary will establish
accounts into and from which the Escrow Agent shall make deposits, requests,
withdrawals and re-deposits and (ii) the Depositary will pay the Escrow Agent a
fixed rate of interest on each Deposit;
WHEREAS, on the Delayed Funding Date, the Escrow Agent shall deposit (i)
$68,969,100.00 with the Depositary under the Delayed Class A Deposit Agreement
and (ii) $20,130,900.00 with the Depositary under the Delayed Class B Deposit
Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Depositary
to enter into the Delayed Deposit Agreements that ATA and the Guarantor enter
into this Delayed Indemnity Agreement.
NOW, THEREFORE, in consideration of the Depositary entering into the
Delayed Deposit Agreements and the mutual agreements herein contained and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows (capitalized terms not defined
herein shall have the meanings set forth in Annex A hereto or if not therein
defined, as defined in the Deposit Agreements):
SECTION 1. Indemnity Payments.
1.01 Indemnity Payments. ATA agrees to pay (each such payment, an
"Indemnity Payment"), to IntesaBci no later than 11:00 a.m. (New York City time)
on each February 20, May 20, August 20 and November 20 on which interest is due
under Section 2.2 of each Delayed Deposit Agreement and on the Final Withdrawal
Date (each such date, an "Indemnity Payment Date"):
(a) in the case of each Interest Payment Date occurring prior to
the Final Withdrawal Date, an amount equal to the excess, if any, of (i) the
aggregate amount of interest accrued on the Deposits in accordance with each
Delayed Deposit Agreement during the Relevant Period for, and due and payable
on, such Interest Payment Date over (ii) the sum of the Notional Earnings for
each Notional Amount during such Relevant Period;
(b) in the case of a Final Withdrawal Date which is not an Interest
Payment Date, an amount equal to the excess, if any, of (i) the aggregate amount
of interest accrued on the Deposits in accordance with each Delayed Deposit
Agreement during the Relevant Period for, and due and payable on, the Final
Withdrawal Date over (ii) the sum of the Notional Earnings on the amount of each
Notional Amount outstanding on the Final Withdrawal Date (prior to giving effect
to the Final Withdrawals under and as defined in each Delayed Deposit Agreement)
during such Relevant Period; and
(c) in the case of each Interest Payment Date occurring after the
Final Withdrawal Date or a Final Withdrawal Date occurring on an Interest
Payment Date, an amount equal to the excess, if any, of (i) the amount of
interest accrued on the Deposits in accordance with each Delayed Deposit
Agreement during the Relevant Period for, and due and payable on, such Interest
Payment Date over (ii) the sum of (x) the sum of the Notional Earnings for each
Notional Amount during such Relevant Period minus (y) unless the Final
Withdrawal Date is an Interest Payment Date, the amount, if any, described in
clause (b)(ii) above.
Not later than three (3) Business Days prior to each Indemnity Payment Date,
IntesaBci shall provide to ATA an estimate of the Indemnity Payment payable on
such Indemnity Payment Date in accordance with the immediately preceding
sentence. Not later than one Business Day prior to each Indemnity Payment Date,
IntesaBci shall provide ATA with an invoice specifying the Indemnity Payment
payable on such Indemnity Payment Date, which invoice shall be prima facie
evidence of ATA's obligation to pay such Indemnity Payment. For avoidance of
doubt, ATA shall not be obligated to pay any Indemnity Payment to the extent
IntesaBci, as Depositary, has not paid interest on the Deposits or any other
amount payable by it in accordance with the terms of the Delayed Deposit
Agreements.
1.02 Overdue Amounts. (a) ATA agrees to pay to IntesaBci interest on any
amount that shall not be paid by ATA when due under this Agreement (an "Overdue
Amount") at the Base Rate plus 2%. Such interest shall be payable on demand and
accrue on the portion of such overdue amount remaining unpaid from time to time,
from (and, including) the date that such amount is not paid when due to (but
excluding) the date when such overdue amount is paid in full, and shall be
payable upon demand from time to time by IntesaBci.
(b) Without limiting the generality of the foregoing, overdue
interest accrued under Section 1.02(a) because amounts are on deposit in the
Collateral Account which IntesaBci would be entitled to withdraw and apply in
accordance with Section 2.03 hereof, but which IntesaBci cannot so withdraw and
apply due to the operation of the "automatic stay" provisions of the United
States Bankruptcy Code, shall be deemed Overdue Amounts from and including the
date as of which such provisions are in effect to but excluding the date on
which IntesaBci is permitted to apply and withdraw them.
1.03 Reduction of Notional Amounts. If one or more Deposits are
withdrawn on any day in accordance with the Delayed Deposit Agreements, the
Notional Amounts shall be deemed to be reduced by an amount equal to the excess
of (i) the aggregate amount of the Deposits withdrawn on such day over (ii) the
aggregate amount redeposited with the Depositary on such day under each Delayed
Deposit Agreement; provided that the Notional Amounts shall be deemed to be
increased by the aggregate amount redeposited with the Depositary under such
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Delayed Deposit Agreement. Such reduction shall be applied to the Notional
Amounts in the same order that the Index Period for each Notional Amount
terminates (i.e., the reduction shall be applied first to the Notional Amount
which shall then have an Index Period ending on or closest to the applicable day
of withdrawal); provided that if the last day of the Index Period for two or
more Notional Amounts shall be the same, then the reduction applied to such
Notional Amounts shall be applied in inverse order to the Notional Amounts
deemed reduced as a result of the relevant Deposit or Deposits withdrawal (pro
rata as appropriate).
1.04 Subsequent Index Period. No later than one (1) Business Day prior
to the end of the Initial Index Period, and each Subsequent Index Period, or
during any Floating Index Period, for any Notional Amount, ATA may, by written
notice to IntesaBci, select an additional period (each, a "Subsequent Index
Period") for such Notional Amount not to extend beyond March 17, 2003 in each
instance; provided that if ATA shall not select a Subsequent Index Period for
such Notional Amount by 2:00 p.m. (New York City time) on such Business Day, ATA
shall have deemed to have selected a Subsequent Index Period for such Notional
Amount from and including the last day of the Initial Index Period or the
immediately preceding Subsequent Index Period (as the case may be) to but
excluding the next Business Day thereafter. Upon the selection (or deemed
selection) of a Subsequent Index Period for a Notional Amount, IntesaBci shall
promptly determine and then provide written notice to ATA of the Index Rate for
such Subsequent Index Period for such Notional Amount. The Index Rate for any
one day Subsequent Index Period shall be the Federal Funds Index Rate for such
day (as determined by IntesaBci). The Index Rate for any Subsequent Index Period
(other than for one day) shall be an interest rate per annum determined by
IntesaBci in the same manner as the indicative interest rates per annum of
Initial Period (other than for one day) heretofore provided to ATA by IntesaBci
were determined, which determination shall be prima facie evidence of the amount
thereof.
1.05 Initial Index Rate. Promptly following its determination thereof,
the Depositary shall notify ATA of the Initial Index Rate for each Notional
Amount.
1.06 Replacement Drawing. In the event of a Replacement Drawing, ATA
shall pay to the Depositary no later than 11:00 a.m. (New York City time) on:
(a) if accrued interest on the drawn Deposits is payable on the
date of the Replacement Drawing (the "Replacement Drawing Date") or, otherwise,
the succeeding Interest Payment Date the excess, if any, of (x) the aggregate
amount of interest accrued on the Deposits in accordance with each Deposit
Agreement during the Relevant Period for, and required to be paid on the
Replacement Drawing Date or such Interest Payment Date over (y) the sum of the
Notional Earnings on the amount of each Notional Amount outstanding on the
Replacement Drawing Date (prior to giving effect to the Replacement Drawing
effected on such date) during such Relevant Period; and
(b) the Replacement Drawing Date, subject to the last sentence of
Section 9 hereof, any breakage costs described in Section 8 hereof.
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1.07 Prepayment Drawing. In the event of a Prepayment Drawing is respect
of any Deposit, ATA shall pay to the Depositary no later than 11:00 a.m. (New
York City time) on the date of such drawing:
(a) the excess, if any, of (x) the aggregate amount of interest
accrued on such Deposit in accordance with each Deposit Agreement during the
Relevant Period for, and required to be paid on the such date over (y) the sum
of the Notional Earnings on the amount of each Notional Amount outstanding in
respect of such Deposit accrued through such date (prior to giving effect to the
Prepayment Drawing effected on such date) during such Relevant Period; and
(b) subject to the last sentence of Section 9 hereof, any breakage
costs described in Section 8 hereof.
SECTION 2. Collateral Account and Investments.
2.01 Collateral Account. There is hereby established with IntesaBci a
collateral account (the "Collateral Account") in the name and under the control
of IntesaBci into which ATA shall deposit cash from time to time in accordance
with the provisions of Section 2 hereof. The balance from time to time in the
Collateral Account shall be subject to withdrawal only as provided herein.
2.02 Investment of Balance in Collateral Account. Amounts on deposit in
the Collateral Account shall be invested from time to time in Permitted
Investments. Such Permitted Investments shall be held in the name and be under
the control of IntesaBci. All Investment Earnings in respect of investments of
amounts in the Collateral Account shall be credited to the Collateral Account
and constitute a portion of the Pledged Security. IntesaBci agrees that the
Permitted Investments shall earn interest from time to time at the LIBID Rate.
2.03 Pledge. As collateral security for the prompt payment in full when
due of ATA's obligations under this Agreement and the Delayed Indemnity
Agreement (the "Secured Obligations"), ATA hereby pledges and grants to
IntesaBci a security interest in all of ATA's right, title and interest in and
to the Collateral Account, all Permitted Investments made with amounts standing
to the credit of the Collateral Account, all Investment Earnings thereon and all
other monies, earnings and investments standing to the credit thereof
(collectively, the "Pledge Security"). If at any time ATA shall fail to pay any
Secured Obligation when due, IntesaBci may (in its sole discretion) (i)
liquidate any investments made in respect of amounts deposited in the Collateral
Account and (ii) apply or cause to be applied the balance from time to time
outstanding to the credit of the Collateral Account to the payment of such
Secured Obligation.
2.04 Application and Termination. (a) On each Indemnity Payment Date, an
amount in the Collateral Account equal to the Indemnity Payment payable on such
date shall be applied to ATA's obligations, if any, to make such Indemnity
Payment on such Indemnity Payment Date.
(b) Upon the later of (i) the later of (x) the date on which all of
the Deposits shall have been withdrawn and paid (or shall be required to be
withdrawn and paid) as provided in the Delayed Deposit Agreements without any
redeposit and (y) the date on which all accrued and unpaid interest on the
Deposits shall have been paid (or shall have become due and payable)
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as provided in the Delayed Deposit Agreements (the later of clauses (x) and (y)
being referred to as the "Deposit Agreement Termination Date") and (ii) the
payment in full of all Secured Obligations due and payable on or prior to the
Deposit Agreement Termination Date (the "Termination Date"), IntesBci shall
forthwith pay all amounts in the Collateral Account, together with any
unreleased Investment Earnings thereon, to ATA.
2.05 No Duplication. The obligations of ATA under Section 2.01 hereof
and the obligations of IntesaBci under Section 2.02 shall be without duplication
of their respective commensurate obligations under the Indemnity Agreement.
SECTION 3. Representations and Warranties. (a) ATA represents and
warrants to IntesaBci on the date hereof and on the Delayed Funding Date that:
(i) ATA is duly incorporated, validly existing and in good
standing under the laws of the State of Indiana and has the full
corporate power, authority and legal right under the laws of the State of
Indiana to execute and deliver this Agreement and to carry out the
obligations of ATA under this Agreement;
(ii) the execution and delivery by ATA of this Agreement and the
performance by ATA of its obligations under this Agreement have been duly
authorized by ATA and will not violate its Articles of Incorporation or
by-laws, any law, rule or regulation binding on ATA or the provisions of
any indenture, mortgage, contract or other agreement to which it is a
party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid and binding
obligation of ATA, enforceable against it in accordance with its terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity.
(b) Amtran represents and warrants to IntesaBci that:
(i) Amtran is duly incorporated, validly existing and in good
standing under the laws of the State of Indiana and has the full
corporate power, authority and legal right under the laws of the State of
Indiana to execute and deliver this Agreement and to carry out the
obligations of Amtran under this Agreement;
(ii) the execution and delivery by Amtran of this Agreement and
the performance by Amtran of its obligations under this Agreement have
been duly authorized by Amtran and will not violate its Articles of
Incorporation or by-laws, any law, rule or regulation binding on Amtran
or the provisions of any indenture, mortgage, contract or other agreement
to which it is a party or by which it is bound;
(iii) this Agreement constitutes the legal, valid and binding
obligation of Amtran, enforceable against it in accordance with its
terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of equity,
whether considered in a proceeding at law or in equity;
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(iv) except as set forth in Amtran's most recent Annual Report on
Form 10-K as amended, filed by Amtran with the SEC on or prior to the
date hereof, or in any Quarterly Report on Form 10-Q or Current Report on
Form 8-K filed by Amtran with the SEC subsequent to such Form 10-K and on
or prior to the date hereof, no action, claim or proceeding is now
pending or, to the Actual Knowledge of Amtran, threatened, against
Amtran, before any court, governmental body, arbitration board, tribunal
or administrative agency, which is reasonably likely to be determined
adversely to Amtran and if determined adversely to Amtran would result in
a Material Adverse Change; and
(v) the audited consolidated balance sheet of Amtran with
respect to Amtran's most recent fiscal year included in Amtran's most
recent Annual Report on Form 10-K, as amended, filed by Amtran with the
SEC, and the related consolidated statements of operations and cash flows
for the period then ended have been prepared in accordance with GAAP and
fairly present in all material respects the financial condition of Amtran
and its consolidated subsidiaries as of such date and the results of its
operations and cash flows for such period, and since the date of such
balance sheet there has been no material adverse change in such financial
condition or operations of Amtran, except for matters disclosed in (a)
the financial statements or Annual Report on Form 10-K referred to above
or (b) any subsequent Quarterly Report on Form 10-Q or Current Report on
Form 8-K filed by Amtran with the SEC on or prior to the date hereof.
SECTION 4. Payments, No Setoff. All amounts (including, without
limitation, those payments made in respect of Taxes (as defined and provided for
below)) payable by ATA to IntesaBci hereunder shall be paid in U.S. Dollars in
immediately available funds, to the account of IntesaBci at: IntesaBci S.p.A.,
New York Branch, One Xxxxxxxx Street, ABA#000000000, Account No. 12210330049,
Reference: ATA Pass Through Trust 2002-l Deposit Indemnity or as IntesaBci may
direct from time to time in writing to ATA. All amounts payable hereunder shall
be made free and clear of, and without reduction for, or on account of, any and
all taxes, levies or other impositions or charges ("Taxes"), other than taxes
based on or measured by gross or net income, gross or net receipts, net worth,
capital, franchise taxes or similar doing business taxes.
SECTION 5. Increased Costs. In the event that any change in law or
governmental rule, regulation or order, or in the interpretation, administration
or application thereof (including the adoption of any new law or governmental
rule, regulation or order), or any determination of a court or by any central
bank or Government Entity, in each case that becomes effective after the date
hereof, or compliance by IntesaBci (at its applicable lending office) with any
guideline, request or directive issued or made after the date hereof by any such
central bank or Government Entity (whether or not having the force of law):
(i) subjects IntesaBci (or its applicable lending office) to any
additional Tax (other than taxes excluded under Section 4 above) with
respect to its obligations, commitments or extensions of credit
hereunder, or under any of the Delayed Deposit Agreements or any payments
to IntesaBci (or its applicable lending office) of any Indemnity Payment,
interest, fees or any other amount payable under or in respect to this
Agreement or any of the Delayed Deposit Agreements; or
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(ii) imposes, modifies or holds applicable any reserve (including
any marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits in or for the account of, or advances or
loans by, or other credit extended by, IntesaBci;
-and the result of any of the foregoing is that IntesaBci shall incur increased
costs which are attributable to this Agreement or the Delayed Deposit Agreements
or to reduce any amount received or receivable by IntesaBci (or its applicable
lending office) with respect to this Agreement; then, in any such case, ATA
shall pay to IntesaBci, within five Business Days after receipt of the statement
referred to in the next sentence, such additional amount or amounts as may be
necessary to compensate IntesaBci for any such increased cost or reduction in
amounts received or receivable hereunder. IntesaBci, promptly after the
occurrence of such event, shall deliver to ATA a written statement, setting
forth in reasonable detail the basis for calculating the additional amounts owed
to IntesaBci under this Section 5, which statement shall be prima facie evidence
of ATA's obligation to pay such additional amounts.
SECTION 6. Capital Adequacy. If the adoption after the date hereof of any
applicable law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change after the date hereof in any existing interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or the
promulgation after the date hereof of any guidelines, request or directive
regarding capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of IntesaBci or any
corporation controlling IntesaBci as a consequence of IntesaBci's commitments,
obligations or extensions of credit hereunder or under the Delayed Deposit
Agreements to a level below that which IntesaBci or such controlling corporation
could have achieved but for such adoption, change or promulgation (taking into
consideration the policies of IntesaBci or such controlling corporation with
regard to capital adequacy), then from time to time, within five Business Days
after receipt by ATA from IntesaBci of the statement referred to in the next
sentence, ATA shall pay to IntesaBci such additional amount or amounts as will
compensate IntesaBci or such controlling corporation on an after-tax basis for
such reduction. IntesaBci shall deliver to ATA a written statement, setting
forth in reasonable detail the basis of the calculation of such additional
amounts, which statement shall be prima facie evidence of ATA's obligation to
pay such additional amounts.
SECTION 7. Guarantee. (a) The Guarantor hereby guarantees to the
Depositary the prompt payment in full when due of all amounts payable by ATA
hereunder strictly in accordance with the terms hereof (such obligations being
herein collectively called the "Obligations"). This is a guarantee of payment,
not of collection. Accordingly, the Guarantor hereby further agrees that if ATA
shall fail to pay in full when due (whether at stated maturity, by acceleration
or otherwise) any of the Obligations, the Guarantor will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
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(b) The obligations of the Guarantor under Section 7(a) are
irrevocable, absolute and unconditional irrespective of the value, genuineness,
validity, regularity or enforceability of the obligations of ATA under this
Agreement or any other agreement or instrument referred to herein or therein, or
any substitution, release or exchange of any other guarantee of or security for
any of the Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 7(b) that the obligations of the Guarantor
hereunder shall be irrevocable, absolute and unconditional under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Guarantor hereunder, which shall remain irrevocable,
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantor, the time for any performance of or compliance with any of the
Obligations shall be extended, or such performance or compliance shall be
waived, or such Obligations shall be increased;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein or
therein shall be done or omitted;
(iii) the maturity of any of the Obligations shall be accelerated,
or any of the Obligations shall be modified, supplemented or amended in
any respect, or any right under this Agreement or any other agreement or
instrument referred to herein or therein shall be waived or any other
guarantee of any of the Obligations or any security therefor shall be
released or exchanged in whole or in part or otherwise dealt with;
(iv) the dissolution, merger, consolidation, sale of all or
substantially all of the assets or other corporate reorganization of ATA;
or
(v) any lien or security interest granted to, or in favor of,
the Depositary as security for any of the Obligations shall be released
or fail to be perfected.
(c) The Guarantor hereby expressly waives diligence, presentment,
demand of payment, notice of acceptance hereof, notice of the incurrence of any
Obligation, protest and all notices whatsoever, and any requirement that the
Depositary pursue or exhaust any right, power or remedy or otherwise proceed
against ATA under this Agreement or any other agreement or instrument referred
to herein or therein, or against any other Person under any other guarantee of,
or security for, any of the Obligations.
(d) The obligations of the Guarantor under this Section 7 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of ATA in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise and the
Guarantor agrees that it will indemnify the Depositary on demand for all
reasonable costs and expenses (including, without limitation, fees of counsel)
incurred by the Depositary prior to payment in full of their respective claims
by the Guarantor in connection with such rescission or restoration, including
any such costs and expenses incurred in defending
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against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any applicable law.
(e) ATA hereby acknowledges and confirms that it has an unqualified
obligation to reimburse the Guarantor for the full amount of the Obligations
hereby guaranteed by the Guarantor and paid or otherwise satisfied by the
Guarantor. The Guarantor hereby agrees that until the payment and satisfaction
in full of all Obligations, the Depositary shall be entitled to prove against
the estate of ATA in connection with any bankruptcy, insolvency, reorganization,
rearrangement or winding up proceedings in respect of the whole of the
Obligations (including any amount on account thereof theretofore paid by the
Guarantor pursuant to the aforesaid guarantee), and the Guarantor shall have no
right to be subrogated to Depositary in respect of such proof until the
Depositary shall have received from such estate payment in full of their
respective claims with interest; nor shall the Guarantor purport to exercise any
right or remedy arising by reason of any performance by it of its obligation in
8(a) whether by subrogation or otherwise, against ATA or any other guarantor of
any of the Obligations or any security for any of the Obligations until the
Depositary shall have received payment in full of their respective claims with
interest.
(f) The Guarantor agrees that, as between it and the Depositary,
its obligations under this Section 7 may be declared to be forthwith due and
payable as provided in Section 2 for purposes of Section 7(a) notwithstanding
any stay, injunction or other prohibition preventing such declaration (or such
obligations from becoming automatically due and payable) as against ATA and
that, in the event of such declaration (or such obligations being deemed to have
become automatically due and payable), such obligations (whether or not due and
payable by the Borrower) shall forthwith become due and payable by the Guarantor
for purposes of Section 7(a).
(g) The obligations in this Section 7 are continuing, and shall
apply to all Obligations whenever arising.
SECTION 8. Breakage. If (x) any Notional Amount is reduced or increased
other than during a Floating Index Period therefor or on the last day of the
Index Period therefor (including by virtue of a Replacement Drawing or a
Prepayment Drawing), (y) any withdrawal is cancelled with respect to which a
notice has been delivered to the Depositary pursuant to Section 2.3(a) of any
Deposit Agreement less than one Business Day prior to the scheduled date of such
withdrawal (unless the Index Rate for such date is the Federal Funds Index Rate)
or (z) any investment of amounts in the Collateral Account is liquidated prior
to the maturity date therefor (each, a "Breakage Event"), then ATA shall
compensate IntesaBci for any loss, cost or expense (including, without
limitation, any cost of funding or loss incurred as a result of terminating,
liquidating, obtaining or re-establishing any hedge or related trading position)
incurred by IntesaBci in connection with such Breakage Event. A certificate of
IntesaBci setting forth in reasonable detail any amount or amounts that
IntesaBci is entitled to receive pursuant to this Section 8 shall be delivered
to ATA and shall be prima facie evidence of ATA's obligation to pay such amount
or amounts. ATA shall pay IntesaBci the amount shown as due on any such
certificate within five Business Days after receipt thereof.
9
SECTION 9. Expenses; Indemnity. (a) ATA shall pay all reasonable
out-of-pocket expenses incurred by IntesaBci, including the reasonable fees,
charges and disbursements of special New York and Italian counsel for IntesaBci,
in connection with the preparation of this Agreement, the Delayed Deposit
Agreements or any amendments, modifications or waivers of the provisions hereof
or thereof.
(b) The provisions of Section 9.1 of the Leased Aircraft
Participation Agreement attached as Exhibit A-l to the Note Purchase
Agreement, together with related definitions and ancillary provisions,
are hereby incorporated herein by reference, as if set forth herein in
full, mutatis mutandis; provided that as incorporated herein, (i) each
reference therein to "this Agreement" shall be deemed to be a reference
to this Agreement, (ii) each reference therein to "Indemnitee" shall be
deemed to be a reference to IntesaBci (in its capacity as Depositary)
together with its affiliates, directors, officers, employees, agents,
successors and assigns, (iii) each reference therein to "Lessee" shall be
deemed to be reference to ATA, (iv) each reference therein to "Section
9.1", or any subsection of "Section 9.1", shall be deemed to be a
reference to this Section 9(b) or applicable subsection, (v) each
reference therein to "Operative Agreements" shall be deemed to be a
reference to the "Operative Agreements" under each of the Participation
Agreements, (vi) each reference therein to "Aircraft" shall be deemed to
be a reference to the "Aircraft" under each of the Participation
Agreements and (vii) the term "Pass Through Agreements" shall be deemed
to include this Agreement.
(c) All amounts due under this Section 9 shall be paid no later
than five Business Days after written demand therefor.
SECTION 10. Remedies. Upon the breach by ATA of any of its obligations
under this Agreement, IntesaBci may exercise any right or remedy that may be
available to it under applicable law. ATA agrees to indemnify and hold harmless
IntesaBci for any reasonable cost or expense incurred by it in connection with,
or arising out of, the enforcement by IntesaBci of this Agreement against ATA.
SECTION 11. Amendment, Etc. This Agreement may not be amended, waived or
otherwise modified except by an instrument in writing signed by the party
against whom the amendment, waiver or other modification is sought to be
enforced.
SECTION 12. Notices. Unless otherwise expressly provided herein, any
notice or other communication under this Agreement shall be in writing
(including by facsimile) and shall be deemed to be given and effective upon
receipt thereof. All notices shall be sent to (x) in the case of IntesaBci,
IntesaBci S.p.A. , New York Branch, Xxx Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Transportation Finance Group (Telecopier: (000) 000-0000), (y)
in the case of ATA, American Trans Air, Inc., 0000 Xxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000-0000, Attention: Xxxxxxx X. Xxxxx (Telecopier: (317)
240-7091) or (z) in the case of Amtran, Amtran, Inc., 0000 Xxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, XX 00000-0000 , Attention: Xxxxxxx X. Xxxxx (Telecopier:
(000) 000-0000) (or at such other address as a party may specify from time to
time in a written notice to the other parties). On or prior to the execution of
this Agreement, ATA has delivered to IntesaBci a certificate containing specimen
signatures of the representatives of ATA who are authorized to give notices and
instructions with respect to this
10
Agreement. IntesaBci may conclusively rely on such certificate until IntesaBci
receives written notice from ATA to the contrary.
SECTION 13. Entire Agreement. This Agreement (including all attachments
hereto) sets forth all of the promises, covenants, agreements, conditions and
understandings between IntesaBci and ATA with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and undertakings,
inducements and conditions, express or implied, oral or written.
SECTION 14. Governing Law. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS
OF INTESABCI AND ATA HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. Waiver Of Jury Trial Right. EACH OF INTESABCI AND ATA
ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL
BY JURY.
SECTION 16. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
SECTION 17. No Third-Party Beneficiaries. This Agreement is not intended
to, and shall not, provide any person not a party hereto with any rights of any
nature whatsoever against any of the parties hereto and no person not a party
hereto shall have any right, power or privilege in respect of any party hereto,
or have any benefit or interest, arising out of this Agreement.
11
IN WITNESS WHEREOF, IntesaBci, Amtran and ATA have caused this Indemnity
Agreement to be duly executed as of the day and year first above written.
INTESABCI S.P.A., NEW YORK BRANCH
as Depositary
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
AMERICAN TRANS AIR, INC.
By:
--------------------------------
Name:
Title:
AMTRAN, INC.
By:
--------------------------------
Name:
Title:
12
SCHEDULE I
---------------------------------------------------------------------------------------------------
Expected Manufacturer's Aircraft
Aircraft Type Registration Number Serial Number Delivery Month
------------- ------------------- ------------- --------------
---------------------------------------------------------------------------------------------------
Boeing 737-800 N327TZ 32610 November 2002
---------------------------------------------------------------------------------------------------
Boeing 737-800 N328TZ 32611 November 2002
---------------------------------------------------------------------------------------------------
Boeing 737-800 N329TZ 32882 December 2002
---------------------------------------------------------------------------------------------------
SCHEDULE II
------------------------------------------------------------------------------------------------------
Notional Amount Initial Index Period Initial Index Rate*
--------------- -------------------- -------------------
------------------------------------------------------------------------------------------------------
$29,700,000.00 [.............. ] - [.............. ] [.............. ]%
------------------------------------------------------------------------------------------------------
$29,700,000.00 [.............. ] - [.............. ] [.............. ]%
------------------------------------------------------------------------------------------------------
$29,700,000.00 [.............. ] - [.............. ] [.............. ]%
------------------------------------------------------------------------------------------------------
* LIBOR minus 27.5 basis points as determined by the Depositary, which
determination shall be conclusive, absent manifest error.
ANNEX A
DEFINITIONS
"Actual Knowledge" means as it applies to ATA, actual knowledge of a Vice
President or more senior officer of ATA having responsibility for the
transactions contemplated by the Indemnity Agreement; provided that ATA shall be
deemed to have "Actual Knowledge" of any matter as to which it has received
notice from IntesaBci, such notice having been given pursuant to Section 12.
"Aircraft" means each of the aircraft listed on Schedule I hereto.
"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 the higher of
(i) (a) the Federal Funds Effective Rate, plus (b) one-half of one percent (1/2
of 1%) (calculated on the basis of a 360 day year) and (ii) the floating
commercial loan rate per annum of IntesaBci (which rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged to any
customer by IntesaBci) announced from time to time as its prime rate or
equivalent for dollar loans in the USA, changing as and when said rate changes
(calculated on the basis of a 365/366 day year).
"Breakage Event" shall have the meaning set forth in Section 8.
"Business Day" means any day, other than a Saturday or a Sunday, on which
(x) commercial banks settle payments in New York and, (y) for the purpose of
determining any Index Period, U.S. Dollar transactions are affected in London,
England.
"Collateral Account" shall have the meaning set forth in Section 2.01.
"Deposit Agreement Termination Date" shall have the meaning set forth in
Section 2.04(b).
"Equipment Notes" has the meaning attributable thereto in the Note
Purchase Agreement.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next l/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not published
for any day that is a Business Day, the average (rounded upwards, if necessary,
to the next l/100 of 1%) of the quotations for such day for such transactions
received by IntesaBci from three Federal funds brokers of recognized standing
selected by IntesaBci.
"Federal Funds Index Rate" shall mean, for any day of determination, the
Federal Funds Effective Rate for such day minus 1/8% per annum.
"Final Withdrawal Date" means the date on which all of the Deposits are
withdrawn and no redeposits are made under the Delayed Deposit Agreement.
"Floating Index Period" means, with respect to any Notional Amount, the
period from and including the last day of the Initial Index Period therefor to
but excluding the earlier of (x) the date such Notional Amount is withdrawn
pursuant to the Delayed Deposit Agreements and (y) the first day of any
Subsequent Index Period therefor.
"Government Entity" means (a) any federal, state, provincial or similar
government, and any body, board, department, commission, court, tribunal,
authority, agency or other instrumentality of any such government or otherwise
exercising any executive, legislative, judicial, administrative or regulatory
functions of such government or (b) any other government entity having
jurisdiction over any matter contemplated by this Agreement or relating to the
observance or performance of the obligations of any of the parties to this
Agreement.
"Indemnity Agreement" means the Indemnity Agreement dated as of the date
hereof among the parties hereto.
"Indemnity Payment" shall have the meaning set forth in Section 1.01.
"Indemnity Payment Date" shall have the meaning set forth in Section
1.01.
"Index Period" means, with respect to any Notional Amount, the Initial
Index Period, the Floating Index Period and each Subsequent Index Period
therefor.
"Index Rate" means, with respect to any Notional Amount, (i) during the
Initial Index Period therefor, a rate per annum determined in the manner
specified in the footnote to "Initial Index Rate" on Schedule II and during a
Floating Index Period therefor, a rate per annum equal to the Federal Funds
Index Rate, and (ii) during each Subsequent Index Period therefor, the rate per
annum for such Subsequent Index Period determined in accordance with Section
1.04 hereof.
"Initial Index Period" means, with respect to each Notional Amount, the
period set forth opposite such Notional Amount under the heading "Initial Index
Period" on Schedule II hereto; provided that if the last day of such period is
stated to fall on a day that is not a Business Day, the last day of such period
shall be extended to fall on the next subsequent day that is a Business Day.
"Interest Payment Date" shall have the meaning given such term in the
Delayed Deposit Agreements.
"Investment Earnings" on any amount, means investment earnings on such
amount net of losses and investment expenses reasonably incurred by IntesaBci in
making or liquidating such investments.
"Law" means (a) any constitution, treaty, statute, law, decree,
regulation, order, rule or directive of any Government Entity and (b) any
judicial or administrative interpretation or application of, or decision under,
any of the foregoing.
"Leased Aircraft Participation Agreement" shall have the meaning set
forth in the Note Purchase Agreement.
2
"LIBID Rate" means, for any period between Interest Payment Dates, a rate
per annum (calculated on the basis of a 360-day year and actual days elapsed)
equal to (x) the rate determined by reference to Telerate Page 3750 as of 11:00
A.M. (London time), on the date two London business days prior to the first day
of such period minus (y) 12.5 basis points.
"LIBOR" means, with respect to each Notional Amount, a rate per annum
(calculated on the basis of a 360-day year and actual days elapsed) equal to the
rate determined by reference to Telerate Page 3750 as of 11:00 A.M. (London
time)) two London business days prior to the Delayed Funding Date for a period
comparable to the Initial Index Period for such Notional Amount. If there shall
be no rate showing for any such Initial Index Period, the Depositary shall
calculate the LIBOR rate for such Initial Index Period using standard
interpolation methodology by reference to the rates specified for the periods
that are next shorter and longer than such Initial Index Period.
"Material Adverse Change" means, with respect to any Person, any event,
condition or circumstance that materially and adversely affects such person's
business or consolidated financial condition, or its ability to observe or
perform its obligations, liabilities and agreements under this Agreement.
"Note Purchase Agreement" means the Note Purchase Agreement dated as of
the date hereof among ATA, Wilmington Trust Company, as Pass Through Trustee
under each of the Pass Through Trust Agreements referred to therein, Wilmington
Trust Company, as Subordination Agent, Xxxxx Fargo Bank Northwest, N.A., as
Escrow Agent, and Wilmington Trust Company, as Paying Agent.
"Notice of Final Withdrawal" shall have the meaning set forth in the
Delayed Deposit Agreements.
"Notice of Purchase Withdrawal" shall have the meaning set forth in the
Delayed Deposit Agreements.
"Notional Amounts" means each of the amounts set forth under the heading
"Notional Amounts" on Schedule II hereto as the same may be reduced from time to
time in accordance with Section 1.03.
"Notional Earnings" means, with respect to any Relevant Period and each
Notional Amount, the sum of the Index Rate per annum on such Notional Amount for
each day during such Relevant Period. The Notional Earnings shall be calculated
on the basis of a year of 360 days and actual days elapsed.
"Participation Agreement" means each Participation Agreement entered into
in connection with the financing of each Aircraft (or a Substitute Aircraft in
respect thereof).
"Permitted Investments" means London interbank U.S. Dollar deposits with
London banks (or London branches of banks, including IntesaBci's London branch)
selected by IntesaBci maturing on or about each Interest Payment Date.
3
"Prepayment Drawing" means a withdrawal of one or more deposits pursuant
to a Prepayment Withdrawal.
"Prepayment Drawing Date" means the date of the Prepayment Drawing.
"Relevant Date" means (i) in the case of the first Interest Payment Date,
a Final Withdrawal Date, a Prepayment Drawing Date or a Replacement Drawing Date
occurring prior to the first Interest Payment Date, the date of the Indemnity
Agreement and (ii) in the case of any other Interest Payment Date, Final
Withdrawal Date, Prepayment Drawing Date or Replacement Drawing Date, the
Interest Payment Date immediately preceding such Interest Payment Date, Final
Withdrawal Date, Prepayment Drawing Date or Replacement Drawing Date (as the
case may be).
"Relevant Period" means, with respect to any Interest Payment Date, Final
Withdrawal Date, Prepayment Drawing Date or Replacement Drawing Date, the period
from and including the Relevant Date for such Interest Payment Date, Final
Withdrawal Date, Prepayment Drawing Date or Replacement Drawing Date, as the
case may be, up to but excluding such Interest Payment Date, Final Withdrawal
Date, Prepayment Drawing Date or Replacement Drawing Date (as the case may be).
"Replacement Drawing" means a withdrawal of the Deposits pursuant to a
Replacement Withdrawal.
"Replacement Drawing Date" shall have the meaning set forth in Section
1.06(a).
"SEC" means the Securities and Exchange Commission of the United States,
or any Government Entity succeeding to its functions.
"Secured Obligations" shall have the meaning set forth in Section 2.03.
"Subsequent Index Period" with respect to each Notional Amount, shall
have the meaning set forth in Section 1.04.
"Substitute Aircraft" means any aircraft substituted for an Aircraft (or
any other Aircraft with respect to such Aircraft) in accordance with (i) the
Aircraft Purchase Agreement (as defined in the Note Purchase Agreement) upon a
total loss of such Aircraft prior to the delivery thereof or (ii) Section 1(g)
of the Note Purchase Agreement.
4
