Exhibit 10.14


 


EXECUTION VERSION


 


FIRST AMENDMENT AND WAIVER


 


FIRST
AMENDMENT AND WAIVER, dated as of December 10, 2007 (this “First Amendment
and Waiver”), to the Term Loan Agreement, dated as of August 14, 2007
(the “Term Loan Agreement”), among New ATA Acquisition Inc., a Delaware
corporation (the “Company”), the several lenders from time to time
parties thereto (the “Lenders”), Jefferies Finance LLC, as documentation
agent, and JPMorgan Chase Bank, N.A., as administrative agent for the Lenders
thereunder (in such capacity, the “Administrative Agent”).


 


W  I  T  N  E  S  S
E  T  H:


 


WHEREAS,
the Company, the Lenders and the Administrative Agent are parties to the Term
Loan Agreement;


 


WHEREAS,
the Company has requested that the Lenders amend and waive certain terms in the
Term Loan Agreement in the manner provided for herein; and


 


WHEREAS,
the Administrative Agent and the Lenders party hereto are willing to agree to
the requested amendment and waiver subject to the provisions of this First
Amendment and Waiver;


 


NOW,
THEREFORE, in consideration of the premises contained herein, the parties hereto
agree as follows:


 


1.     Defined Terms.     Unless otherwise defined herein, terms
which are defined in the Term Loan Agreement and used herein as defined terms
are so used as so defined.


 


2.     Amendment to Section 5.2(d).   Section 5.2(d) of the Term Loan
Agreement is hereby amended by deleting such Section 5.2(d) in its
entirety and substituting in lieu thereof the following:


 


“(d) unless available pursuant to public filings, concurrently
with the delivery of the financial statements referred to in Sections 5.1(a) and
5.1(b), a narrative discussion and analysis of the financial condition and
results of operations of the Company and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the then-current fiscal year
to the end of such fiscal quarter, as compared to the comparable periods of the
previous year; provided that such narrative discussion and analysis with
respect to such periods ending September 30, 2007, shall not be required
to be so furnished until the delivery of a Preliminary OM covering the fiscal quarter
ending September 30, 2007, pursuant to Section 5.9(c);


 


3.     Amendment to Section 5.9(a).    (a) Subclause (x) of Section 5.9(a) of
the Term Loan Agreement is hereby amended by deleting such subclause (x) in
its entirety and substituting in lieu thereof the following:


 


“(x) after
a reasonable marketing period (including a road show) that does not commence until
the delivery of a Preliminary OM pursuant to Section 5.9(c) and”


 


(b) Subclause
(y) of Section 5.9(a) of the Term Loan Agreement is hereby
amended by deleting the word “twice” appearing therein and substituting, in
lieu thereof, the words “four times, but in no event earlier than January 2,
2008”.


 

















 


4.     Amendment to Section 5.9(c).    Section 5.9(c) of the Term Loan
Agreement is hereby amended by deleting such Section 5.9(c) in its
entirety and substituting in lieu thereof the following:


 


“(c) No later than 15 days (or such longer period, not to exceed
30 days, as is determined by the Administrative Agent to be reasonably
necessary) after delivery by the Administrative Agent of a Securities Demand,
the Company will deliver (and, if applicable, cause Holdings to deliver)
preliminary offering memoranda or preliminary prospectuses and other marketing materials
relating to the Senior ATA Notes usable in a customary high-yield road show
(with the industry section being written by Seabury Group or any other airline
industry expert having similar qualifications), which shall be reasonably
satisfactory to the Administrative Agent and shall comply with the rules and
regulations (including Regulation S-X) of the Securities Act, and shall in any
event include information that would be required in a registration statement on
Form S-1 for an offering registered under the Securities Act, including
without limitation the unaudited (or, in the case of fiscal years, audited)
financial statements of the Company (and, if applicable, Holdings) for the most
recent fiscal quarter or fiscal year then ended (each, a “Preliminary OM”); provided that no
Preliminary OM covering a particular fiscal quarter or fiscal year shall be required
to be delivered prior to the date that is 15 days after financial statements
covering such quarter or year are delivered pursuant to Section 5.1(a) or
5.1(b), as applicable.”


 


5        Amendment to Section 7.  Subclause (c) of Section 7 of the
Term Loan Agreement is hereby amended by deleting such subclause (c) in
its entirety and substituting in lieu thereof the following:


 


“(c) the Company shall default in the observance or performance of
any agreement contained in Section 5.9, Section 5.10 or Section 6;
or”


 


6.     Waiver of Section 5.1(b).    Notwithstanding anything in the Term Loan
Agreement to the contrary, the Lenders hereby waive (x) compliance with
the requirements of Section 5.1(b) of the Term Loan Agreement, solely
with respect to the quarterly period ended September 30, 2007, until and including
December 17, 2007, and (y) any Default or Event of Default that may
have resulted from the failure of the Company to comply with such requirements
prior to the effectiveness of this First Amendment and Waiver. It is agreed
that, if the items described in Section 5.1(b) with respect to such quarterly
period are not delivered by December 17, 2007, then an Event of Default
with respect to such Section shall thereafter be in existence, without
requirement of delivery of notice or any other action.


 


7.     Waiver of Section 5.9(c).    Notwithstanding anything in the Term Loan
Agreement to the contrary, the Lenders hereby waive any Default or Event of
Default that may have resulted from the failure of the Company to comply with
the requirements of Section 5.9(c) of the Term Loan Agreement prior
to the effectiveness of this First Amendment and Waiver.


 


8.     Representations and
Warranties.      On and as
of the date hereof, the Company hereby confirms that, after giving effect to
this First Amendment and Waiver, the representations and warranties set forth in
Section 3 of the Term Loan Agreement are true and correct in all material
respects, except to the extent that such representations and warranties
expressly relate to an earlier date (in which case, the Company hereby confirms
that such representations and warranties are true and correct in all material
respects as of such earlier date).


 


9.     Effectiveness of First
Amendment and Waiver.     This
First Amendment and Waiver shall become effective as of the date hereof when
the Administrative Agent shall have received counterparts of this First
Amendment and Waiver duly executed by the Company and the Required Lenders.


 


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10.
Continuing Effect; No Other Amendments, Waivers or Consents.       Except as expressly provided herein, all
of the terms and provisions of the Term Loan Agreement are and shall remain in
full force and effect. The waiver provided for herein is limited to the
specific Section of the Term Loan Agreement specified herein and shall not
constitute a consent, waiver or amendment of, or an indication of the
Administrative Agent’s or the Lenders’ willingness to consent to any action
requiring consent under any other provisions of the Term Loan Agreement or the
same subsection for any other date or time period. This First Amendment and
Waiver shall be binding on the parties hereto and their respective successors
and permitted assigns under the Term Loan Agreement.


 


11.
Expenses.        The
Company agrees to pay and reimburse the Administrative Agent for all its reasonable
and documented out-of-pocket costs and expenses incurred in connection with the
preparation and delivery of this First Amendment and Waiver, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, in each case to the extent required to be paid or reimbursed
pursuant to Section 9.5 of the Term Loan Agreement.


 


12.
Counterparts.  This
First Amendment and Waiver may be executed in any number of counterparts by the
parties hereto (including by facsimile transmission), each of which
counterparts when so executed shall be an original, but all the counterparts
shall together constitute one and the same instrument.


 


13.
GOVERNING LAW.       THIS
FIRST AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


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IN WITNESS WHEREOF, the parties hereto have caused
this First Amendment and Waiver to be duly executed by their respective
authorized officers as of the day and year first above written.


 


 


	
   

  	
  NEW ATA ACQUISITION INC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ William Garrett

  	
   

  
	
   

  	
  Name: 

  	
  William Garrett

  
	
   

  	
  Title: 

  	
  EVP & CFO

  
						



 


[Signature Page to First Amendment and Waiver]

















 


 


	
   

  	
  JPMORGAN
  CHASE BANK, NA., as Administrative

  
	
   

  	
  Agent
  and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Matthew II.Massic

  	
   

  
	
   

  	
  Name:
  

  	
  Matthew
  II.Massic

  
	
   

  	
  Title:
  

  	
  Managing
  Director

  
						



 


[Signature
Page to First Amendment and Waiver]

















 


	
   

  	
  JEFFERIES
  FINANCE LLC, as Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/E.J.
  Hess

  	
   

  
	
   

  	
  Name:
  

  	
  E.J.
  Hess

  
	
   

  	
  Title:
  

  	
  Managing
  Director

  
							



 


	
   

  	
  JEFFERIES
  FINANCE CP FUNDING LLC, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/E.J.
  Hess

  	
   

  
	
   

  	
  Name:
  

  	
  E.J.
  Hess

  
	
   

  	
  Title:
  

  	
  Managing
  Director