ATA Holdings, Corp. June 30, 2005 10-Q Exhibit 10.2

Exhibit 10.2

    FIFTH
      AMENDMENT TO CREDIT AGREEMENT

     

    This
      FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Fifth
      Amendment”),
      dated
      as of May 30, 2005, is by and among ATA AIRLINES INC., an Indiana corporation
      (the “Borrower”),
      ATA
      HOLDINGS CORP. (the “Parent”),
      each
      of the Subsidiaries of the Parent identified on the signature pages hereto
      (the
“Subsidiaries”),
      and
      SOUTHWEST AIRLINES CO., a Texas corporation (the “Lender”).

     

    R
      E C
      I T A L S

     

    A. The
      Lender and the Borrower, the Parent and the Subsidiaries entered into that
      certain Secured Debtor-in-Possession Credit and Security Agreement dated as
      of
      December 22, 2004, as amended by that certain First Amendment to Credit
      Agreement dated as of January 30, 2005, as further amended by that certain
      Second Amendment to Credit Agreement dated as of February 25, 2005, as further
      amended by that certain Third Amendment to Credit Agreement dated as of March
      31, 2005 and as further amended by that certain Fourth Amendment to Credit
      Agreement dated as of April 30, 2005 (the “Credit
      Agreement”),
      pursuant and subject to the terms and conditions of which, among other things,
      the Lender agreed to make loans and other financial accommodations to the Loan
      Parties (as defined in the Credit Agreement).

     

    B. The
      Borrower has requested that the Lender agree to amend certain provisions of
      the
      Credit Agreement on terms and conditions set forth herein.

     

    C. Subject
      to the terms and conditions of this Fifth Amendment, the Lender is willing
      to
      agree to the request of the Borrower.

     

    A
      G R
      E E M E N T S

     

    NOW,
      THEREFORE, in consideration of the mutual agreements contained herein, and
      subject to the terms and conditions hereof, the parties hereto hereby agree
      as
      follows:

     

    1. Incorporation
      of Recitals.
      The
      Recitals set forth above are incorporated herein, are acknowledged by the
      Borrower to be true and correct and are made a part hereof.

     

    2. Definitions.
      All
      capitalized terms used but not elsewhere defined herein shall have the
      respective meanings ascribed to such terms in the Credit Agreement.

     

    3. Amendments
      to Credit Agreement.
      The
      Credit Agreement is amended as set forth below:

     

    (a) Section
      1.01 - Definitions.
      The
      Credit Agreement is amended by deleting the current version of the definition
      of
“Maturity Date” in its entirety and substituting the following in lieu
      thereof:

     

    ““Maturity
      Date”
      means
      the earliest of (a) December 31, 2005, (b) the date of termination in whole
      of
      the Commitments, pursuant to Section 2.06 or 8.02(b), and (c) the effective
      date
      of a Reorganization Plan.”

     

    (b) Section
      6.22 - Disclosure Statement and Plan of Reorganization.
      The
      Credit Agreement is amended by deleting the current version of Section 6.22
      in
      its entirety and substituting the following in lieu thereof:

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “6.22 Disclosure
      Statement and Plan of Reorganization. File with the Bankruptcy Court the
      disclosure statement (with a the Reorganization Plan attached as an exhibit
      thereto) in substantially the form described in the term sheet delivered by
      the
      Borrower and accepted by the Lender describing such Reorganization Plan for
      all
      of the Cases, in each case on terms satisfactory to the Lender and obtain
      approval of such disclosure statement and confirmation of the Reorganization
      Plan on or prior to December 31, 2005.”

    


    4. Conditions
      to Effectiveness.
      The
      effectiveness of this Fifth Amendment shall be subject to the satisfaction
      of
      all of the following conditions in a manner, form and substance satisfactory
      to
      the Lender:

     

    (a) Delivery
      of Documents.
      The
      following shall have been delivered to the Lender, each duly authorized and
      executed and each in form and substance satisfactory to the Lender:

     

    (1) this
      Fifth Amendment; and

     

    (2) such
      other instruments, documents, certificates, consents, waivers and opinions
      as
      the Lender may reasonably request.

     

    (b) No
      Default.
      No
      Event of Default or event which, with the giving of notice or the lapse of
      time,
      or both, would constitute an Event of Default, shall exist as
      of the
      effective date of this Fifth Amendment, after giving effect to this Fifth
      Amendment.

     

    (c) Approval
      of the ATSB and the Creditors Committee.
      The
      Lender shall have received satisfactory evidence that the ATSB and the Creditors
      Committee shall have consented to this Fifth Amendment in accordance with the
      provisions of Section 11.01 of the Credit Agreement.

     

    Upon
      the
      satisfaction of all of the conditions set forth in this Paragraph 4 this
      Amendment shall become effective as of May 23, 2005 (the “Effective
      Date.”)

     

    5. References.
      From
      and after the Effective Date, all terms used in the Credit Documents which
      are
      defined in the Credit Agreement shall be deemed to refer to such terms as
      amended by this Fifth Amendment. This Fifth Amendment shall constitute a
“Loan
      Document.”

     

    6. Representations
      and Warranties.
      Each
      Loan Party hereby confirms to the Lender that the representations and warranties
      set forth in the Loan Documents are true and correct in all respects as of
      the
      date hereof, and shall be deemed to be remade as of the date hereof. Each Loan
      Party represents and warrants to the Lender that (i) such Loan Party has full
      power and authority to execute and deliver this Fifth Amendment and to perform
      its obligations hereunder, (ii) upon the execution and delivery hereof, this
      Fifth Amendment will be valid, binding and enforceable upon such Loan Party
      in
      accordance with its terms, (iii) the execution and delivery of this Fifth
      Amendment does not and will not contravene, conflict with, violate or constitute
      a default under (A) its organizational documents or (B) any applicable law,
      rule, regulation, judgment, decree or order or any agreement, indenture or
      instrument to which such Loan Party is a party or is bound or which is binding
      upon or applicable to all or any portion of such Loan Party’s properties or
      assets and (iv) as of the date hereof no Event of Default exists.

     

    7. No
      Further Amendments; Ratification of Liability.
      Except
      as amended hereby, the Credit Agreement and each of the other Loan Documents
      shall remain in full force and effect in accordance with its respective terms.
      Each Loan Party hereby ratifies and confirms its liabilities, obligations and
      agreements under the Credit Agreement and the other Loan Documents, all as
      amended by this Fifth Amendment, and the Liens created thereby, and acknowledges
      that (i) it has no defenses, claims or set-offs to the enforcement by the Lender
      of such liabilities, obligations and agreements, (ii) the Lender has fully
      performed all obligations to the Loan Parties which it may have had, or has,
      on
      and as of the date hereof and (iii) other than as specifically set forth herein,
      the Lender does not waive, diminish or limit any term or condition contained
      in
      the Credit Agreement or the other Loan Documents. The agreement of the Lender
      to
      the terms of this Fifth Amendment or any other amendment of the Credit Agreement
      shall not be deemed to establish or create a custom or course of dealing among
      the Lender and the Loan Parties.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    8. Incorporation
      by Reference.
      The
      following sections of the Credit Agreement are incorporated by reference in
      this
      Fifth Amendment: 1.02 (Other Interpretive Provisions); 11.02(b) (Effectiveness
      of Facsimile Documents and Signatures); 11.11 (Counterparts); 11.12
      (Integration); 11.14 (Severability); and 11.15 (Governing Law).

     

    9. Further
      Assurances.
      Each
      Loan Party will at any time and from time to time do, execute, acknowledge
      and
      deliver, or will cause to be done, executed, acknowledged and delivered, all
      such further acts, documents and instruments as reasonably may be required
      by
      the Lender in order to effectuate fully the intent of this Fifth
      Amendment.

     

    [signatures
      on following pages]

     

    


     


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

        
        

      

    



    IN
      WITNESS WHEREOF, this Fifth Amendment has been executed and delivered by each
      of
      the parties hereto by a duly authorized officer of each such party on the date
      first set forth above.

     

    
      	
                                                         LENDER:

               

                                                         SOUTHWEST
                AIRLINES CO., a Texas corporation

               

            
	
                                                          By:    
                 /s/
                Laura Wright

            
	
                                                          Name:
                Laura Wright

            
	
                                                          Title:   
                SVP Finance & CFO

            
	
                                                          

               

                                                          BORROWER:

               

                                                          ATA
                AIRLINES, INC., an Indiana corporation

               

            
	
                                                          By:     
                /s/ Sean G. Frick

            
	
                                                          Name:
                Sean G. Frick

            
	
                                                          Title:   
                Vice President & Chief Restructuring Officer

            
	
                                                          

               

                                                          GUARANTORS:

               

                                                          ATA
                HOLDINGS CORP., an Indiana corporation

               

            
	
                                                          By:     
                /s/ Sean G. Frick

            
	
                                                          Name:
                Sean G. Frick

            
	
                                                          Title:   Vice
                President & Chief Restructuring Officer

            
	 
	
                                                          AMBASSADAIR
                TRAVEL CLUB, INC., an Indiana corporation

               

            
	
                                                          By:     
                /s/ Sean G. Frick

            
	
                                                          Name:
                Sean G. Frick

            
	
                                                          Title:   Vice
                President & Chief Restructuring Officer

            
	 
	
                                                          ATA
                LEISURE CORP., an Indiana corporation

               

            
	
                                                          By:     
                /s/ Sean G. Frick

            
	
                                                          Name:
                Sean G. Frick

            
	
                                                          Title:  
                Vice President & Chief Restructuring Officer

            
	 
	
                                                          AMBER
                TRAVEL, INC., an Indiana corporation

               

            
	
                                                          By:     
                /s/ Sean G. Frick

            
	
                                                          Name:
                Sean G. Frick

            
	
                                                          Title:   
                Vice President & Chief Restructuring
                Officer

            


    


    
      
        
        

      

      
        
        

        
          

        

      

       

    

    
      	
               

               

                                                          AMERICAN
                TRANS
                AIR EXECUJET, INC., an Indiana corporation

               

            
	
                                                          By:     
                /s/ Sean G. Frick

            
	
                                                          Name:
                Sean G. Frick

            
	
                                                          Title:  
                Vice President & Chief Restructuring Officer

            
	 
	
                                                          ATA
                CARGO, INC., a California corporation

               

            
	
                                                          By:     
                /s/ Sean G. Frick

            
	
                                                          Name:
                Sean G. Frick

            
	
                                                          Title:   
                Vice President & Chief Restructuring Officer

            
	
               

               

                                                          CHICAGO
                EXPRESS AIRLINES, INC., a Georgia corporation

               

            
	
                                                          By:     
                /s/ Brian T. Hunt

            
	
                                                          Name:
                Brian T. Hunt

            
	
                                                          Title:   
                Secretary

            


    

    [signature
      page to Fifth Amendment to Credit Agreement]