ATA Holdings, Corp. June 30, 2005 10-Q Exhibit 10.4

Exhibit 10.4

    SIXTH
      AMENDMENT TO CREDIT AGREEMENT

     

    This
      SIXTH AMENDMENT TO CREDIT AGREEMENT (this “Sixth
      Amendment”),
      dated
      as of June 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, that certain Second Amendment to Credit
      Agreement dated as of February 25, 2005, that certain Third Amendment to Credit
      Agreement dated as of March 31, 2005, that certain Fourth Amendment to Credit
      Agreement dated as of April 30, 2005, and that certain Fifth Amendment to Credit
      Agreement dated as of May 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 Sixth Amendment, the Lender is willing
      to
      agree to the request of the Borrower.

     

    A
      G R
      E E M E N T S

     

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

     

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

     

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

     

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

     

    (a) Section
      7.11(a) - Minimum Consolidated EBITDARR.
      The
      Credit Agreement is amended by deleting the current version of Section 7.11(a)
      in its entirety and substituting the following in lieu thereof: 

     

    “(a) Minimum
      Consolidated EBITDARR. (i) Permit Consolidated EBITDARR for each calendar month
      beginning on July 1, 2005 and ending with September 30, 2005 to be less than
      75%
      of the projected EBITDARR for each such month as set forth the in the Borrower’s
      Projections; nor (ii) permit cumulative Consolidated EBITDARR for each month
      beginning on July 1, 2005 and ending on September 30, 2005 to be less than
      80%
      of the cumulative Consolidated EBITDARR for each such calendar month as set
      forth in the Borrower’s Projections (provided that the first such cumulative
      EBITDARR of the Borrower, the Parent and its Subsidiaries shall be tested for
      the period beginning on July 1, 2005 and ending on August 31,
      2005).”

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (b) Section
      7.11(b) - Minimum Adjusted EBITDARR.
      The
      Credit Agreement is amended by deleting the current version of Section 7.11(b)
      in its entirety and substituting the following in lieu thereof: 

     

    “(b) Minimum
      Adjusted EBITDARR. (i) Permit Adjusted EBITDARR for each month beginning on
      July
      1, 2005 and ending with September 30, 2005 to be less than 75% of the projected
      Adjusted EBITDARR for each such month as set forth the in the Borrower’s
      Projections; nor (ii) permit cumulative Adjusted EBITDARR for each month
      beginning on July 1, 2005 and ending on September 30, 2005 to be less than
      80%
      of the cumulative Adjusted EBITDARR for each such month as set forth in the
      Borrower’s Projections (provided that the first such cumulative Adjusted
      EBITDARR of the Borrower, the Parent and its Subsidiaries shall be tested for
      the period beginning on July 1, 2005 and ending on August 31,
      2005).”

     

    4. Conditions
      to Effectiveness.
      The
      effectiveness of this Sixth 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
      Sixth 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 Sixth Amendment, after giving effect to this Sixth
      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 Sixth 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 June 30, 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 Sixth Amendment. This Sixth 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 Sixth Amendment and to perform
      its obligations hereunder, (ii) upon the execution and delivery hereof, this
      Sixth Amendment will be valid, binding and enforceable upon such Loan Party
      in
      accordance with its terms, (iii) the execution and delivery of this Sixth
      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.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    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 Sixth 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 Sixth Amendment or any other amendment of the Credit Agreement
      shall not be deemed to establish or create a custom or course of dealing among
      the Lender and the Loan Parties.

     

    8. Incorporation
      by Reference.
      The
      following sections of the Credit Agreement are incorporated by reference in
      this
      Sixth 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 Sixth
      Amendment.

     

    [signatures
      on following pages]

     

    


     


    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, this Sixth 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/ Wisty B. Malone

              
	
                Name:
                  Wisty B. Malone

              
	
                Title:
                  Vice President/Controller 

                 

              
	
                GUARANTORS:

                 

                ATA
                  HOLDINGS CORP., an Indiana corporation

                 

              
	
                By:
                  /s/ Wisty B. Malone

              
	
                Name:
                  Wisty B. Malone

              
	
                Title:
                  Vice President/Controller 

                 

              
	
                AMBASSADAIR
                  TRAVEL CLUB, INC., an Indiana corporation

                 

              
	
                By:
                  /s/ Wisty B. Malone

              
	
                Name:
                  Wisty B. Malone

              
	
                Title:
                  Vice President/Controller 

                 

              
	
                ATA
                  LEISURE CORP., an Indiana corporation

                 

              
	
                By:
                  /s/ Wisty B. Malone

              
	
                Name:
                  Wisty B. Malone

              
	
                Title:
                  Vice President/Controller 

                 

              
	
                AMBER
                  TRAVEL, INC., an Indiana corporation

                 

              
	
                By:
                  /s/ Wisty B. Malone

              
	
                Name:
                  Wisty B. Malone

              
	
                Title:
                  Vice President/Controller 

                 

              


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      


      
        	
                 

                 

                AMERICAN
                  TRANS AIR EXECUJET, INC., an Indiana corporation

                 

              
	
                By:
                  /s/ Wisty B. Malone

              
	
                Name:
                  Wisty B. Malone

              
	
                Title:
                  Vice President/Controller 

                 

              
	
                ATA
                  CARGO, INC., a California corporation

                 

              
	
                By:
                  /s/ Wisty B. Malone

              
	
                Name:
                  Wisty B. Malone

              
	
                Title:
                  Vice President/Controller 

                 

              
	
                CHICAGO
                  EXPRESS AIRLINES, INC., a Georgia corporation

                 

              
	
                By:
                  /s/ Wisty B. Malone

              
	
                Name:
                  Wisty B. Malone

              
	
                Title:
                  Vice President/Controller 

                 

              


      

      [signature
        page to Sixth Amendment to Credit Agreement]