Exhibit 4.3
EXECUTION COPY
PURCHASE AGREEMENT
December 16, 1999
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Amtran, Inc., an Indiana corporation (the "Company"), proposes to
issue and sell to Deutsche Bank Securities Inc. (the "Initial Purchaser")
$75,000,000 aggregate principal amount of its 10.5% Senior Notes due 2004 (the
"Securities") to be issued pursuant to the provisions of an Indenture dated as
of July 24, 1997 (the "Original Indenture") among the Company, as issuer,
American Trans Air, Inc. ("ATA"), Ambassadair Travel Club, Inc., ATA Leisure
Corp. (formerly known as ATA Vacations, Inc.), Amber Travel, Inc., American
Trans Air Training Corporation, American Trans Air Execujet, Inc., Amber Air
Freight Corporation (each, an Indiana corporation) and Chicago Express
Airlines, Inc., a Georgia corporation, as guarantors (together, the
"Guarantors"), and First Security Bank, N.A., as trustee (the "Trustee") as
supplemented by a supplemental indenture dated as of December 21, 1999 (the
"First Supplemental Indenture" and together with the Original Indenture, the
"Indenture") among the Company, the Guarantors and the Trustee. Pursuant to
the terms of the Indenture the Guarantors will guarantee (each, a "Guarantee")
on a joint and several basis the obligations of the Company under the
Securities and the Indenture.
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), to "qualified
institutional buyers" (as defined in Rule 144A under the Securities Act) in
compliance with the exemption from registration provided by Rule 144A under
the Securities Act ("Rule 144A") and in offshore transactions in reliance on
Regulation S under the Securities Act ("Regulation S").
The Initial Purchaser and its direct and indirect transferees will
be entitled to the benefits of a registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date (as defined
below) and to be substantially in the form attached hereto as Exhibit A.
In connection with the sale of the Securities, the Company will
prepare a private placement memorandum (the "Memorandum") setting forth or
including a description of the terms of the Securities, the terms of the
offering and a description of the Company and its business. Any reference
herein to the Memorandum shall be deemed to refer to and include the documents
incorporated by reference therein which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of
the Memorandum; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Memorandum shall be deemed to refer to and
include the filing of any document under the Exchange Act after the date of
the Memorandum, deemed to be incorporated therein by reference.
2
1. Representations and Warranties. Each of the Guarantors and the
Company represents and warrants to, and agrees with, the Initial Purchaser
that as of the date hereof:
(a) The Memorandum, in the form used by the Initial Purchaser to
confirm sales and on the Closing Date (as defined below), will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this Section 1(a) do not apply to statements or omissions in the
Memorandum based upon information relating to the Initial Purchaser furnished
to the Company or any Guarantor in writing by the Initial Purchaser expressly
for use therein.
(b) None of the Guarantors, the Company nor any affiliate (as
defined in Rule 501(b) of Regulation D under the Securities Act, an
"Affiliate") of the Guarantors or the Company has directly, or through any
agent, (i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities Act)
which is or will be integrated with the sale of the Securities in a manner
that would require the registration under the Securities Act of the Securities
or (ii) engaged in any form of general solicitation or general advertising in
connection with the offering of the Securities (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act except that
no representation is made as to the activities of the Initial Purchaser.
(c) None of the Guarantors, the Company, their Affiliates nor any
person acting on its or their behalf (other than the Initial Purchaser) has
engaged in any directed selling efforts (as that term is defined in Regulation
S) with respect to the Securities and each of the Guarantors, the Company and
its Affiliates and any person acting on its or their behalf (other than the
Initial Purchaser) have complied with the offering restrictions requirement of
Regulation S.
(d) The Company is subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended.
(e) Assuming the accuracy of the representations and warranties of
the Initial Purchaser in Section 6 and the compliance by the Initial Purchaser
with its agreements in Section 6, it is not necessary in connection with the
offer, sale and delivery of the Securities and the Guarantees to the Initial
Purchaser in the manner contemplated by this Agreement to register the
Securities or Guarantees under the Securities Act, except as provided in the
Registration Rights Agreement. The Original Indenture is duly qualified under
the Trust Indenture Act of 1939, as amended.
(f) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(g) Neither the Company nor any of the Guarantors is required to
register as an "investment company" and, after giving effect to the offer,
issuance and delivery of the Securities to the Initial Purchaser in accordance
with the terms of this Agreement and the application of the proceeds thereof
as described in the Memorandum, neither the Company nor any of the Guarantors
will be required to register as an
3
"investment company" under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(h) The accountants that examined and issued an auditors report with
respect to the consolidated financial statements of the Company and its
consolidated subsidiaries included in the Memorandum are independent public
accountants within the meaning of the Securities Act and the regulations
thereunder.
(i) This Agreement has been duly authorized, executed and delivered
by each of the Guarantors and the Company.
(j) The consolidated financial statements included in the Memorandum
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the consolidated
results of operations and cash flows or changes in financial position of the
Company and its consolidated subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved. The financial statement schedules, if any, included in the
Memorandum present fairly the information required to be stated therein.
(k) Each of the Guarantors and the Company is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated with power and authority (corporate
and other) under such laws to own, lease and operate its properties and
conduct its business as described in the Memorandum and to perform its
obligations under this Agreement, the Registration Rights Agreement, the
Indenture, the Securities (in the case of the Company) and the Guarantees (in
the case of the Guarantors); and each of the Guarantors and the Company is
duly qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the condition (financial
or other), business, prospects or results of operations of the Company and the
Guarantors, taken as a whole (a "Material Adverse Effect").
(l) The Securities have been duly authorized and, when executed,
authenticated and delivered to and paid for by the Initial Purchaser in
accordance with the terms of this Agreement, will be (x) valid and binding
obligations of the Company enforceable in accordance with their terms, except
as (A) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (B) rights of
acceleration, if applicable, and the availability of equitable remedies may be
limited by equitable principles of general applicability, and (y) be entitled
to the benefits of the Indenture and the Registration Rights Agreement.
(m) The Guarantees have been duly authorized by each of the
Guarantors and, upon execution and delivery of the First Supplemental
Indenture by each of the Guarantors and the Company, will be (x) valid and
binding obligations of the each of the Guarantors enforceable in accordance
with their terms, except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and (B) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of general
4
applicability, and (y) be entitled to the benefits of the Indenture and the
Registration Rights Agreement.
(n) Each of the Original Indenture, the First Supplemental Indenture
and the Registration Rights Agreement has been duly authorized, executed and
delivered by, and is a valid and binding agreement of, the Company and each of
the Guarantors, enforceable in accordance with their terms, except as the
enforceability thereof, except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws relating to or affecting
creditors' rights generally, (B) rights of acceleration, if applicable, and
the availability of equitable remedies may be limited by equitable principles
of general applicability and (C) the rights to indemnification or contribution
may be limited by applicable law and public policy.
(o) ATA is an air carrier operating under a certificate issued by
the Secretary of Transportation pursuant to Chapter 447 of Title 49, United
States Code, for aircraft capable of carrying 10 or more individuals or 6,000
pounds or more of cargo, and American Trans Air ExecuJet, Inc. ("ExecuJet") is
an "air taxi," and the Company, ATA and ExecuJet and (and after consummation
of the transactions contemplated herein will be) "citizens of the United
States," in each case within the meaning of the Federal Aviation Act of 1958,
as amended. All of the outstanding shares of capital stock of each of the
Guarantors have been duly authorized and validly issued and are fully paid and
non-assessable and are owned by the Company, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any kind.
(p) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Guarantors and the Company taken as a whole, from that set forth in the
Memorandum.
(q) Except as described in the Memorandum, none of the Guarantors or
the Company is in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which it is a party or by which they may be bound or to which any of their
properties may be subject, except for such defaults that would not have a
Material Adverse Effect.
(r) The execution and delivery by each of the Guarantors and the
Company of this Agreement, the Registration Rights Agreement, the First
Supplemental Indenture, the Securities (in the case of the Company) and the
Guarantees (in the case of the Guarantors) (collectively, with the Original
Indenture, the "Operative Documents"), the consummation by each of the
Guarantors and the Company of the transactions contemplated in this Agreement
and the Operative Documents and compliance by each of the Guarantors and the
Company with the terms of this Agreement and the Operative Documents will not
contravene (i) any provision of applicable law or the articles of
incorporation or by-laws of the Guarantors or the Company, as the case may be,
(ii) any agreement or other instrument (including the Original Indenture)
binding upon the Guarantors or the Company or (iii) any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Guarantors or the Company other than, in the case of clauses (ii) and (iii)
above, such contraventions that would not individually or in the aggregate
have a Material Adverse Effect, and no consent, approval, authorization or
order of, or qualification with, any governmental body or
5
agency is required for the valid authorization, execution, delivery and
performance by each of the Guarantors and the Company of this Agreement or the
consummation by the Guarantors or the Company of the transactions contemplated
by this Agreement and the Operative Documents, except such as may be required
by the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Securities and the Guarantees.
(s) There are no legal or governmental proceedings pending or
threatened to which the Company or any of the Guarantors is a party, or to
which any of the properties of the Company or any of the Guarantors is
subject, other than proceedings accurately described in all material respects
in the Memorandum and proceedings that would not have a Material Adverse
Effect, or a material adverse effect on the power or ability of any of the
Guarantors or the Company to perform their respective obligations under this
Agreement or any of the Operative Documents, or to consummate the transactions
contemplated by the Memorandum.
(t) The Company and each of the Guarantors possess adequate
certificates, authorities and permits issued by appropriate governmental
agencies or bodies necessary to conduct, in all material respects, the
business now operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate, authority
or permit that reasonably would be likely to, individually or in the
aggregate, have a Material Adverse Effect.
(u) Except as disclosed in the Memorandum, no labor dispute with the
employees of the Company or any of the Guarantors exists or to the knowledge
of the Company or any of the Guarantors is imminent that might have a Material
Adverse Effect.
(v) Except as disclosed in the Memorandum, the Company and each of
the Guarantors (i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) have received
all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, have a Material Adverse Effect.
(w) Except as disclosed in the Memorandum, each of the Guarantors
and the Company have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects except where the failure to have such title would not
have a Material Adverse Effect; and except as disclosed in the Memorandum,
each of the Guarantors and the Company hold any leased real or personal
property under valid and enforceable leases with no exceptions that would have
a Material Adverse Effect.
(x) The Company and its subsidiaries have implemented a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by them may be unable to recognize and
properly execute
6
date-sensitive functions involving certain dates prior to and any dates after
December 31, 1999 (the "Year 2000 Problem"), and has determined that such risk
will be remedied on a timely basis without material expense and will not have
a Material Adverse Effect; and the Company believes, after due inquiry, that
each supplier, vendor, customer or financial service organization used or
serviced by the Company and its subsidiaries has remedied or will remedy on a
timely basis the Year 2000 Problem, except to the extent that a failure to
remedy by any such supplier, vendor, customer or financial service
organization would not have a Material Adverse Effect.
The representations and warranties contained in this Agreement shall
be true and correct as of the date of this Agreement and as of the Closing
Date.
2. Offering. The Initial Purchaser has advised the Company and the
Guarantors that it will make an offering of the Securities received and paid
for by the Initial Purchaser hereunder on the terms set forth in the
Memorandum as soon as practicable after this Agreement is entered into as in
the Initial Purchaser's judgment is advisable.
3. Issuance and Delivery.
(a) The Company hereby agrees to sell to the Initial Purchaser, and
the Initial Purchaser, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agrees to
purchase from the Company, $75,000,000 in aggregate principal amount of
Securities at a purchase price of 100% of the principal amount thereof.
(b) Payment for the Securities shall be made against delivery of the
Securities at a closing (the "Closing") to be held at the office of Cleary,
Gottlieb, Xxxxx & Xxxxxxxx at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
10:00 A.M., local time, on December 21, 1999, or at such other time on the
same or such other date, not later than December 24, 1999, as shall be agreed
upon by the Company and the Initial Purchaser. The time and date of such
payment are herein referred to as the Closing Date. Delivery of the Securities
shall be made to the Initial Purchaser's account at The Depository Trust
Company against payment by the Initial Purchaser of the purchase price thereof
by wire transfer in immediately available funds.
(c) Certificates for the Securities shall be in global or definitive
form and registered in such names and in such denominations as the Initial
Purchaser shall request in writing not less than two full business days prior
to the Closing Date. The certificates evidencing the Securities shall be
delivered to the Initial Purchaser on the Closing Date for its account, with
any transfer taxes payable in connection with the transfer of the Securities
to the Initial Purchaser duly paid, against payment of the purchase price
therefor.
7
4. Conditions to Closing. The obligations of the Initial Purchaser
under this Agreement to purchase the Securities will be subject to the
following conditions:
(a) Subsequent to the date of this Agreement and prior to the
Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any securities of any of the
Guarantors or the Company by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Company and the
Guarantors, taken as a whole, from that set forth in the Memorandum that,
in the Initial Purchaser's judgment, is material and adverse and that
makes it, in the Initial Purchaser's judgment, impracticable to market
the Securities on the terms and in the manner contemplated in the
Memorandum.
(b) The Initial Purchaser shall have received on the Closing Date
(i) a certificate, dated the Closing Date and signed by an executive officer
of the Company and (ii) a certificate, dated the Closing Date and signed by an
executive officer of each Guarantor, in each case, to the effect set forth in
clause (a)(i) above and to the effect that the representations and warranties
of the Company and the Guarantors contained in this Agreement are true and
correct as of the Closing Date and that the Company and each of the Guarantors
have complied with all of the agreements and satisfied all of the xxxxxx ions
on their part to be performed or satisfied on or before the Closing Date. The
officers signing and delivering such certificates may rely upon the best of
their knowledge as to proceedings threatened.
(c) The Initial Purchaser shall have received on the Closing Date an
opinion of Cravath, Swaine & Xxxxx, independent counsel for the Company, dated
the Closing Date, to the effect set forth in Exhibit B.
(d) The Initial Purchaser shall have received on the Closing Date an
opinion of the General Counsel of the Guarantor(s) and the Company, dated the
Closing Date, to the effect set forth in Exhibit C.
(e) The Initial Purchaser shall have received on the Closing Date an
opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for it, dated the
Closing Date, in form and substance satisfactory to the Initial Purchaser.
(f) The Initial Purchaser shall have received on each of the date
hereof and the Closing Date a letter, dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to it, from the
Guarantors' and the Company's independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Memorandum;
8
provided that the letter delivered on the Closing Date shall use a "cut-off
date" not earlier than this Agreement.
(g) Each of the Guarantors and the Company shall have furnished to
the Initial Purchaser and to counsel for the Initial Purchaser, in form and
substance satisfactory to it and to them, such other documents, certificates
and opinions as such counsel may reasonably request in order to pass upon the
matters referred to in Section 4(e) and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements, the
performance of any covenant by any of the Guarantors or the Company
theretofore to be performed, or the compliance with any of the conditions
herein contained.
5. Covenants of the Company. In further consideration of the
agreements of the Initial Purchaser contained in this Agreement, the Company
and each of the Guarantors covenant as follows:
(a) To furnish to the Initial Purchaser, without charge, during the
period mentioned in paragraph (c) below, as many copies of the Memorandum and
any supplements and amendments thereto as it may reasonably request and to
deliver such copies to the Initial Purchaser by 8:00 a.m. (New York time) on
the second business day following the execution of this Agreement.
(b) Before amending or supplementing the Memorandum, to furnish to
the Initial Purchaser a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which the Initial
Purchaser reasonably objects.
(c) If, during such period after the date hereof and prior to the
date on which all of the Securities shall have been sold by the Initial
Purchaser, any event shall occur or condition exist as a result of which it is
necessary in the Initial Purchaser's judgment to amend or supplement the
Memorandum in order to make the statements therein, in the light of the
circumstances when the Memorandum is delivered to a purchaser, not misleading,
or if, with the opinion of counsel to the Initial Purchaser it is necessary to
amend or supplement the Memorandum to comply with applicable law, forthwith to
prepare and furnish, at its own expense, to the Initial Purchaser, either
amendments or supplements to the Memorandum so that the statements in the
Memorandum as so amended or supplemented will not, in the light of the
circumstances when the Memorandum is delivered to a purchaser, be misleading
or so that the Memorandum, as so amended or supplemented, will comply with
applicable law.
(d) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, at any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act,
each of the Guarantors and the Company will provide to any holder of such
restricted securities, or to any prospective purchaser of such restricted
securities designated by a holder, upon the request of such holder or
prospective purchaser, any information required to be delivered to holders and
prospective purchasers of the Securities pursuant to Rule 144A(d)(4) under the
Securities Act.
9
(e) To endeavor to qualify the Securities and the Guarantees for
offer and sale under the applicable securities or Blue Sky laws of such
jurisdictions as the Initial Purchaser shall reasonably request.
(f) For a period of five years after the Closing Date, the
Guarantors and the Company will make available to the Initial Purchaser copies
of all annual reports, quarterly reports and current reports filed by the
Company with the Securities and Exchange Commission (the "Commission") on
Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission, and such other documents, reports and information as shall be
furnished by the Company to the holders of the Securities or the Guarantors to
their security holders generally; provided that at such time the Company has
securities registered under Section 12(b) or 12(g) of the Exchange Act.
(g) During the period of two years after the Closing Date, each of
the Guarantors and the Company will, upon request, furnish to the Initial
Purchaser and any holder of the Securities a copy of the restrictions on
transfer applicable to the Securities.
(h) During the period of two years after the Closing Date, none of
the Guarantors or the Company will, and none of the Guarantors or the Company
will permit any of their affiliates (as defined in Rule 144 under the
Securities Act) to, resell any of the Securities that have been reacquired by
any of them.
(i) During the period of two years after the Closing Date, none of
the Guarantors or the Company will be or become an open-end investment
company, unit investment trust or face-amount certificate company that is or
is required to be registered under Section 8 of the Investment Company Act, or
a closed-end investment company required to be registered, but not registered,
under the Investment Company Act.
(j) The Company shall bear and pay all costs and expenses incurred
incident to the performance of its obligations under this Agreement, whether
or not the transactions contemplated herein are consummated or this Agreement
is terminated pursuant to Section 8 hereof, including: (i) the fees and
expenses of preparation, issuance and delivery of this Agreement to the
Initial Purchaser; (ii) the fees and expenses of its counsel, accountants and
any other experts or advisors retained by the Company; (iii) the fees and
expenses incurred in connection with the preparation of the Memorandum and all
amendments and supplements thereto; (iv) the fees and expenses of the printing
and distribution of the Memorandum and the printing and production of all
other documents connected with the offering of the Securities (including this
Agreement and any other related agreements); (v) expenses related to the
qualification of the Securities under the state securities or Blue Sky laws,
including filing fees and the fees and disbursements of counsel for the
Initial Purchaser in connection therewith and in connection with the
preparation of any Blue Sky memoranda; (vi) the expenses arising from having
the Securities designated as eligible for trading in the PORTAL market; (vii)
the expenses associated with the preparation, issuance and delivery to the
Initial Purchaser of the Securities; (viii) the fees and expenses of the
Trustee and (ix) the expenses of the "roadshow" and any other meetings with
prospective investors in the Securities.
(k) In connection with the offering, until the Initial Purchaser
shall have notified the Guarantors and the Company of the completion of the
resale of the Securities, neither the Company, any Guarantor nor any of their
affiliates has bid for or purchased or will bid for or
10
purchase, either alone or with one or more other persons, for any account in
which they or any of their affiliates have a beneficial interest in any
Securities, and neither they nor any of their affiliates will make bids or
purchases for the purpose of creating actual, or apparent, active trading in,
or of raising the price of, the Securities, in either case in violation of
Regulation M under the Exchange Act.
(l) Between the date of this Agreement and the Closing Date, none of
the Guarantors or the Company will without the Initial Purchaser's prior
written consent offer, sell, or enter into any agreement to sell, any public
debt securities registered under the Securities Act or any debt securities
which may be resold in a transaction exempt from the registration requirements
of the Securities Act in reliance on Rule 144A thereunder and which are
marketed through the use of a disclosure document containing substantially the
same information as a prospectus for similar debt securities registered under
the Securities Act (other than the Securities).
(m) Not to solicit any offer to buy or offer or sell the Securities
by means of any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(n) If requested by the Initial Purchaser, to use its reasonable
efforts to permit the Securities to be designated PORTAL securities in
accordance with the rules and regulations adopted by the National Association
of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(o) None of the Company, the Guarantors, their Affiliates or any
person acting on its or their behalf (other than the Initial Purchaser) will
engage in any directed selling efforts (as that term is defined in Regulation
S) with respect to the Securities, and the Company, each of the Guarantors and
their Affiliates and each person acting on its or their behalf (other than the
Initial Purchaser) will comply with the offering restrictions of Regulation S.
(p) Neither the Company, any Guarantor nor any Affiliate will sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as defined in the Securities Act) which could be integrated with
the sale of the Securities in a manner which would require the registration
under the Securities Act.
6. Offering of Securities; Restrictions on Transfer.
(a) The Initial Purchaser represents and warrants that it is a
qualified institutional buyer as defined in Rule 144A under the Securities Act
(a "QIB"). The Initial Purchaser agrees with the Company that (i) it has not
and will not solicit offers for, and has not offered or sold and will not
offer or sell, such Securities by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of Section
4(2) of the Securities Act and (ii) it has and will solicit offers for such
Securities only from, and has offered and will offer such Securities only to,
persons that it reasonably believes to be (A) in the case of offers inside the
United States, QIBs and (B) in the case of offers outside the United States,
to persons other than U.S. persons ("foreign purchasers," which term shall
include dealers or other professional fiduciaries in the United States acting
on a discretionary basis for foreign beneficial owners (other
11
than an estate or trust)) that, in each case, in purchasing such Securities
are deemed to have represented and agreed as provided in the Memorandum under
the caption "Transfer Restrictions."
(b) The Initial Purchaser represents, warrants, and agrees with
respect to offers and sales outside the United States that:
(i) it understands that no action has been or will be taken in any
jurisdiction by any Guarantor or the Company that would permit a public
offering of the Securities, or possession or distribution of the
Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose
is required;
(ii) such Initial Purchaser will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers Securities or has in its possession or distributes the
Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been and will not be registered under
the Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act;
(iv) the Initial Purchaser has offered the Securities and will offer
and sell the Securities (A) as part of their distribution at any time and
(B) otherwise until 40 days after the later of the commencement of the
offering of the Securities and the Closing Date, only in accordance with
Rule 903 of Regulation S or another exemption from the registration
requirements of the Securities Act. Accordingly, neither the Initial
Purchaser, its Affiliates nor any persons acting on its or their behalf
have engaged or will engage in any directed selling efforts (within the
meaning of Regulation S) with respect to the Securities, and the Initial
Purchaser, its Affiliates and any such persons have complied and will
comply with the offering restrictions requirements of Regulation S;
(v) the Initial Purchaser represents that it has (i) not offered or
sold, and will not offer or sell, in the United Kingdom, by means of any
document, any Securities other than to persons whose ordinary business it
is to buy or sell shares or debentures, whether as principal or as agent
(except in circumstances which do not constitute an offer to the public
within the meaning of the Companies Xxx 0000 of Great Britain); (ii)
complied and will comply with all applicable provisions of the Financial
Services Xxx 0000 of the United Kingdom with respect to anything done by
it in relation to the Securities in, from or otherwise involving the
United Kingdom; and (iii) only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection
with the issue of the Securities to a person who is of a kind described
in Article 9(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the
document may otherwise lawfully be issued or passed on;
12
(vi) the Initial Purchaser understands that the Securities have not
been and will not be registered under the Securities and Exchange Law of
Japan, and represents that it has not offered or sold, and agrees that it
will not offer or sell, any Securities, directly or indirectly in Japan
or to any resident of Japan except (A) pursuant to an exemption from the
registration requirements of the Securities and Exchange Law of Japan and
(B) in compliance with any other applicable requirements of Japanese law;
and
(vii) the Initial Purchaser agrees that, at or prior to confirmation
of sales of the Securities, it will have sent to each distributor, dealer
or person receiving a selling concession, fee or other remuneration that
purchases Securities from it during the restricted period a confirmation
or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available)
under the Securities Act. Terms used above have the meanings given
to them by Regulation S."
Terms used in this Section 6 have the meaning given to them by Regulation S of
the Securities Act.
7. Indemnification and Contribution.
(a) Each of the Company and each Guarantor, jointly and severally,
agrees to indemnify and hold harmless the Initial Purchaser, and each person,
if any, who controls the Initial Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, or is
under common control with, or is controlled by, the Initial Purchaser, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by the
Initial Purchaser or any such controlling of affiliated person in connection
with defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Memorandum (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Initial Purchaser furnished to
any Guarantor or the Company in writing by the Initial Purchaser expressly for
use therein.
(b) The Initial Purchaser agrees to indemnify and hold harmless each
Guarantor and the Company, their directors, their officers and each person, if
any, who controls the Company or any Guarantor within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from each Guarantor and the Company to the
Initial Purchaser, but only with reference to information relating to the
Initial Purchaser furnished to any Guarantor or
13
the Company in writing by the Initial Purchaser expressly for use in the
Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Initial Purchaser, in the case of parties indemnified pursuant
to paragraph (a) above, and by the Guarantors and the Company in the case of
parties indemnified pursuant to paragraph (b) above. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses f counsel as contemplated by the
second and third sentences of this paragraph, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Guarantors and the Company, on the one hand, and the
Initial Purchaser, on the other hand, from the offering of such Securities or
(ii) if the allocation
14
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Guarantors
and the Company on the one hand and the Initial Purchaser on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Guarantors and the
Company on the one hand and the Initial Purchaser on the other hand in
connection with the offering of such Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of such
Securities (before deducting expenses) received by the Guarantors and the
Company and the total discounts and commissions received by the Initial
Purchaser in respect thereof bear to the aggregate offering price of such
Securities. The relative fault of the Guarantors and the Company on the one
hand and of the Initial Purchaser on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by any Guarantor or the Company
or by the Initial Purcaser and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
(e) The Guarantors, the Company and the Initial Purchaser agree that
it would not be just or equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, the Initial Purchaser shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities resold by it in the initial placement of
such Securities were offered to investors exceeds the amount of any damages
that the Initial Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations and warranties of the Guarantors and the
Company contained in this Agreement shall remain operative and in full force
and effect regardless of (i) termination of this Agreement, (ii) any
investigation made by or on behalf of the Initial Purchaser or any person
controlling the Initial Purchaser or by or on behalf of any Guarantor or the
Company, their officers or directors or any person controlling any Guarantor
or the Company and (iii) acceptance of and payment for any of the Securities.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
8. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Initial Purchaser, by notice given by it to the
Company, if (a) after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case
15
may be, the New York Stock Exchange, the American Stock Exchange, or the
National Association of Securities Dealers, Inc., (ii) trading of any
securities of any Guarantor or the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis that, in the Initial Purchaser's judgment, is material
and adverse and (b) in the case of any of the events specified in clauses
(a)(i) through (iv), such event singly or together with any other such event
makes it, in the Initial Purchaser's judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the Memorandum.
9. Miscellaneous.
(a) This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
(b) If this Agreement shall be terminated by the Initial Purchaser
because of any failure or refusal on the part of any Guarantor or the Company
to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason any Guarantor or the Company shall be unable
to perform its obligations under this Agreement, or because of any termination
pursuant to Section 8 hereof (other than by reason of a default by the Initial
Purchaser), the Guarantors and the Company will reimburse the Initial
Purchaser for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) reasonably incurred by the Initial Purchaser
in connection with this Agreement or the offering contemplated hereunder.
(c) All notices and other communications under this Agreement shall
be in writing, and, if sent the Initial Purchaser, be mailed, delivered or
sent by facsimile transmission to:
Deutsche Bank Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxx
Facsimile Number: (000) 000-0000
or, if sent to the Company or the Guarantors, will be mailed, delivered or
sent by facsimile transmission to the Company at:
with a copy to:
Amtran, Inc. Cravath, Swaine & Xxxxx
0000 Xxxx Xxxxxxxxxx Xxxxxx Worldwide Plaza, 000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq. Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
Facsimile Number: (000) 000-0000 Facsimile Number: (000) 000-0000
16
(d) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
(e) The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
17
Please confirm your agreement to the foregoing by signing in the
space provided below for that purpose and returning to us a copy hereof,
whereupon this Agreement shall constitute a binding agreement between us.
Very truly yours,
AMTRAN, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice
President & CFO
AMERICAN TRANS AIR, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice
President & CFO
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice
President & CFO
ATA LEISURE CORP. (formerly
ATA Vacations, Inc.)
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice
President & CFO
AMBER TRAVEL, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice
President & CFO
18
CHICAGO EXPRESS AIRLINES, INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxx Xxxxxx
Title: Acting President
AMERICAN TRANS AIR TRAINING
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice
President & CFO
AMERICAN TRANS AIR EXECUJET,
INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice
President & CFO
AMBER AIR FREIGHT CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice
President & CFO
Accepted as of the date first above written:
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxxx Xxx
---------------------------------
Name: Xxxxxx Xxx
Title: Director
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Associate
EXHIBIT A
Form of Registration Rights Agreement
EXHIBIT B
Form of Opinion of
Cravath, Swaine & Xxxxx
(i) No authorization, approval or other action by, and no
notice to, consent of, order of, or filing with, any United States
Federal, New York or, to the extent required under the General
Corporation Law of the State of Delaware, governmental authority or
regulatory body is required for the consummation of the transactions
contemplated by the Purchase Agreement, except such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the Initial
Purchaser;
(ii) (A) The statements in the Memorandum under the caption
"Description of the Notes," insofar as such statements purport to
summarize provisions of the Securities, fairly summarize such
provisions, and (B) the statements in the Memorandum under the
caption "Certain United States Federal Income Tax Consequences,"
insofar as they purport to describe the material tax consequences of
an investment in the Securities, fairly summarize the matters
therein described;
(iii) Assuming (i) the accuracy of the representations and
warranties of the Company, each of the Guarantors and the Initial
Purchaser set forth in the Purchase Agreement, (ii) the due
performance by the Company, each of the Guarantors and the Initial
Purchaser, of the covenants and agreements set forth in the Purchase
Agreement, (iii) the Initial Purchaser's compliance with the
offering and transfer procedures and restrictions described in the
Memorandum and (iv) the accuracy of the representations and
warranties made in accordance with the Purchase Agreement and the
Memorandum by purchasers to whom the Initial Purchaser initially
resells the Securities, the offer, sale and delivery of the
Securities to the Initial Purchaser in the manner contemplated by
the Purchase Agreement and the Memorandum and the initial resale of
the Securities by the Initial Purchaser in the manner contemplated
in the Memorandum and the Purchase Agreement, do not require
registration under the Securities Act of 1933, as amended, it being
understood that no opinion is expressed as to any subsequent resale
of any Securities;
(iv) Neither the Company nor any of the Guarantors is required
to register as an "investment company" and, after giving effect to
the offer, issuance and delivery of the Securities in accordance
with the terms of the Purchase Agreement and the application of the
proceeds thereof as described in the Memorandum, neither the Company
nor any of the Guarantors will be required to register as an
"investment Company" under the Investment Company Act of 1940, as
amended;
(v) Each of the Original Indenture, the First Supplemental
Indenture and the Registration Rights Agreement constitute legal,
valid and binding obligations of the Company and each Guarantor,
enforceable against the Company and each Guarantor in accordance
with their terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar
laws affecting creditors'
2
rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless
of whether such enforceability is considered in a proceeding in
equity or at law);
(vi) The Securities when executed, issued and authenticated in
accordance with the provisions of the Indenture and delivered to the
Initial Purchaser against payment therefor in accordance with the
provisions of the Purchase Agreement, will be legal, valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms and entitled to the benefits of the
Indenture (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether such enforceability is considered in
a proceeding in equity or at law); in expressing the opinion set
forth in this paragraph (vi), such counsel may assume, with the
consent of the Initial Purchaser, that the form of the Securities
will conform to that included in the Indenture; and
(vii) Upon execution and delivery of the First Supplemental
Indenture by the Guarantors and the Company, the Guarantees will be
legal, valid and binding obligations of each of the Guarantors,
enforceable against each of the Guarantors in accordance with their
terms and entitled to the benefits of the Indenture (subject to
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
such enforceability is considered in a proceeding in equity or at
law);
and to such further effect with respect to other legal matters relating to the
Purchase Agreement and the sale of the Securities thereunder as counsel for
the Initial Purchaser may reasonably request.
Such opinion shall also state that, in connection with the
preparation of the Memorandum, such counsel has participated in conferences
with certain officers of, and with the accountants and counsel for, the
Guarantors and the Company concerning the preparation of the Memorandum. Such
opinion may state that although such counsel has made certain inquiries and
investigations in connection with the preparation of the Memorandum, the
limitations inherent in the role of outside counsel are such that such counsel
does not assume responsibility for the accuracy or completeness of the
statements made in the Memorandum, except insofar as the statements relate to
such counsel and except to the extent set forth in paragraph (ii) of such
counsel's opinion dated the date hereof. Subject to the foregoing, such
opinion shall state that such counsel advises the Initial Purchaser that their
work in connection with this matter did not disclose any information that gave
such counsel reason to believe that the Memorandum (except the financial
statements and other information of a statistical, accounting or financial
nature included or incorporated by reference therein, as to which such counsel
does not express any view) as of its date or the date hereof, included or
includes an
3
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
EXHIBIT C
Form of Opinion of the General Counsel
of the Guarantors and the Company
(i) Each of the Guarantors and the Company is a corporation
duly incorporated, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated, with corporate
power and authority under such laws to own, lease and operate its
properties and conduct its business as described in the Memorandum
and to perform its obligations under the Purchase Agreement, the
Registration Rights Agreement, the Securities (with respect to the
Company), the Guarantees (with respect to the Guarantors), and the
Indenture;
(ii) Each of the Guarantors and the Company are duly qualified
to transact business as a foreign corporation and are in good
standing in each other jurisdiction in which they own or lease
property of a nature, or transact business of a type, that would
make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a
Material Adverse Effect;
(iii) ATA is a "citizen of the United States" (as defined in
Section 40102(a)(15) of Title 49 of the United States Code) and is
an air carrier operating under a certificate issued by the Secretary
of Transportation pursuant to Chapter 447 of Title 49, United States
Code, for aircraft capable of carrying 10 or more individuals or
6,000 pounds or more of cargo; there is in force with respect to ATA
an air carrier operating certificate issued pursuant to Part 121 of
the regulations under the Federal Aviation Act; all of the
outstanding shares of capital stock of each of the Guarantors have
been duly authorized and validly issued and are fully paid and
non-assessable and are owned by the Company, free and clear of any
pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind;
(iv) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the valid authorization, issuance and delivery of the Securities,
the valid authorization, execution, delivery and performance by each
of the Guarantors and the Company of the Purchase Agreement and the
Operative Documents, or the consummation by each of the Guarantors
and the Company of the transactions contemplated by the Purchase
Agreement and the Operative Documents, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities;
(v) The execution and delivery by each of the Guarantors and
the Company of the Purchase Agreement and the Operative Documents,
the issuance and sale of the Securities, the consummation by each of
the Guarantors and the Company of the transactions contemplated in
the Purchase Agreement and the Operative Documents, and compliance
by each of the Guarantors and the Company with the terms thereof
will not contravene (i) any provision of applicable law, (ii) the
certificate of incorporation or by-laws of any Guarantor and the
Company, (iii) to such counsel's knowledge, any agreement or other
instrument binding upon any Guarantor or any of its subsidiaries
that is material to such Guarantor and the Company, taken as a
whole, or (iv) to such counsel's
2
knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over, any Guarantor or the
Company;
(vi) Each of the Registration Rights Agreement, the First
Supplemental Indenture and the Indenture has been duly authorized,
executed and delivered by each of the Guarantors and the Company;
(vii) The Purchase Agreement has been duly authorized, executed
and delivered by each of the Guarantors and the Company; and the
sale of the Securities by the Company pursuant to the Purchase
Agreement has been duly authorized;
(viii) There are no legal or governmental proceedings pending
or threatened to which any Guarantor or the Company is a party, or
to which any of the properties of any Guarantor or the Company is
subject, other than proceedings accurately described in all material
respects in the Memorandum and proceedings that would not have a
Material Adverse Effect, or a material adverse effect on the power
or ability of any Guarantor or the Company to perform its
obligations under this Agreement or the Operative Documents, or to
consummate the transactions contemplated by the Memorandum.
(ix) ATA is an "air carrier", ExecuJet is an "air taxi", and
each of them is (and after consummation of the transactions
contemplated herein will be) a "citizen of the United States", in
each case within the Federal Aviation Act of 1958, as amended,
provided that at least 75 percent of the voting interest continues
to be owned or controlled by persons who are citizens of the United
States;
(x) ATA is an air carrier operating under the Certificates of
Public Convenience and Necessity issued by the Department of
Transportation ("DOT") and its predecessor agency the Civil
Aeronautics Board pursuant to ss.401 of the Federal Aviation Act of
1958, as amended, and an Operating Certificate and Operations
Specifications issued by the Federal Aviation Administration ("FAA")
pursuant to 14 C.F.R. Part 121, and ExecuJet is an air taxi holding
a valid registration under Part 298 of the DOT regulations, and an
Operating Certificate and Operations Specifications issued by the
FAA pursuant to 14 C.F.R. Part 135, which licenses, certificates and
permits are necessary for ATA to conduct its business as an air
carrier, and for ExecuJet to conduct its business as an air taxi,
and to the best knowledge of such counsel, no such license,
certificate or permit is the subject of any "show cause" or other
order of, or any proceeding before, or any investigation by, DOT or
FAA (other than proceedings for the renewal of temporary rights), in
which the opinion of such counsel might reasonably result in a final
order impairing the validity of such licenses, certificates and
permits;
(xi) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding by or before any U.S. court
or U.S. government agency involving (A) ATA's DOT Certificates of
Public Convenience and Necessity, ExecuJet's DOT registration, or
either of their FAA Operating Certificates or FAA Operating
Specifications, or (B) the Federal Aviation Act of 1958, as amended,
and the regulations promulgated thereunder ("Aviation Law") which is
of a character expected to impact ATA's ability to
3
continue to do business as an air carrier or ExecuJet's ability to
continue to do business as an air taxi and which would be required
to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus;
(xii) to the best knowledge of such counsel, no consent,
approval, authorization, filing with, or order of any court or
governmental agency or body under Aviation Law is required for
consummation of the transactions contemplated herein.
In addition, counsel shall state that such counsel or lawyers on his
staff have participated in the preparation of the Memorandum and nothing has
come to such counsel's attention that leads him to believe that the Memorandum
as of the date of the Purchase Agreement or at the Closing Date contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein in the light
of the circumstances under which they were made not misleading, except that
such counsel need express no opinion with respect to the financial statements,
schedules and other financial data included in the Memorandum.
