EXHIBIT 1
$100,000,000
AMTRAN, INC.
___% SENIOR NOTES DUE 2005
UNDERWRITING AGREEMENT
NOVEMBER __, 1998
November ___, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Amtran, Inc., an Indiana corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") $100,000,000 aggregate principal amount of __% Senior Notes due
2005 (the "Securities"), to be issued pursuant to the provisions of an Indenture
dated as of _________, 1998, among the Company, as issuer, American Trans Air,
Inc., Ambassadair Travel Club, Inc., ATA Vacations, Inc., ATA Travel, Inc.,
American Trans Air Training Corporation, American Trans Air ExecuJet, Inc. and
Amber Air Freight Corporation (each an Indiana corporation), as guarantors
(together, the "Guarantors") and First Security Bank, N.A., as Trustee (the
"Trustee"), as supplemented by the First Supplement to the Indenture(the "First
Supplemental Indenture") dated as of ____________, 1998 (the "Indenture").
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.
It is understood that, subject to the conditions hereinafter stated,
the Securities will be sold to the several Underwriters in connection with the
offering and sale of such Securities. Xxxxxx Xxxxxxx & Co. Incorporated and
Xxxxx Xxxxxx Inc. shall act as the managers (the "Managers") for the several
Underwriters.
1. Representations and Warranties of the Company and the Guarantors.
Each of the Guarantors and the Company represents and warrants to and agrees
with each of the Underwriters that:
(a) The Company met the requirements for the use of Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act") at the time the
below-mentioned Registration Statement became effective and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement (file number 333-52655) on such Form, including a basic
prospectus, for registration under the Act of the offering and sale of the
Securities. The Company has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Securities pursuant to Rule 424 of the
Securities Act. The term "Registration Statement" means the registration
statement, including the exhibits thereto, as amended to the date of this
Agreement. The term "Basic Prospectus" means the prospectus included in the
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Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the
Securities, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include
in each case the documents, if any, incorporated by reference therein. The
terms "supplement," "amendment" and "amend" as used herein shall include
all documents deemed to be incorporated by reference in the Prospectus that
are filed subsequent to the date of the Basic Prospectus by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(c) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply, and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, 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 paragraph
do not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Managers expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of
the Trustee.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and the Guarantors (as hereinafter defined), taken as
a whole.
(e) Each of the Guarantors has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the
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corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and the Guarantors, taken as a whole; all of the issued shares of capital
stock of each Guarantor have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned by the Company (either
directly or through wholly-owned subsidiaries), free and clear of all
liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by
the Company and each of the Guarantors.
(g) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
each of the Guarantors and is a valid and binding agreement of the Company
and each of the Guarantors, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity.
(h) The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
(i) The Guarantees have been duly authorized by each of the Guarantors
and, upon execution and delivery if the Indenture by each of the
Guarantors, will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Guarantors, enforceable in accordance
with their terms subject to applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally and general principles of
equity.
(j) The execution and delivery by the Company and each of the
Guarantors of, and the performance by the Company and each Guarantors of
their respective obligations under, this Agreement, the Indenture, the
Securities (in the case of the Company) and the Guarantees (in the case of
the Guarantors) will not contravene any provision of applicable law or the
certificate of incorporation or the by-laws of the Company or any of the
Guarantors or any agreement or other instrument binding upon the Company or
any of the Guarantors that is material to the Company and the Guarantors,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
Guarantor, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company and the Guarantors of their respective
obligations under this Agreement, the Indenture, the Securities (in the
case of the Company) or the Guarantees (in the case of
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the Guarantors), except such as may be required by securities or blue sky
laws of the various states in connection with the offer and sale of the
Securities.
(k) 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 Company and the Guarantors, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(l) There are no legal or governmental proceedings pending or to the
best of the Company's knowledge, 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 that are required to be described in
the Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described or
filed as required.
(m) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(n) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(o) The Company and 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 on the Company and the
Guarantors, taken as a whole.
(p) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and the Guarantors, taken as a whole.
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(q) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Securities registered pursuant to the
Registration Statement.
(r) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba.
(s) American Trans Air, Inc. ("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 are (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.
2. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Securities as soon after this Agreement has been entered into as in the
Managers' judgment is advisable. The terms of the public offering of the
Securities are set forth in the Prospectus.
3. Payment and Delivery. Except as otherwise provided in this Section
3, payment for the Securities shall be made in Federal or other funds
immediately available in New York City against delivery of such Securities for
the respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on ____________, 1998, or at such other time on the same or such other
date, not later than _________, 1998, as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "Closing
Date".
Certificates for the Securities shall be in global or definitive form
and registered in such names and in such denominations as you shall request in
writing not less that two full business days prior to the Closing Date. The
certificates evidencing the Securities shall be delivered to you on the Closing
date for the respective account of each Underwriter, with any transfer taxes
payable in connection with the transfer of the Securities to the Underwriters
duly paid, against payment of the purchase price therefor.
4. Conditions to the Underwriters' Obligations. The several
obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery 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
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rating accorded any of the Company's securities 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
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by (i) an executive officer
on behalf of the Company and (ii) an executive officer on behalf of each of
the Guarantors, to the effect set forth in Section 4(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 conditions on its part
to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx, Swaine & Xxxxx, outside counsel for the Company, dated
the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and each of the Guarantors and is a valid and binding
agreement of the Company and each of the Guarantors, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
general principles of equity;
(iii) the Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
general principles of equity;
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(iv) To the best of such counsel's knowledge, (a) there are not
any pending or threatened actions, suits, proceedings before any court
or governmental agency or authority or any arbitrator against the
Company or any of the Guarantors of a character required to be
disclosed in the Registration Statement or Prospectus which is not
adequately disclosed as required, and (b) there is no contract,
indenture, mortgage, loan agreement, note, lease or other document of
a character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or
filed as required;
(v) the Registration Statement has become effective under the
Securities Act; and any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b);
(vi) the statements (A) in the Prospectus under the caption
"Description of the Notes" and (B) in the Registration Statement under
Item 15, in each case insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the matters
referred to therein;
(vii) no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by the Company and the Guarantors of their respective
obligations under this Agreement, the Indenture, the Securities (in
the case of the Company) or the Guarantees (in the case of the
Guarantors), 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
(viii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended; and
(ix) there are no transfer taxes or other similar fees or charges
under federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance or sale by
the Company of the Securities.
In rendering such opinion, (i) such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States and the laws of the State of New York,
(ii) such counsel may rely as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and the
Guarantors and public officials and (iii) such counsel may state that they
express no opinion as to any matters involving (A) licenses, certificates,
permits or other governmental authorizations issued by or from the
Department of Transportation, the
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Federal Aviation Administration, the Federal Communications Commission or
any other federal or any state transportation or aviation regulatory
authority or (B) the Federal Aviation Act of 1958, as amended. References
to the Prospectus in this paragraph (c) include any supplements thereto at
the Closing Date.
(d) The Underwriters shall have received on the Closing Date a letter
dated the Closing Date from Cravath, Swaine & Xxxxx in the form of Exhibit
A hereto.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx X. Xxxx, General Counsel of the Company, dated the Closing
Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
the Guarantors, taken as a whole;
(ii) each Guarantor has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and the Guarantors, taken as a whole;
(iii) all of the issued shares of capital stock of each Guarantor
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned by the Company (either directly or by
wholly-owned subsidiaries), free and clear of all liens, encumbrances,
equities or claims;
(iv) this Agreement, the Indenture and the Securities have been
duly authorized by all necessary corporate action of the Company;
(v) this Agreement, the Indenture and the Guarantees have been
duly authorized by all necessary corporate action of the Guarantors;
(vi) such counsel (A) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Registration Statement and the Prospectus (except for financial
statements and schedules as to which such counsel need not express any
opinion) complied when so filed as to form in all material respects
with the Exchange Act, and the applicable rules and
8
regulations of the Commission thereunder, (B) is of the opinion that
the Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical data
included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (C) has no reason to believe that (except for
financial statements and schedules and other financial and statistical
data as to which such counsel need not express any belief) the
Registration Statement and the prospectus included therein at the time
the Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (D) has no reason to believe that (except
for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief)
the Prospectus contains any untrue statement of a material fact 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.
(f) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx, Xxxxxxx & Xxxxxxx, special Federal aviation regulatory
counsel for the Company, dated the Closing Date, to the effect that:
(i) 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;
(ii) ATA is an air carrier operating under 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;
(iii) 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.
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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 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;
(iv) to the best knowledge of such counsel, the statements in the
Prospectus under the heading "Business -- Regulation", insofar as such
statements constitute a summary of documents referred to therein or
matters of law, fairly summarize in all material respects the matters
described therein; and
(v) 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, except that ATA must inform DOT when
the stock sale is completed and provide DOT with a list of all
individuals (name, address, principal business, and citizenship) who
hold five percent or more of its voting stock.
(g) The Underwriters shall have received on the Closing Date an
opinion of [Xxxxx & Xxxxxxx], counsel for the Company, dated the Closing
Date, to the effect that:
(i) the issuance and sale of the Securities to the Underwriters
pursuant to this Agreement, the Indenture and the Securities will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or, to the best of such
counsel's knowledge, any agreement or other instrument binding upon
the Company that is material to the Company and the Guarantors, taken
as a whole, or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company; and
(ii) the issuance of Guarantees will not contravene any provision
of applicable law or the certificate of incorporation or by-laws of
any of the Guarantors or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon any of the Guarantors that
is material to Company and the Guarantors, taken as a whole, or, to
the best of such counsel's knowledge, any judgment, order or decree of
any governmental body, agency or court having jurisdiction over any of
the Guarantors.
(h) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx, counsel for the
Underwriters, dated the Closing Date, covering the matters referred to in
Sections 4(c)(i), (ii) and (v) above (as well as the statements in the
Prospectus under "Plan of Distribution") and a letter covering the matters
in Section 4(e)(vi)(C) and (D) above.
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With respect to clauses (B), (C) and (D) of Section 4(e)(vi) above,
Xxxxx X. Xxxx, may state that his opinion and belief is based upon his
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto documents incorporated
by reference and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With
respect to clauses (C) and (D) of Section 4(e)(vi) above, Xxxxxx, Xxxxxxxx,
Xxxxx & Xxxxxxxx may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and
Prospectus and any amendments and supplements thereto (other than the
documents incorporated by reference) and upon review and discussion of the
contents thereof (including documents incorporated by reference), but are
without independent check or verification except as specified. The opinions
of Xxxxxxx, Xxxxxx & Xxxxx and Xxxxx X. Xxxx described in Sections 4(c) and
4(e) above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(i) The Underwriters 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 the Underwriters,
from Ernst & Xxxxx, LLP, 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, or incorporated by
reference into, the Registration Statement and the Prospectus; provided
that the letter delivered on the Closing Date shall use a "cut-off date"
not earlier than the date hereof.
5. Covenants of the Company and the Guarantors. In further
consideration of the agreements of the Underwriters herein contained, the
Company and each of the Guarantors covenant with each Underwriter as follows:
(a) To furnish to you, without charge, [three (3)] signed copies of
the Registration Statement (including exhibits thereto and documents
incorporated by reference) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto but
including documents incorporated by reference) and to furnish to you in New
York City, without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in Section 5(c) below, as many copies of the Prospectus,
any documents incorporated by reference, and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Securities as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall
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occur or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the Underwriters, it
is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish,
at its own expense, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Securities may have
been sold by you on behalf of the Underwriters and to any other dealers
upon request, either amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the Company's security holders and
to the Managers as soon as practicable an earning statement covering a
twelve month period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder. For this purpose hereunder,
compliance with Rule 158 will be deemed to be compliance with Section
11(a).
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Securities (other than (i) the Securities and
(ii) commercial paper issued in the ordinary course of business), without
the prior written consent of the Managers.
(g) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company agrees to pay or
cause to be paid all expenses incident to the performance of their
obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Company's counsel and the Company's accountants in
connection with the registration and delivery of the Securities under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers,
in the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Securities to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost of
printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Securities under state securities
laws and all expenses in connection with the qualification of the
Securities for offer and sale under state securities laws as provided in
Section 5(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in
12
connection with such qualification and in connection with the Blue Sky or
Legal Investment memorandum, (iv) all filing fees and the reasonable fees
and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Securities by the
National Association of Securities Dealers, Inc., (v) all expenses in
connection with any offer and sale of the Securities outside of the United
States, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with offers and sales outside of
the United States, (vi) the cost of printing certificates representing the
Securities, (vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Securities, including, without limitation,
expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any
such consultants, and the cost of any aircraft chartered in connection with
the road show, and (ix) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision
is not otherwise made in this Section. It is understood, however, that
except as provided in this Section, Section 6 entitled "Indemnity and
Contribution", and the last paragraph of Section 8 below, the Underwriters
will pay all of their costs and expenses, including fees and disbursements
of their counsel, stock transfer taxes payable on resale of any of the
Securities by them and any advertising expenses connected with any offers
they may make.
6. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred 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 Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (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 required to be stated therein or necessary to make the statements
therein 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 any Underwriter
furnished to the Company in writing by such Underwriter through the Managers
expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company 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 the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Managers expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
13
(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 Section 6(a) or 6(b), 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 respect of the legal expenses of any indemnified party 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 Xxxxxx Xxxxxxx & Co. Incorporated, in the case of
parties indemnified pursuant to Section 6(a) above, and by the Company, in the
case of parties indemnified pursuant to Section 6(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 of 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 Section 6(a) or
6(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, 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 Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause 6(d)(i) above is not permitted by applicable law, in such
proportion
14
as is appropriate to reflect not only the relative benefits referred to in
clause 6(d)(i) above but also the relative fault of the Company on the one hand
and of the Underwriters 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 Company on the one hand and the Underwriters on the other hand in
connection with the offering of the 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 Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus Supplement, bear to the
aggregate Public Offering Price of the Securities. The relative fault of the
Company on the one hand and the Underwriters 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 the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section 6
are several in proportion to the respective principal amounts of Securities they
have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 6(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph 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 6, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter 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. The remedies provided for in this Section 6 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.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of the
Company and the Guarantors contained in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or the Company, the Guarantors, their
respective officers or directors or any person controlling the Company or any of
the Guarantors and (iii) acceptance of and payment for any of the Securities.
15
7. Termination. This Agreement shall be subject to termination by
notice given by you 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 may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of 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 your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 7(a)(i) through 7(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner contemplated in the
Prospectus.
8. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of the Securities to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the number of Securities set forth opposite their
respective names in Schedule I bears to the aggregate number of Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the number of Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such number of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate number of Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Securities to
be purchased, and arrangements satisfactory to you or the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or the
Guarantors to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company or any of the Guarantors shall be
unable to perform its obligations under this Agreement, the Company will
16
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering contemplated
hereunder.
9. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
10. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
11. Headings. 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.
Very truly yours,
AMTRAN, INC.
By: ____________________________________________
Name:
Title:
AMERICAN TRANS AIR, INC.
By: ____________________________________________
Name:
Title:
AMBASSADAIR TRAVEL CLUB, INC.
By: ____________________________________________
Name:
Title:
AMERICAN TRANS AIR TRAINING
CORPORATION
By: ____________________________________________
Name:
Title:
17
ATA TRAVEL, INC.
By: ____________________________________________
Name:
Title:
ATA VACATIONS, INC.
By: ____________________________________________
Name:
Title:
AMERICAN TRANS AIR EXECUJET, INC.
By: ____________________________________________
Name:
Title:
18
AMBER AIR FREIGHT CORPORATION
By: ____________________________________________
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx Inc.
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: _____________________________________
Name:
Title:
19
SCHEDULE I
NUMBER OF
SECURITIES
UNDERWRITER TO BE PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx Inc.
CIBC Xxxxxxxxxxx
First Chicago Capital Markets, Inc.
---------------
Total...............
===============
EXHIBIT A
[Letterhead of]
CRAVATH, SWAINE & XXXXX
[New York Office]
(000) 000-0000
_________ , 1998
AMTRAN, INC.
$100,000,000 ____% SENIOR NOTES DUE 2005
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
[Repeat first paragraph of main opinion]:
In that capacity, we participated in conferences with certain officers
of, and with the accountants and counsel for, the Company concerning the
preparation of (a) the Registration Statement on Form S-2 Registration No.
333-52655 filed with the Securities and Exchange Commission (the "Commission")
on May 14, 1998, as amended by Amendment No. 1 filed on July 16, 1998 and
Amendment No. 2 filed on July 24, 1998 and by Amendment No. 3 on Form S-3 filed
on August 26, 1998(the "Registration Statement"), for registration of the
Securities under the Securities Act of 1933 (the "Securities Act"); and (b) the
final Prospectus
dated , 199 , relating to the Securities, filed with the Commission pursuant to
Rule 424 (b) of the General Rules and Regulations under the Securities Act
together with the documents incorporated therein by reference, the "Prospectus".
The documents incorporated by reference in the Registration Statement
and Prospectus (the "Incorporated Documents") were prepared and filed by the
Company without our participation.
Although we have made certain inquiries and investigations in
connection with the preparation of the Registration Statement and the
Prospectus, the limitations inherent in the role of the outside counsel are such
that we cannot and do not assume responsibility for the accuracy of completeness
of the statements made in the Registration Statement and Prospectus, except
insofar as such statements relate to us and except to the extent set forth in
paragraph [ ] of our opinion to you dated the date hereof. Subject to the
foregoing, we hereby advise you that our work in connection with this matter did
not disclose any information that gave us reason to believe that: (i) the
Registration Statement, at the time the Registration Statement became effective,
the Incorporated Documents at the time they were filed or the Prospectus, as of
the date hereof, (in each case except the financial statements and other
information of a statistical, accounting or financial nature included therein,
as to which we do not express any view), was not appropriately responsive in all
material respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder, or (ii) the Registration
Statement at the time the Registration Statement became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, at the date hereof, includes an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
3
statements therein, in the light of the circumstances under which they were
made, not misleading (in each case except for the financial statements and other
information of a statistical, accounting or financial nature included therein,
as to which we do not express any view).
We are furnishing this letter to you, as the Managers of the
Underwriters solely for your benefit. This letter may not be relied upon by any
other person or for any other purposed or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
address
4
