EXHIBIT 4.19
AMBAC ASSURANCE CORPORATION,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
CHASE SECURITIES INC.,
and
BANC ONE CAPITAL MARKETS, INC.
INDEMNIFICATION AGREEMENT
AMERICAN TRANS AIR, INC.
PASS-THROUGH CERTIFICATES,
SERIES 2000-1G
Dated as of February 15, 2000
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TABLE OF CONTENTS
(This Table of Contents is for convenience of reference only and
shall not be deemed to be part of this Agreement. All capitalized terms
used in this Agreement and not otherwise defined shall have the meanings
set forth in Section 1 of this Agreement.)
Page
Section 1. Defined Terms....................................................1
Section 2. Other Definitional Provisions....................................1
Section 3. Representations and Warranties of the Initial Purchasers.........2
Section 4. Representations and Warranties of the Policy Provider............2
Section 5. Indemnification..................................................3
Section 6. Amendments, Etc..................................................4
Section 7. Notices..........................................................5
Section 8. Severability.....................................................6
Section 9. Governing Law....................................................6
Section 10. Counterparts....................................................6
Section 11. Headings........................................................6
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INDEMNIFICATION AGREEMENT, dated as of February 15, 2000, (this
"Indemnification Agreement") by and among AMBAC ASSURANCE CORPORATION, (the
"Policy Provider"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED, CHASE SECURITIES INC., and BANC ONE CAPITAL MARKETS, INC.
(the "Initial Purchasers").
Section 1. Defined Terms. Unless the context clearly requires
otherwise, all capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Intercreditor Agreement for
purposes of this Indemnification Agreement; and the following terms shall
have the following meanings:
"Initial Purchasers" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, Chase Securities Inc., and Banc One Capital
Markets, Inc.
"Initial Purchaser Information" has the meaning given such term
in Section 3.
"Insurance Agreement" means the Insurance and Indemnity Agreement
(as the same may be amended, modified or supplemented from time to time),
dated as of the Closing Date, by and among the Policy Provider, ATA and
WTC, not in its individual capacity, but solely as Subordination Agent.
"Intercreditor Agreement" means the Intercreditor Agreement
(2000-1), dated as the date hereof by and among WTC, as Trustee under each
of the Class G Trust and the Class C Trust, the Liquidity Provider, the
Policy Provider and the Subordination Agent.
"Offering Document" means collectively, the Offering Memorandum,
the Exchange Offer Registration Statement (as defined in the Registration
Rights Agreement), the Shelf Registration (as defined in the Registration
Rights Agreement) or any amendment or supplement thereto, all with respect
to the Class G Certificates, that makes reference to the Policy Provider or
the Policy.
"Offering Memorandum" means the Offering Memorandum dated
February 8, 2000.
"Policy Provider" means Ambac Assurance Corporation, as issuer of
the Policy.
"Policy Provider Information" has the meaning given such term in
Section 4.
"Securities Act" means the Securities Act of 1933, including,
unless the context otherwise requires, the rules and regulations
thereunder, as amended from time to time.
"Securities Exchange Act" means the Securities Exchange Act of
1934, including, unless the context otherwise requires, the rules and
regulations thereunder, as amended from time to time.
Section 2. Other Definitional Provisions. The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this
Indemnification Agreement shall refer to this Indemnification Agreement as
a whole and not to any particular provision of this Indemnification
Agreement. Section and subsection references relate to this Indemnification
Agreement unless otherwise specified. The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of
such terms. The words "include" and "including" shall be deemed to be
followed by the phrase "without limitation."
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Section 3. Representation, Warranties and Agreements of the
Initial Purchasers. Each of the Initial Purchasers represents, warrants and
agrees with respect to itself as follows:
(a) Offering Document. The Initial Purchaser will not use,
or distribute to other broker-dealers for use, any Offering
Document in connection with the offer and sale of the Class G
Certificates unless such Offering Document includes such
information relating to the Policy Provider as has been furnished
by the Policy Provider for inclusion therein and has been
approved by the Policy Provider.
(b) Initial Purchaser Information. All material provided by
the Initial Purchaser for inclusion in the Offering Document (as
revised from time to time, and as included in such Offering
Document, the "Initial Purchaser Information"), insofar as such
information relates to the Initial Purchaser, shall be true and
correct in all material respects.
(c) Compliance with Laws. The Initial Purchaser will comply
in all material respects with all legal requirements in
connection with its offers and sales of the Class G Certificates
and will make such offers and sales in the manner provided in the
Offering Document.
(d) Organization, Power, Enforceability. Each Initial
Purchaser is duly organized, validly existing and in good
standing in the jurisdiction of its organization and has the
corporate power and authority to execute and deliver this
Indemnification Agreement and to perform its obligations
hereunder. This Indemnification Agreement constitutes a legal,
valid and binding obligation of each Initial Purchaser,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, receivership and other
similar laws affecting creditors' rights generally and by general
principles of equity and subject to principles of public policy
limiting the right to enforce the indemnification provisions
contained herein insofar as such provisions relate to
indemnification for liabilities arising under federal securities
laws.
Section 4. Representations, Warranties and Agreements of the
Policy Provider. The Policy Provider represents and warrants to, and agrees
with, each of the Initial Purchasers as follows:
(a) Organization and Licensing. The Policy Provider is duly
organized, validly existing and in good standing as a Wisconsin stock
insurance company duly qualified to conduct an insurance business in each
jurisdiction where qualification may be necessary to accomplish the
Transactions (as defined in the Insurance Agreement).
(b) Corporate Power. The Policy Provider has the corporate
power and authority to issue the Policy and execute and deliver this
Indemnification Agreement and the Intercreditor Agreement and to perform
all of its obligations hereunder and thereunder.
(c) Authorization; Approvals. Proceedings legally required
for the issuance of the Policy and the execution, delivery and performance
of this Indemnification Agreement have been taken and licenses, orders,
consents or other
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authorizations or approvals of any governmental boards or bodies legally
required for the enforceability of the Policy have been obtained; any
proceedings not taken and any licenses, authorizations or approvals not
obtained are not material to the enforceability of the Policy.
(d) Enforceability. The Policy, when issued, will
constitute, and each of this Indemnification Agreement and the
Intercreditor Agreement constitutes, a legal, valid and binding obligation
of the Policy Provider, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium, receivership and
other similar laws affecting creditors' rights generally and by general
principles of equity and subject to principles of public policy limiting
the right to enforce the indemnification provisions contained therein and
herein, insofar as such provisions relate to indemnification for
liabilities arising under federal securities laws.
(e) Financial Information. The balance sheet of the Policy
Provider as of December 31, 1998, and the related statements of income,
stockholder's equity and cash flows for the three fiscal years ended
December 31, 1998, and the accompanying footnotes, together with an opinion
thereon dated January 27, 1999, of KPMG LLP, independent certified public
accountants, a copy of which is incorporated by reference into the Offering
Document relating to the Class G Certificates, fairly present in all
material respects the financial condition of the Policy Provider as of such
dates and for the periods covered by such statements in accordance with
generally accepted accounting principles consistently applied. The balance
sheet of the Policy Provider as of September 30, 1999, and the related
statements of operations, stockholder's equity and cash flows for the three
month period ended September 30, 1999, and the accompanying footnotes, a
copy of which is incorporated by reference into the Offering Document,
present fairly in all material respects the financial condition of the
Policy Provider as of such date and for such three month period in
accordance with generally accepted accounting principles consistently
applied. Since September 30, 1999, there has been no material change in
such financial condition of the Policy Provider that would materially and
adversely affect its ability to perform its obligations under the Policy,
this Indemnification Agreement or the Intercreditor Agreement.
(f) Policy Provider Information. The information included
and incorporated by reference in the Offering Memorandum as of the date
hereof under the caption "DESCRIPTION OF THE POLICY PROVIDER"
(collectively, the "Policy Provider Information") is true and correct in
all material respects and does not contain any untrue statement of a
material fact or an omission of any material fact necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading. The Policy Provider will promptly inform ATA and
the Initial Purchasers of any information which would cause the Policy
Provider Information not to be true and correct in all material respects or
to contain an untrue statement of a material fact or an omission of any
material fact necessary in order to make the statements therein not
misleading on the Closing Date. The Policy Provider consents to the
inclusion in the Exchange Offer Registration Statement and the Shelf
Registration Statement of the Policy Provider Information and agrees to
cooperate with the Initial Purchasers and ATA in updating such information
in the manner required by the Securities Act or as may otherwise be
requested by the staff of the Securities and Exchange Commission in
connection with its review of the Exchange Offer Registration Statement or
the Shelf Registration Statement.
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(g) No Litigation. There are no actions, suits, proceedings
or investigations pending or, to the best of the Policy Provider's
knowledge, threatened against it at law or in equity or before or by any
court, governmental agency, board or commission or any arbitrator which, if
decided adversely, would materially and adversely affect its ability to
perform its obligations under the Policy, this Indemnification Agreement or
the Intercreditor Agreement.
Section 5. Indemnification.
(a) Each Initial Purchaser agrees, severally and not
jointly, to indemnify and save harmless the Policy Provider and its
officers, directors, shareholders, employees, agents and each Person, if
any, who controls the Policy Provider within the meaning of either Section
15 of the Securities Act or Section 20 of the Securities Exchange Act from
and against, any and all claims, losses, liabilities (including penalties),
actions, suits, judgments, demands, damages, costs or expenses (including
reasonable fees and expenses of attorneys, consultants and auditors and
reasonable costs of investigations) of any nature arising out of or by
reason of any untrue statement of a material fact contained in the Initial
Purchaser Information with respect to such Initial Purchaser, or arising
out of or by reason of any omission 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, or a breach of any of the
representations and warranties of such Initial Purchaser contained in
Section 3.
(b) The Policy Provider agrees to indemnify and save
harmless each of the Initial Purchasers and its officers, directors,
shareholders, employees, agents and each Person, if any, who controls any
of the Initial Purchasers within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act from and
against, any and all claims, losses, liabilities (including penalties),
actions, suits, judgments, demands, damages, costs or expenses (including
reasonable fees and expenses of attorneys, consultants and auditors and
reasonable costs of investigations) of any nature arising out of or by
reason of any untrue statement of a material fact contained in the Policy
Provider Information, or arising out of or by reason of any omission 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,
or a breach of any of the representations and warranties of the Policy
Provider contained in Section 4.
(c) If any action or proceeding (including any governmental
investigation) shall be brought or asserted against any Person
(individually, an "Indemnified Party" and, collectively, the "Indemnified
Parties") in respect of which the indemnity provided in this Section 5(a)
or (b) may be sought hereunder from any Initial Purchaser, on the one hand,
or the Policy Provider, on the other (each, an "Indemnifying Party"), each
such Indemnified Party shall promptly notify the Indemnifying Party in
writing, and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel satisfactory to the Indemnified Party
and the payment of all expenses. The Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in the
defense thereof at the expense of the Indemnified Party; provided, however,
that the fees and expenses of such separate counsel shall be at the expense
of the Indemnifying Party if (i) the Indemnifying Party has agreed to pay
such fees and expenses, (ii) the Indemnifying Party shall have failed to
assume the defense of such action or proceeding and employ counsel
reasonably satisfactory to the Indemnified Party in any such action or
proceeding or (iii) the named parties to any such action or
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proceeding (including any impleaded parties) include both the Indemnified
Party and the Indemnifying Party, and the Indemnified Party shall have been
advised by counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
Indemnifying Party (in which case, if the Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not
have the right to assume the defense of such action or proceeding on behalf
of such Indemnified Party, it being understood, however, that the
Indemnifying Party shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Indemnified Parties, which firm shall be designated in writing by the
Indemnified Parties). The Indemnifying Party shall not be liable for any
settlement of any such action or proceeding effected without its written
consent to the extent that any such settlement shall be prejudicial to the
Indemnifying Party, but, if settled with its written consent, or if there
is a final judgment for the plaintiff in any such action or proceeding with
respect to which the Indemnifying Party shall have received notice in
accordance with this subsection (c), the Indemnifying Party agrees to
indemnify and hold the Indemnifie Parties harmless from and against any
loss or liability by reason of such settlement or judgment. The Indemnified
Parties shall promptly on demand reimburse the Indemnifying Party for all
expenses incurred hereunder on behalf of the Indemnified Party in any
action or proceeding in which there shall have been a final determination
that the Indemnifying Party had not made a material misstatement or
omission or breached a representation or warranty.
(d) To provide for just and equitable contribution if the
indemnification provided by the Indemnifying Party is determined to be
unavailable or insufficient to hold harmless any Indemnified Party (other
than due to application of this Section), each Indemnifying Party shall
contribute to the losses incurred by the Indemnified Party on the basis of
the relative fault of the Indemnifying Party, on the one hand, and the
Indemnified Party, on the other hand.
Section 6. Amendments, Etc. This Indemnification Agreement may be
amended, modified, supplemented or terminated only by written instrument or
written instruments signed by the parties hereto.
Section 7. Notices. All demands, notices and other communications
to be given hereunder shall be in writing (except as otherwise specifically
provided herein) and shall be mailed by registered mail or personally
delivered and telecopied to the recipient as follows:
(a) To the Policy Provider:
Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Surveillance Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) To the Initial Purchasers:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
A party may specify an additional or different address or
addresses by writing mailed or delivered to the other parties as aforesaid.
All such notices and other communications shall be effective upon receipt.
Section 8. Severability. In the event that any provision of this
Indemnification Agreement shall be held invalid or unenforceable by any
court of competent jurisdiction, the parties hereto agree that such holding
shall not invalidate or render unenforceable any other provision hereof.
The parties hereto further agree that the holding by any court of competent
jurisdiction that any remedy pursued by any party hereto is unavailable or
unenforceable shall not affect in any way the ability of such party to
pursue any other remedy available to it.
Section 9. Governing Law. This Indemnification Agreement shall be
governed by and construed in accordance with the laws of the State of New
York.
Section 10. Counterparts. This Indemnification Agreement may be
executed in counterparts by the parties hereto, and all such counterparts
shall constitute one and the same instrument.
Section 11. Headings. The headings of Sections and the Table of
Contents contained in this Indemnification Agreement are provided for
convenience only. They form no part of this Indemnification Agreement and
shall not affect its construction or interpretation.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, all as of the day and year first above mentioned.
AMBAC ASSURANCE CORPORATION,
as Policy Provider
By:_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: First Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC., ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & CO. INCORPORATED, CHASE
SECURITIES INC., and BANC ONE CAPITAL
MARKETS, INC.,
as Initial Purchasers
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC., acting
on behalf of itself and as the representative
of the other named Initial Purchasers
By:_______________________________
Name:
Title:
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