EXHIBIT 10.2
EXECUTION COPY
================================================================================
XL CAPITAL ASSURANCE INC.,
as Insurer
AMERICREDIT FINANCIAL SERVICES, INC.
and
WACHOVIA CAPITAL MARKETS, LLC,
as the Representative of the Underwriters
INDEMNIFICATION AGREEMENT
$1,200,000,000
AmeriCredit Automobile Receivables Trust 2007-A-X
Automobile Receivables Backed Notes
$217,000,000 Class A-1 Notes
$348,000,000 Class A-2 Notes
$248,000,000 Class A-3 Notes
$387,000,000 Class A-4 Notes
Dated as of January 10, 2007
================================================================================
TABLE OF CONTENTS
Page
----
Section 1. Definitions.................................................. 1
Section 2. Representations and Warranties of the Insurer................ 3
Section 3. Agreements, Representations and Warranties of the
Underwriters.............................................. 4
Section 4. Agreements, Representations and Warranties of AmeriCredit.... 4
Section 5. Indemnification.............................................. 5
Section 6. Notice To Be Given........................................... 6
Section 7. Contribution................................................. 7
Section 8. Notices...................................................... 9
Section 9. Governing Law, Etc........................................... 9
Section 10. Insurance Agreement; Underwriting Agreement; Sale and
Servicing Agreement....................................... 9
Section 11. Limitations.................................................. 9
Section 12. Counterparts................................................. 9
Section 13. Nonpetition.................................................. 10
TESTIMONIUM
SIGNATURES AND SEALS
INDEMNIFICATION AGREEMENT
This Agreement, dated as of January 10, 2007, is by and among XL CAPITAL
ASSURANCE INC. (the "Insurer"), as the Insurer under the Note Guaranty Insurance
Policy (the "Policy") issued in connection with the Offered Notes described
below, AMERICREDIT FINANCIAL SERVICES, INC. ("AmeriCredit") and WACHOVIA CAPITAL
MARKETS, LLC., as Representative of the Underwriters (the "Representative").
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the respective meanings stated herein, unless the context clearly
requires otherwise, in both singular and plural form, as appropriate.
Capitalized terms used in this Agreement but not otherwise defined herein will
have the meanings ascribed to such terms in the Sale and Servicing Agreement (as
described below).
"Act" means the Securities Act of 1933, as amended, together with all
related rules and regulations.
"Agreement" means this Indemnification Agreement by and among the Insurer,
AmeriCredit and the Representative of the Underwriters.
"AmeriCredit Party" means AmeriCredit, each of its parents, subsidiaries
and affiliates and any shareholder, director, officer, employee, agent or any
"controlling person" (as such term is used in the Act) of any of the foregoing.
"Final Prospectus Supplement" means the final Prospectus Supplement, dated
January 10, 2007, and filed with the Securities and Exchange Commission on
January___, 2007 in respect of the offering and sale of the Offered Notes.
"Indemnified Party" means any party entitled to any indemnification
pursuant to Section 5 below, as the context requires.
"Indemnifying Party" means any party required to provide indemnification
pursuant to Section 5 below, as the context requires.
"Indenture" means the Indenture dated January 9, 2007 between the Issuer
and the Trustee and Trust Collateral Agent as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
"Insurance Agreement" means the Insurance Agreement, dated as of January 9,
2007, by and among the Insurer, the Issuer, AmeriCredit, the Servicer, the
Custodian, the Seller, the Backup Servicer, the Trustee, the Trust Collateral
Agent and the Collateral Agent.
"Insurer Party" means the Insurer and its respective parents, subsidiaries
and affiliates and any shareholder, director, officer, employee, agent or any
"controlling person" (as such term is used in the Act) of any of the foregoing.
"Losses" means (i) any actual out-of-pocket loss paid by the party entitled
to indemnification or contribution hereunder and (ii) any actual out-of-pocket
costs and expenses paid by such party, including reasonable fees and expenses of
its counsel, to the extent not paid, satisfied or reimbursed from funds provided
by any other Person (provided that the foregoing shall not create or imply any
obligation to pursue recourse against any such other Person).
"Offered Notes" means The $1,200,000,000 AmeriCredit Automobile Receivables
Trust 2007-A-X Automobile Receivables Backed Notes, $217,000,000 Class A-1
Notes, $348,000,000 Class A-2 Notes, $248,000,000 Class A-3 Notes and
$387,000,000 Class A-4 Notes, issued pursuant to the Indenture.
"Person" means any individual, partnership, joint venture, corporation,
trust or unincorporated organization or any government or agency or political
subdivision thereof.
"Preliminary Prospectus Supplement" means the preliminary Prospectus
Supplement, dated January 8, 2007 in respect of the offering and sale of the
Offered Notes.
"Prospectus" means the form of final Prospectus included in the
Registration Statement on each date that the Registration Statement and any post
effective amendment or amendments thereto became effective.
"Registration Statement" means the registration statement on Form S-3 of
AmeriCredit relating to the Offered Notes.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of January 9, 2007, by and among the Issuer, the Seller, the Servicer,
the Backup Servicer and the Trust Collateral Agent.
"Servicer" means AmeriCredit Financial Services, Inc., as Servicer.
"Underwriter Party" means each Underwriter and its parent, subsidiaries and
affiliates and any shareholder, director, officer, employee, agent or
"controlling person" (as such term is used in the Act) of any of the foregoing.
"Underwriters" means Barclays Capital Inc., Wachovia Capital Markets, LLC,
XX Xxxxxx Securities Inc., Xxxxxx Brothers, Inc. and UBS Securities LLC.
"Underwriting Agreement" means the Underwriting Agreement by and among
AmeriCredit, AFS SenSub Corp. and the Representative, on behalf of the
Underwriters, dated January 10, 2007.
2
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE INSURER. The Insurer
represents and warrants to the Underwriters and AmeriCredit as follows:
(a) Organization and Licensing. The Insurer is a duly incorporated and
existing New York stock insurance company licensed to do business in the
State of New York and is in good standing under the laws of such state.
(b) Corporate Power. The Insurer has the corporate power and authority
to issue the Policy and execute and deliver this Agreement and the
Insurance Agreement and to perform all of its obligations hereunder and
thereunder.
(c) Authorization; Approvals. The issuance of the Policy and the
execution, delivery and performance of this Agreement and the Insurance
Agreement have been duly authorized by all necessary corporate proceedings.
No further approvals or filings of any kind, including, without limitation,
any further approvals of or further filings with any governmental agency or
other governmental authority, or any approval of the Insurer's board of
directors or stockholders, are necessary for the Policy, this Agreement and
the Insurance Agreement to constitute the legal, valid and binding
obligations of the Insurer.
(d) Enforceability. The Policy, when issued, and this Agreement and
the Insurance Agreement will each constitute legal, valid and binding
obligations of the Insurer, enforceable in accordance with their terms,
subject to applicable laws affecting the enforceability of creditors'
rights generally and general equitable principles and public policy
considerations as to rights of indemnification for violations of federal
securities laws.
(e) Financial Information. The consolidated financial statements of
the Insurer incorporated by reference in the Preliminary Prospectus
Supplement and the Final Prospectus Supplement (the "Insurer Audited
Financial Statements") fairly present in all material respects the
financial condition of the Insurer as of such date and for the period
covered by such statements in accordance with generally accepted accounting
principles consistently applied. The consolidated financial statements of
the Insurer and its subsidiaries as of September 30, 2006 incorporated by
reference in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement (the "Insurer Unaudited Financial Statements") present fairly in
all material respects the financial condition of the Insurer as of such
date and for the period covered by such statements in accordance with
generally accepted accounting principles applied in a manner consistent
with the accounting principles used in preparing the Insurer Unaudited
Financial Statements, and, since September 30, 2006 there has been no
material change in such financial condition of the Insurer which would
materially and adversely affect its ability to perform its obligations
under the Policy.
(f) Insurer Information. The information in the Preliminary Prospectus
Supplement and the Final Prospectus Supplement under the captions "THE
POLICY"
3
and "THE INSURER" (the "Insurer Information") is limited and does not
purport to provide the scope of disclosure required to be included in a
prospectus for a registrant under the Securities Act of 1933, in connection
with the public offer and sale of securities of such registrant. Within
such limited scope of disclosure, the Insurer Information, as of 2:00 p.m.,
New York City time, on January 10, 2007 (the "Time of Sale") in the case of
the Preliminary Prospectus Supplement, and as of the date of the Final
Prospectus Supplement and as of the Closing Date in the case of the Final
Prospectus Supplement, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(g) No Litigation. There are no actions, suits, proceedings or
investigations pending or, to the best of the Insurer'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 condition
(financial or otherwise) or its operations or would materially and
adversely affect its ability to perform its obligations under this
Agreement, the Policy or the Insurance Agreement.
SECTION 3. AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS.
Each Underwriter severally (and not jointly) represents and warrants to and
agrees with AmeriCredit and the Insurer that the Underwriter Information (as
defined below) as of the Time of Sale in the case of the Preliminary Prospectus
Supplement, and as of the date of the Final Prospectus Supplement and as of the
Closing Date in the case of the Final Prospectus Supplement, does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The term "Underwriter Information" means
(A) with respect to the Final Prospectus Supplement, (i) on the cover page of
the Final Prospectus Supplement, the information in the table under the headings
entitled "Price to Public", "Underwriting Discounts" and "Proceeds to Seller"
and (ii) in the body of the Final Prospectus Supplement and within the section
entitled "Underwriting", (a) the paragraph immediately following the table
listing the Underwriters' respective commitments and (b) the third paragraph
following the second paragraph containing three bulleted sub-paragraphs and (B)
with respect to the Preliminary Prospectus Supplement, in the body of the
Preliminary Prospectus Supplement and within the section entitled
"Underwriting", the third paragraph following the second paragraph containing
the three bulleted sub-paragraphs.
SECTION 4. AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF AMERICREDIT.
AmeriCredit represents, warrants to and agrees with the Insurer and the
Underwriters that:
(a) Registration Statement. The information in the Registration
Statement, the Prospectus and the Final Prospectus Supplement, other than
the Insurer Information and the Underwriter Information, is true and
correct in all material respects and does not contain any untrue statement
of a fact that is material or omit to state a
4
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) Representations and Warranties. Each of the representations and
warranties of AmeriCredit contained in the Insurance Agreement is true and
correct in all material respects, and AmeriCredit hereby makes each such
representation and warranty to, and for the benefit of, the Insurer as if
the same were set forth in full herein.
SECTION 5. INDEMNIFICATION.
(a) The Insurer hereby agrees, upon the terms and subject to the
conditions of this Agreement, to indemnify, defend and hold harmless each
AmeriCredit Party and each Underwriter Party against any and all Losses
incurred by them (A) any untrue statement or alleged untrue statement of
material fact contained in the Insurer Information or (B) an omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that the Insurer Information is
limited and does not purport to provide the scope of disclosure required to
be included in a prospectus for a registrant under the Securities Act of
1933, in connection with the public offer and sale of securities of such
registrant in connection with the offer and sale of securities of such
registered under the Securities Act) or (C) with respect to the offer and
sale of any of the Offered Notes and resulting from the Insurer's breach of
any of its representations and warranties set forth in Section 2 of this
Agreement.
(b) The Representative, on behalf of each Underwriter, hereby agrees,
upon the terms and subject to the conditions of this Agreement, to
indemnify, defend and hold harmless each Insurer Party and each AmeriCredit
Party against any and all Losses incurred by it with respect to the offer
and sale of any of the Offered Notes and resulting from such Underwriter's
breach of any of its representations and warranties set forth in Section 3
of this Agreement.
(c) AmeriCredit hereby agrees, upon the terms and subject to the
conditions of this Agreement, to indemnify, defend and hold harmless each
Insurer Party against any and all Losses incurred by it with respect to the
offer and sale of any of the Offered Notes and resulting from AmeriCredit's
breach of any of its representations and warranties set forth in Section 4
of this Agreement.
(d) Upon the incurrence of any Losses entitled to indemnification
hereunder, the Indemnifying Party shall reimburse the Indemnified Party
promptly upon establishment by the Indemnified Party to the Indemnifying
Party of the Losses incurred.
5
SECTION 6. NOTICE TO BE GIVEN.
(a) Except as provided in Section 7 below with respect to contribution
and Section 10 of this Agreement, the indemnification provided herein by
the Indemnifying Party shall be the exclusive remedy of each Indemnified
Party for the Losses resulting from the Indemnifying Party's breach of a
representation, warranty or agreement hereunder; provided, however, that
each Indemnified Party shall be entitled to pursue any other remedy at law
or in equity for any such breach so long as the damages sought to be
recovered shall not exceed the Losses incurred thereby resulting from such
breach.
(b) In the event that any action or regulatory proceeding shall be
commenced or claim asserted which may entitle an Indemnified Party to be
indemnified under this Agreement, such party shall give the Indemnifying
Party written or facsimile notice of such action or claim reasonably
promptly after receipt of written notice thereof.
(c) Upon request of the Indemnified Party, the Indemnifying 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. The Indemnifying Party may, at its
option, at any time upon written notice to the Indemnified Party, assume
the defense of any proceeding and may designate counsel reasonably
satisfactory to the Indemnified Party in connection therewith, provided
that the counsel so designated would have no actual or potential conflict
of interest in connection with such representation. Unless it shall assume
the defense of any proceeding 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. The Indemnifying Party shall be entitled to participate in the
defense of any such action or claim in reasonable cooperation with, and
with the reasonable cooperation of, each Indemnified Party.
(d) The Indemnified Party will have the right to employ its own
counsel in any such action, but the fees and expenses of such counsel will
be at the expense of such Indemnified Party unless (i) the employment of
counsel by the Indemnified Party at the Indemnifying Party's expense has
been authorized in writing by the Indemnifying Party, (ii) the Indemnifying
Party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action or (iii) the named parties to any such action include the
Indemnifying Party on the one hand and, on the other hand, the Indemnified
Party, and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them
(in which case if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Party,
6
the Indemnifying Party shall not have the right to assume the defense of
such action or proceeding on such Indemnified Party's behalf), in each of
which cases the reasonable fees and expenses of counsel (including local
counsel) will be at the expense of the Indemnifying Party, and all such
fees and expenses will be reimbursed promptly as they are incurred. In the
event that any expenses so paid by the Indemnifying Party are subsequently
determined not to be required to be borne by the Indemnifying Party
hereunder, the party which received such payment shall promptly refund to
the Indemnifying Party the amount so paid by such Indemnifying Party.
Notwithstanding the foregoing, in connection with any one action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
the Indemnifying Party shall not be liable for the fees and expenses of
more than one counsel for all AmeriCredit Parties, more than one counsel
for all Underwriter Parties and more than one counsel for all Insurer
Parties, as applicable.
(e) The Indemnified Parties shall cooperate with the Indemnifying
Parties in resolving any event which would give rise to an indemnity
obligation pursuant to Section 5 hereof in the most efficient manner.
(f) No settlement of any such claim or action shall be entered into
without the consent of each Indemnified Party who is subject to such claim
or action, on the one hand, and each Indemnifying Party who is subject to
such claim or action, on the other hand; provided, however, that the
consent of such Indemnified Party shall not be required if such settlement
fully discharges, with prejudice against the plaintiff, the claim or action
against such Indemnified Party.
(g) Any failure by an Indemnified Party to comply with the provisions
of this Section shall relieve the Indemnifying Party of liability only if
such failure is materially prejudicial to any legal pleadings, grounds,
defenses or remedies in respect thereof or the Indemnifying Party's
financial liability hereunder, and then only to the extent of such
prejudice.
SECTION 7. CONTRIBUTION.
(a) To provide for just and equitable contribution if the
indemnification provided by the Insurer is determined to be unavailable for
an Underwriter Party (other than pursuant to Section 5 or 6 of this
Agreement), or if the indemnification provided by any Underwriter is
determined to be unavailable for any Insurer Party (other than pursuant to
Section 5 or 6 of this Agreement), the Insurer and the Underwriters shall
contribute to the aggregate costs of liabilities arising from any breach of
their respective representations and warranties set forth in this Agreement
on the basis of the relative fault of all Insurer Parties and all
Underwriter Parties.
(b) To provide for just and equitable contribution if the
indemnification provided by the Insurer is determined to be unavailable for
any AmeriCredit Party (other than pursuant to Section 5 or 6 of this
Agreement), or if the indemnification provided by
7
AmeriCredit is determined to be unavailable for any Insurer Party (other
than pursuant to Section 5 or 6 of this Agreement), the Insurer and
AmeriCredit shall contribute to the aggregate cost of liabilities arising
from any breach of their respective representations and warranties set
forth in this Agreement on the basis of the relative fault of all Insurer
Parties and all AmeriCredit Parties.
(c) To provide for just and equitable contribution if the
indemnification provided by the Underwriter is determined to be unavailable
for any AmeriCredit Party (other than pursuant to Section 5 or 6 of this
Agreement), the Underwriter and AmeriCredit shall contribute to the
aggregate costs of liabilities arising from any breach of their respective
representations and warranties set forth in this Agreement on the basis of
the relative fault of all Underwriter Parties and all AmeriCredit Parties.
(d) The relative fault of each Indemnifying Party, on the one hand,
and of each Indemnified Party, on the other hand, shall be determined by
reference to, among other things, whether the breach of, or alleged breach
of, any of its representations and warranties set forth in Section 2, 3 or
4 of this Agreement relates to information supplied by, or action within
the control of, the Indemnifying Party or the Indemnified Party and the
Parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such breach.
(e) The parties agree that the Insurer shall be solely responsible for
the Insurer Information and for the Insurer Financial Statements, that each
Underwriter shall be solely responsible for the Underwriter Information
provided by such Underwriter in writing for use in the Preliminary
Prospectus Supplement and the Final Prospectus Supplement and that
AmeriCredit shall be responsible for all other information in the
Registration Statement, the Preliminary Prospectus Supplement and the Final
Prospectus Supplement.
(f) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(g) The indemnity and contribution agreements contained in this
Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter Party, any
AmeriCredit Party or any Insurer Party, (ii) the issuance of any Offered
Notes or the Policy or (iii) any termination of this Agreement.
(h) Upon the incurrence of any Losses entitled to contribution
hereunder, the contributor shall reimburse the party entitled to
contribution promptly upon establishment by the party entitled to
contribution to the contributor of the Losses incurred.
8
SECTION 8. NOTICES. All notices and other communications provided for under
this Agreement shall be addressed to the address set forth below as to each
party or at such other address as shall be designated by a party in a written
notice to the other party.
If to the Insurer: XL Capital Assurance Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Surveillance
Telecopy: (000) 000-0000
Confirmation: (000) 000-0000
If to AmeriCredit: AmeriCredit Financial Services, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
If to the Representative: Wachovia Capital Markets, LLC
One Wachovia Center
000 X. Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
SECTION 9. GOVERNING LAW, ETC. This Agreement shall be deemed to be a
contract under the laws of the State of New York and shall be governed by and
construed in accordance with the laws of the State of New York without regard to
its conflicts of laws provisions. This Agreement may not be assigned by any
party without the express written consent of each other party. Amendments of
this Agreement shall be in writing signed by each party. This Agreement shall
not be effective until executed by each of the Insurer, AmeriCredit and the
Underwriters.
SECTION 10. INSURANCE AGREEMENT; UNDERWRITING AGREEMENT; SALE AND SERVICING
AGREEMENT. This Agreement in no way limits or otherwise affects the
indemnification obligations of AmeriCredit under (a) the Insurance Agreement,
(b) the Underwriting Agreement or (c) the Sale and Servicing Agreement. To the
extent that this Agreement conflicts with or does not address the relative
rights of the Underwriters and AmeriCredit as between themselves as set forth in
the Underwriting Agreement, the Underwriting Agreement shall govern.
SECTION 11. LIMITATIONS. Nothing in this Agreement shall be construed as a
representation or undertaking by the Insurer concerning maintenance of the
rating currently assigned to its claims-paying ability by Xxxxx'x Investors
Service, Inc. ("Moody's") and/or Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. ("S&P") or any other rating agency
(collectively, the "Rating Agencies").
SECTION 12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall together constitute but one and the same
instrument.
9
SECTION 13. NONPETITION. So long as the Insurance Agreement is in effect,
and for one year following its termination, none of the parties hereto will file
any involuntary petition or otherwise institute any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceeding under any
federal or state bankruptcy or similar law against the Issuer or the Seller.
[Remainder of this page intentionally left blank.]
10
IN WITNESS WHEREOF, the parties hereto have caused this Indemnification
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized, all as of the date first above written.
XL CAPITAL ASSURANCE INC.
By /s/ Xxxxxxxxx X. Xxx
-------------------------------------
Title Senior Managing Director
AMERICREDIT FINANCIAL SERVICES, INC.
By /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Title Senior Vice-President,
Structured Finance
WACHOVIA CAPITAL MARKETS, LLC,
for itself and as representative of the
Underwriters
By /s/ Xxxxxx X. Xxxxx
-------------------------------------
Title Director
AmeriCredit Automobile Receivables Trust 2007-A-X
Indemnification Agreement Signature Page
