EXHIBIT 10.3
EXECUTION COPY
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INSURER INDEMNIFICATION AGREEMENT (the "Insurer Indemnification Agreement" or
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the "Agreement"), dated April 25, 2001, by and among MBIA INSURANCE CORPORATION
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("MBIA"), ISUZU MOTORS ACCEPTANCE CORPORATION, as seller (the "Seller"), POOLED
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AUTO SECURITIES SHELF LLC (the "Depositor"), and FIRST UNION SECURITIES, INC. as
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representative of the several Underwriters (the "Representative").
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The Depositor has purchased from IMAC certain motor vehicle retail
installment sale contracts secured by new and used motor vehicles as described
in the Receivables Purchase Agreement dated as of April 1, 2001 between IMAC as
seller and the Depositor as purchaser (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Receivables Purchase
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Agreement").
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The Issuer will purchase from the Depositor such motor vehicle retail
installment sale contracts secured by new and used motor vehicles as described
in the Sale and Servicing Agreement dated as of April 1, 2001 among the
Depositor, the Issuer, the Master Servicer, the Seller and The CIT Group/Sales
Financing, Inc. (the "Subservicer") (as the same may be amended, restated,
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supplemented or otherwise modified from time to time, the "Sale and Servicing
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Agreement").
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The Issuer will pledge to the Indenture Trustee the collateral pursuant to
the Indenture dated as of April 1, 2001 between the Issuer and the Indenture
Trustee (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Indenture").
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The Depositor has agreed to sell to the underwriters (the "Underwriters")
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listed in Schedule A to the Underwriting Agreement, dated as of April 25, 2001
(the "Underwriting Agreement"), between the Depositor and the Representative,
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the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes (collectively the "Notes") and certain certificates evidencing undivided
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fractional interests in the Trust (the "Certificates") (the Notes and the
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Certificates, collectively the "Securities"). The Securities are secured by the
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assets of the Trust.
In anticipation of the public offering and sale of the Securities, the
Depositor as registrant on behalf of the Trust, filed with the Securities and
Exchange Commission (the "Commission") a registration statement No. 333-45546
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and certain amendments thereto on Form S-3 for the registration under the
Securities Act of 1933, as amended (the "Act") of the Securities. The
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registration statement, including exhibits and all amendments thereto, in the
form in which it became effective under the Act on December 20, 2000 (the
"Effective Date"), is referred to herein as the "Registration Statement". The
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prospectus supplement dated April 25, 2001 (the "Prospectus Supplement"),
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supplementing the Prospectus dated April 25, 2001 (the "Prospectus"), in the
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form in which it was filed with the Commission pursuant to Rule 424(b), together
with the Registration Statement are referred to herein as the "Offering
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Documents".
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MBIA is authorized to transact a financial guaranty insurance business
in the State of New York and has agreed to issue to the Indenture Trustee a
financial guaranty insurance policy (the "Policy") for the benefit of the
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holders of the Securities.
MBIA provided certain information and financial statements to the
Depositor for inclusion in or incorporation by reference into the Prospectus
Supplement. Such information and financial statements are presented under the
caption "Description of the Insurer" in the Prospectus Supplement or
incorporated by reference therein. Such information, to the extent included in
the Prospectus Supplement or incorporated by reference therein, is referred to
herein as the "MBIA Information". MBIA reviewed the Prospectus Supplement and
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approved the presentation of the MBIA Information therein.
Capitalized terms used herein but not otherwise defined shall have the
meanings assigned thereto in the Prospectus Supplement or the Underwriting
Agreement.
For good and valuable consideration, receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. MBIA Agreements and Representations. MBIA agrees and represents
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as follows:
(a) MBIA is a duly incorporated and validly existing New York
domiciled stock insurance company which is licensed, under the laws of the
State of New York, to write financial guarantee insurance and is in good
standing, qualified or licensed to do business in all other jurisdictions
in which such good standing, qualification or licensing is necessary,
except for any state where failure to be so qualified, licensed or in good
standing would not materially and adversely affect MBIA's ability to
perform its obligations under the Policy.
(b) MBIA has the corporate power and authority to issue the
Policy and execute and deliver this Agreement and the Insurance Agreement
and to perform all its obligations hereunder and thereunder.
(c) 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 action (corporate and other). No further
approvals or filings of any kind (other than filing of the Policy with the
Superintendent of Insurance of the New York State Insurance Department
within 30 days following the issuance of the Policy), including, without
limitation, any further approvals of or further filing with any
governmental agency or other governmental authority, or any approval of
MBIA's board of directors or stockholders, are necessary for the Policy to
constitute the legal, valid and binding obligation of MBIA.
(d) The Policy, when issued and, assuming due authorization,
execution and delivery of this Agreement by the parties hereto (other than
MBIA), this Agreement and the Insurance Agreement, will constitute the
legal, valid and binding obligations of MBIA, enforceable in accordance
with their respective terms, subject, as to the enforcement of remedies, to
(a) applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforceability of creditors' rights generally
and to general principles of equity, in the event of such an occurrence
with respect to MBIA; (b) the qualification that the remedy of specific
performance may be
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subject to equitable defenses and to the discretion of the court before
which any proceedings with respect thereto may be brought; and (c) the
enforceability of rights to indemnification under this Agreement which may
be subject to limitations of public policy under applicable securities
laws.
(e) The MBIA Information in the Prospectus Supplement on the date
thereof did not, and on May 3, 2001 (the "Closing Date"), will not, contain
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any untrue statement of a material fact or omit 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 Policy and any amendments thereto shall be filed with the
Superintendent of the New York State Insurance Department within 30 days of
their use, if not previously so filed.
(g) There are no actions, suits, proceedings or investigations
pending or, to the best of MBIA'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 operations
of it or would materially and adversely affect its ability to perform its
obligations under this Agreement, the Policy or the Insurance Agreement.
(h) The consolidated financial statements of MBIA, a wholly owned
subsidiary of MBIA Inc., and its subsidiaries as of December 31, 2000 and
December 31, 1999 and for each of the three years in the period ended
December 31, 2000 incorporated by reference in the Prospectus Supplement ,
present fairly in all material respects the financial condition of MBIA and
its subsidiaries as of such date and for the period covered by such
statements in accordance with generally accepted accounting principals
consistently applied and, since December 31, 2000, there has been no
material change in such financial condition of MBIA which would materially
and adversely affect the ability of MBIA to perform its obligations under
the Policy.
2. Underwriters' Agreement and Representations.
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(a) Each Underwriter severally but not jointly agrees and
represents to MBIA, with respect to the offering of the Securities, that
such Underwriter will not use any offering materials other than the
Prospectus, or any supplement thereto, including without limitation the
Prospectus Supplement unless such revised offering materials include such
information relating to MBIA as is reasonably required under the Act and
the rules and regulations promulgated by the Commission thereunder, which
information has been furnished by MBIA for inclusion therein and has been
approved by MBIA in writing, such approval not to be unreasonably withheld.
(b) Each Underwriter severally but not jointly agrees and
represents to MBIA that the Underwriting Information (as defined in Section
5(c) below) on the date of the Prospectus Supplement did not, and on the
Closing Date, will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to
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make the statements therein, in the light of the circumstances under which
they were made, not misleading.
3. Depositor's Representations and Warranties. The Depositor
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represents and warrants the following:
(a) The Registration Statement has been filed with, and has been
declared effective by, the Commission and the Prospectus and the Prospectus
Supplement have been filed with the Commission.
(b) Except for the MBIA Information, the Underwriting Information
(as defined in Section 5(c) below), the Subservicer Information (as defined
in Section 5(b) below) and the Seller Information (as defined in Section
5(b) below), (i) the Registration Statement on the Effective Date, did 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, and (ii) neither the Prospectus nor the Prospectus
Supplement on the date thereof did, and on the Closing Date neither the
Prospectus nor the Prospectus Supplement will, contain any untrue statement
of a material fact or omit 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.
(c) As of the Closing Date, the Depositor's representations and
warranties contained in the Basic Documents are true and correct in all
material respects.
4. Seller's Representations and Warranties. The Seller represents and
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warrants the following:
(a) With respect to the Seller Information and the Subservicer
Information, each as defined in Section 5(b) below, neither the Prospectus
nor the Prospectus Supplement on the date thereof did, and on the Closing
Date neither the Prospectus nor the Prospectus Supplement will, contain any
untrue statement of a material fact or omit 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.
(b) As of the Closing Date, the Seller's representations and
warranties contained in the Basic Documents are true and correct in all
material respects.
5. Indemnification and Contribution.
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(a) MBIA agrees to indemnify and hold harmless each of the
Seller, the Depositor, and each Underwriter against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), any other Federal or state statutory law
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or regulation, at common law or otherwise, as incurred, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the MBIA Information included in
or incorporated by reference in the Prospectus Supplement, or, to the
extent approved by MBIA in writing, in any
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amendment or supplement to the Prospectus or the Prospectus Supplement, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability which
MBIA may otherwise have.
(b) The Seller agrees to indemnify and hold harmless MBIA against
any and all losses, claims, damages or liabilities, joint or several, to
which it may become subject under the Act, the Exchange Act, any other
Federal or state statutory law or regulation, at common law or otherwise,
as incurred, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement under (i) the headings "Summary-Seller and Master
Servicer", "Risk Factors-geographic concentration may result in more risk
to you", "The Receivables Pool" and "The Seller and Master Servicer"
(collectively, the "Seller Information"), and (ii) the heading "The
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Subservicer" (the "Subservicer Information") included in the Prospectus, or
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in any amendment thereof or supplement thereto or in the Prospectus
Supplement, or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state in the
Seller Information or in the Subservicer Information a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action. This
indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
(c) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless MBIA against any and all losses, claims,
damages or liabilities, joint or several, to which it may become subject
under the Act, the Exchange Act, any other Federal or state statutory law
or regulation, at common law or otherwise, as incurred, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the second, fourth and fifth
paragraphs under the headings "Underwriting" and the third, fourth, fifth
and sixth sentences under the caption "Risk Factors - The absence of a
secondary market for the securities could limit your ability to resell the
securities" (the "Underwriting Information"), included in the Prospectus
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Supplement, or in any amendment or supplement to the Prospectus Supplement,
or arise out of or are based upon the omission or alleged omission to state
in the Underwriting Information a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
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(d) The Depositor agrees to indemnify and hold harmless MBIA
against any and all losses, claims, damages or liabilities, joint or
several, to which it may become subject under the Act, the Exchange Act,
any other Federal or state statutory law or regulation, at common law or
otherwise, as incurred, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or in any amendment thereof or
supplement thereto, or in the Prospectus, or in any amendment thereof or
supplement thereto or in the Prospectus Supplement, or in any amendment
thereof or supplement thereto, or arise out of or are based upon, in the
case of the Registration Statement, the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and in the case of the
Prospectus or the Prospectus Supplement, the omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Depositor will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with the MBIA Information, the
Subservicer Information, the Underwriting Information or the Seller
Information. This indemnity agreement will be in addition to any liability
which the Depositor may otherwise have.
(e) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 5, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party except to the extent the indemnifying party is
prejudiced thereby. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled, at its own
expense, to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified
party to assume the defense of any such action, the indemnifying party will
not be liable to such indemnified party under this Section 5 for any legal
or other expenses subsequently reasonably incurred by such indemnified
party in connection with the defense of any such action other than
reasonable costs of investigation unless, (i) the defendants in any such
action include both the indemnified party and the indemnifying party, and
the indemnified party shall have reasonably concluded that there may be
legal defenses available to it that are different from or additional to
those available to the indemnifying party, or one or more indemnified
parties, in which event the indemnified party shall have the right to
select separate counsel (in addition to any local counsel) to assert such
legal defenses and to otherwise participate in the defense of such action
on behalf and under the control of the indemnified party, (ii) the
indemnifying party shall not have employed counsel
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reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party; then, in any such event, the indemnifying party shall be liable to
such indemnified party under this Section 5 for any legal and other
expenses subsequently incurred by such indemnified party in connection with
the defense of any such action including the reasonable costs of
investigation. 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 or threatened proceeding.
(f) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a), (b), (c), or (d) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a), (b), (c), or (d) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Seller, the
Depositor, the Underwriters and MBIA from the offering and sale of the
Securities or (ii) if the allocation provided in clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Seller, the Depositor, the Underwriters and
MBIA in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, or actions in respect thereof, as
well as any other relevant equitable considerations. The relative benefits
received by the Depositor, MBIA, the Seller, and the Underwriters shall be
deemed to be in the same respective proportion as (i) an amount equal to
(x) the total net proceeds to the Depositor from the sale of the Securities
before deducting expenses, minus (y) the sum of the purchase price paid by
the Depositor to the Seller pursuant to Section 2.02 of the Receivables
Purchase Agreement (the "Purchase Price") bears to (ii) the total premiums
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received by MBIA, (iii) the Purchase Price received by the Seller, and (iv)
the total underwriting discounts and commissions to such Underwriter as
specified on the cover of the Prospectus Supplement in connection with the
offering and sale of the Securities, as the case may be. Relative fault
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
Seller, the Depositor, MBIA, or each of the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages, or
liabilities referred to in the first sentence of this subsection (f) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (f).
Notwithstanding the provisions of this subsection (f), no Underwriter shall
be required to contribute to MBIA hereunder any amount in excess of the
amount of the underwriting discount received by it under the Underwriting
Agreement. No person guilty of fraudulent misrepresentation (within the
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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 obligations of the Seller, the Depositor, and the
Underwriters under this Section 5 shall extend, upon the same terms and
conditions, to each person, if any, who controls MBIA within the meaning of
the Act; and the obligations of MBIA under this Section 5 shall extend,
upon the same terms and conditions, to each person, if any, who controls
the Seller, the Depositor, or any Underwriter within the meaning of the
Act.
6. Representations and Indemnities to Survive. The agreements,
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representations, warranties, indemnities and other statements of the parties
hereto in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any other parties hereto or any of the officers,
directors or controlling persons referred to in Section 5 hereof, and will
survive delivery of and payment for the Securities. The provisions of Section 5
hereof shall survive the termination or cancellation of this Agreement.
7. Notices. All communications hereunder shall be in writing and
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addressed to the following or to such other address or facsimile as set forth in
a written notice delivered by a party to each other party.
If to the Depositor:
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Pooled Auto Securities Shelf LLC
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
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Xxxxx Xxxxxxx, Esq.
First Union Corporation
Legal Department
000 0/xx/ Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Seller:
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Isuzu Motors Acceptance Corporation
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
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Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Underwriters:
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First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, XX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to MBIA:
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MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management
Structured Finance
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
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Xxxx Xxxxxxx
000 Xxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
8. Miscellaneous. This Agreement is to be governed by, and
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construed in accordance with, the laws of the State of New York. It shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns and the and controlling persons referred to in Section 5
hereof, and no other person shall have any right or obligation hereunder. This
Agreement supersedes all prior agreements and understandings relating to the
subject matter hereof. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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9. Counterparts. This Agreement may be executed in counterparts by
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the parties hereto, and each such counterpart shall be considered an original
and all such counterparts shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Insurer
Indemnification Agreement, all as of the day and year first above mentioned.
MBIA INSURANCE CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Assistant Secretary
ISUZU MOTORS ACCEPTANCE CORPORATION,
as Seller
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
President
POOLED AUTO SECURITIES SHELF LLC
as Depositor
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Vice President
FIRST UNION SECURITIES, INC.
as Representative for the Underwriters
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Vice President
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