Exhibit 10.2
EXECUTION COPY
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MBIA INSURANCE CORPORATION,
as Insurer
AMERICREDIT FINANCIAL SERVICES, INC.
and
DEUTSCHE BANK SECURITIES INC.
as the Representative of the Underwriters
INDEMNIFICATION AGREEMENT
$1,700,000,000
AmeriCredit Automobile Receivables Trust 2002-E-M
Automobile Receivables Backed Notes
$292,000,000 Class A-1 Notes
$140,000,000 Class A-2-A Notes
$267,000,000 Class A-2-B Notes
$100,000,000 Class A-3-A Notes
$540,000,000 Class A-3-B Notes
$160,000,000 Class A-4-A Notes
$201,000,000 Class A-4-B Notes
Dated as of October 18, 2002
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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.......................................................................4
Section 6. Notice To Be Given....................................................................5
Section 7. Contribution..........................................................................7
Section 8. Notices...............................................................................8
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...........................................................................9
TESTIMONIUM
SIGNATURES AND SEALS
INDEMNIFICATION AGREEMENT
This Agreement, dated as of October 18, 2002, is by and among MBIA
INSURANCE CORPORATION (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
DEUTSCHE BANK SECURITIES INC. 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.
"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 October 18, 2002 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 October
18, 2002, by and among the Insurer, the Issuer, AmeriCredit, the Seller, the
Back-up 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 $1,700,000,000
AmeriCredit Automobile Receivables
Trust 2002-E-M Automobile Receivables Backed Notes $292,000,000 Class A-1 Notes,
$140,000,000 Class A-2-A Notes, $267,000,000 Class A-2-B Notes, $100,000,000
Class A-3-A Notes, $540,000,000 Class A-3-B Notes, $160,000,000 Class A-4-A
Notes, $201,000,000 Class A-4-B 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.
"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.
"PROSPECTUS SUPPLEMENT" means the form of final Prospectus Supplement,
dated October 18, 2002, and filed with the Securities and Exchange Commission on
October 28, 2002.
"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 October 18, 2002, by and among the Issuer, the Seller, the Servicer,
the Back-up 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 Deutsche Bank Securities Inc., Credit Suisse First
Boston Corporation, Bank One Capital Markets, Inc.; Xxxxxx Brothers, Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Wachovia Securities, Inc.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement by and between
AmeriCredit and the Underwriters, dated October 18, 2002.
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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 as of December 31, 2001 and December 31, 2000 and for the
three years ended December 31, 2001 incorporated by reference in the
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
June 30, 2002 incorporated by reference in the 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 Audited Financial Statements, and,
since June 30, 2002 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.
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(f) INSURER INFORMATION. The information in the Prospectus
Supplement as of the date hereof under the captions "THE POLICY" 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 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.
The Underwriters represent and warrant to and agree with AmeriCredit and the
Insurer that the statements in the Prospectus Supplement made in reliance upon
and in conformity with written information relating to the Underwriters
furnished to AmeriCredit specifically for use in the preparation of the
Prospectus Supplement, and acknowledged in writing (referred to herein as the
"Underwriter Information"), are true and correct in all material respects.
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 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 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 with
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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 the Underwriters, 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 the
Repsresentative'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.
SECTION 6. NOTICE TO BE GIVEN.
(a) Except as provided in Section 7 below with respect to
contribution, 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
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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, 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
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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 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
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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 the Underwriters shall be solely responsible for the
Underwriter Information provided by the Underwriters in writing for use in
the Prospectus Supplement and that AmeriCredit shall be responsible for all
other information in the Registration Statement and in the 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.
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: MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Insured Portfolio
Management--Structured
Finance (IPM-SF)
If to AmeriCredit: AmeriCredit Financial Services, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
If to the Representative: Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
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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.
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.
[Remainder of this page intentionally left blank.]
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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.
MBIA INSURANCE CORPORATION
By /s/ Xxx X. Xxxxx
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Assistant Secretary
AMERICREDIT FINANCIAL SERVICES, INC.
By /s/ Xxxxx Xxxxx
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Title Vice President, Structured Finance
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DEUTSCHE BANK SECURITIES INC. for itself
and as representative of the
Underwriters
By /s/ Xxx X. Xxxxxxx
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Title Vice President
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By /s/ Xxxxxxx X. Xxxxxxxx
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Title Director
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