INDEMNIFICATION AGREEMENT between FINANCIAL GUARANTY INSURANCE COMPANY, as Insurer and DEUTSCHE BANK SECURITIES INC. as Representative of the Underwriters Dated as of September 14, 2006
Exhibit 10.2
EXECUTION COPY
between
FINANCIAL GUARANTY INSURANCE COMPANY,
as Insurer
as Insurer
and
DEUTSCHE BANK SECURITIES INC.
as Representative of the Underwriters
as Representative of the Underwriters
Dated as of September 14, 2006
TABLE OF CONTENTS
| Page | ||||||
Section 1. |
Definitions | 1 | ||||
Section 2. |
Representations and Warranties of the Insurer | 3 | ||||
Section 3. |
Representations, Warranties and Agreements of the Underwriters | 4 | ||||
Section 4. |
Indemnification | 5 | ||||
Section 5. |
Indemnification Procedures | 5 | ||||
Section 6. |
Contribution | 6 | ||||
Section 7. |
Miscellaneous | 7 | ||||
INDEMNIFICATION AGREEMENT (as may be amended, modified or supplemented from time to time, this
“Agreement”) dated as of September 14, 2006, by and among FINANCIAL GUARANTY INSURANCE COMPANY, as
insurer (the “Insurer”) and DEUTSCHE BANK SECURITIES INC., as representative of the several
Underwriters named in the Underwriting Agreement referred to herein.
Section 1. Definitions. Capitalized terms used but not otherwise defined herein shall have
the meanings specified in the Sale and Servicing Agreement. For purposes of this Agreement, the
following terms shall have the meanings provided below:
“Agreement” means this Indemnification Agreement, as amended from time to time.
“AmeriCredit Parties” means the Issuer, the Servicer and the Seller.
“Closing Date” means September 26, 2006.
“Date of Issuance” means the date on which the Policy is issued as specified therein.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, together with all
related rules and regulations.
“Federal Securities Laws” means the Securities Act, the Exchange Act, the U.S. Trust Indenture
Act of 1939, the U.S. Investment Company Act of 1940 and the U.S. Investment Advisers Act of 1940,
each as amended from time to time, and the rules and regulations in effect from time to time under
such Acts.
“Indemnified Party” means any party entitled to any indemnification pursuant to Section 4
hereof.
“Indemnifying Party” means any party required to provide indemnification pursuant to Section 4
hereof.
“Indenture” means the Indenture dated as of September 18, 2006, by and between the Issuer and
the Trustee.
“Insurance Agreement” means the Insurance Agreement dated as of September 18, 2006, among the
Insurer, AmeriCredit Automobile Receivables Trust 2006-B-G, as Issuer, AFS SenSub Corp., as Seller,
AmeriCredit Financial Services, Inc., as Servicer, and ▇▇▇▇▇ Fargo Bank, National Association, as
Trustee.
“Insurer Agreements” means this Agreement and the Insurance Agreement.
“Insurer Information” means the information in the Preliminary Prospectus Supplement and the
Prospectus Supplement regarding the Insurer and the Policy, which consists solely of the
information set forth under the captions “The Insurer” and “The Policy” in the Preliminary
Prospectus Supplement and the Prospectus Supplement, and the consolidated financial statements
of the Insurer and subsidiaries as of December 31, 2005 and December 31, 2004 and for the years
ended December 31, 2005 and 2004, and for the periods from December 18, 2003 through December 31,
2003 and from January 1, 2003 through December 17, 2003, and the unaudited consolidated financial
statements of the Insurer and subsidiaries as of June 30, 2006 and for the three and six month
periods ended June 30, 2006 and 2005, in each case as provided to the Depositor for incorporation
by reference in the Preliminary Prospectus Supplement and the Prospectus Supplement. The Insurer
Information does not include any other information. The Insurer has provided the Insurer
Information in connection with its role as credit enhancer, which consists solely of the obligation
to pay claims, if any, under and in accordance with the express terms of the Policy.
“Insurer Party” means any of the Insurer, its subsidiaries and Affiliates, and any
shareholder, director, officer, employee, agent or “controlling person,” within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, of any of the foregoing.
“Losses” means (a) 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 incurred
by the party entitled to indemnification or contribution hereunder, to the extent not paid,
satisfied or reimbursed from funds provided by any other Person other than an Affiliate of such
party (provided that the foregoing shall not create or imply any obligation to pursue recourse
against any such other Person), plus (b) interest on the amount paid by the party entitled to
indemnification or contribution from the date of such payment to the date of payment by the party
who is obligated to indemnify or contribute hereunder at the statutory rate applicable to judgments
for breach of contract.
“Offering Document” means, collectively, the Preliminary Prospectus Supplement, dated
September 12, 2006 (the “Preliminary Prospectus Supplement”), the Prospectus Supplement, dated
September 14, 2006 (the “Prospectus Supplement”), and the Prospectus, dated April 28, 2006 (the
“Prospectus”), of the Depositor, in respect of the offering and sale of the Notes, any amendment or
supplement thereto, and any other offering document in respect of the Notes that makes reference to
the Policy.
“Policy” means the Financial Guaranty Insurance Policy No. 06030109 dated September 26, 2006,
including any endorsements thereto, issued by the Insurer with respect to the Notes.
“Representative” means Deutsche Bank Securities Inc.
“Securities Act” means the Securities Act of 1933, as amended.
“Transaction Documents” means this Agreement, the Indenture, the Notes, the Sale and Servicing
Agreement, the Purchase Agreement, the Custodian Agreement, the Trust Agreement, the Insurance
Agreement, the Spread Account Agreement and all other documents and certificates delivered in
connection therewith except for the Policy.
“Trustee” means ▇▇▇▇▇ Fargo Bank, National Association, or any successor Trustee under the
Indenture.
2
“Underwriter Information” means (A) with respect to the Prospectus Supplement, (i) on the
cover of the 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
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.
“Underwriter Party” means, with respect to each of the Underwriters, any of the following:
each Underwriter, its parent, subsidiaries and Affiliates and any shareholder, director, officer,
employee, agent or “controlling person,” within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, of any of the foregoing.
“Underwriters” means, the several Underwriters named in the Underwriting Agreement.
“Underwriting Agreement” means the Underwriting Agreement dated September 14, 2006, among the
Seller, AmeriCredit Financial Services, Inc. and the Representative, on behalf of the several
Underwriters, with respect to the offer and sale of the Notes, as amended, modified or supplemented
from time to time.
Section 2. Representations and Warranties of the Insurer. The Insurer represents and warrants
to, and agrees with, each Underwriter as follows:
(a) Organization and Licensing. The Insurer is a duly organized, validly existing and
in good standing New York stock insurance corporation duly qualified to conduct an insurance
business in the State of New York.
(b) Corporate Power. The Insurer has the corporate power and authority to issue the
Policy and execute and deliver this Agreement and to perform all of its obligations
hereunder and thereunder.
(c) Authorization; Approvals. All proceedings legally required for the execution,
delivery and performance of the Policy and this Agreement have been taken and all licenses,
orders, consents or other authorizations or approvals of the Insurer’s Board of Directors or
stockholders or any governmental boards or bodies legally required for the enforceability of
the Policy and this Agreement have been obtained or are not material to the enforceability
of the Policy and this Agreement.
(d) Enforceability. The Policy, when issued, will constitute the legal, valid and
binding obligation of the Insurer, enforceable in accordance with its terms, subject to
insolvency, reorganization, moratorium, receivership and other similar laws affecting
creditors’ rights generally and by general principles of equity.
(e) No Conflict. The execution by the Insurer of the Policy and this Agreement will
not, and the performance of the provisions thereof and hereof will not, conflict with or
result in a breach of any of the terms, conditions or provisions of the
3
Certificate of Incorporation or the Amended By Laws of the Insurer, or any restriction
contained in any contract, agreement or instrument to which the Insurer is a party or by
which it is bound; constitute a default under any of the foregoing which would materially
and adversely affect its ability to perform its obligations under the Policy or this
Agreement.
(f) Financial Information. The consolidated financial statements of the Insurer and
its subsidiaries as of December 31, 2005 and December 31, 2004 and for the years ended
December 31, 2005 and 2004, and for the periods from December 18, 2003 through December 31,
2003 and from January 1, 2003 through December 17, 2003 and the accompanying notes, together
with an opinion thereon of Ernst & Young LLP, independent registered public accounting firm,
a copy of which has been delivered to the Depositor to be incorporated by reference into the
registration statement relating to the Prospectus Supplement, present fairly in all material
respects the financial condition of the Insurer as of such dates and for the periods covered
by such statements in accordance with generally accepted accounting principles consistently
applied. The unaudited consolidated financial statements of the Insurer and its
subsidiaries as of June 30, 2006 and for the three and six month periods ended June 30, 2006
and 2005, and the accompanying notes, a copy of which has been delivered to the Depositor to
be incorporated by reference into the registration statement relating to the Prospectus
Supplement, present fairly in all material respects the financial condition of the Insurer
as of such dates and for the periods covered by such statements in accordance with generally
accepted accounting principles consistently applied. Since June 30, 2006, there has been no
material change in such financial condition of the Insurer that would materially and
adversely affect its ability to perform its obligations under the Policy.
(g) Insurer Information. The Insurer Information is true and correct in all material
respects and does not contain any untrue statement of a material fact.
Section 3. Representations, Warranties and Agreements of the Underwriters. The Underwriters
each represents and warrants to, and agrees with, severally, to the Insurer as follows:
(a) It will make offers and sales of the Notes in compliance with all applicable legal
requirements and only as described in the Offering Document and the Underwriting Agreement.
(b) It will not use, or distribute to any Person for use, or permit the use of, any
Offering Document in connection with the offer and sale of the Notes unless such Offering
Document includes or incorporates by reference such information relating to the Insurer as
has been furnished by the Insurer for inclusion therein and the information therein or
incorporated by reference therein concerning the Insurer has been approved by the Insurer in
writing. It will not include any information relating to the Insurer except as furnished by
the Insurer. The Insurer hereby consents to the inclusion of the Insurer Information in the
Prospectus Supplement.
4
(c) It has the corporate power and authority to execute and deliver this Agreement and
to perform all of its obligations hereunder.
(d) All proceedings legally required for the execution, delivery and performance of
this Agreement have been taken and all licenses, orders, consents or other authorizations or
approvals of its Board of Directors or stockholders or any governmental boards or bodies
legally required for the enforceability of this Agreement have been obtained or are not
material to the enforceability of this Agreement.
(e) The Underwriter Information is true and correct in all material respects and does
not contain any untrue statement of a material fact.
Section 4. Indemnification.
(a) The Insurer agrees, upon the terms and subject to the conditions provided herein,
to pay and protect, indemnify, defend and save harmless the Underwriter Parties against any
and all Losses of any nature arising out of or by reason of (i) any untrue statement or
alleged untrue statement of a material fact contained in the Insurer Information, (ii) any
omission or alleged omission to state a material fact required to be stated, or necessary to
make the statements, in light of the circumstances under which they were made, not
misleading, in the Insurer Information or (iii) a breach of any of the representations,
warranties or agreements of the Insurer contained in Section 2 hereof.
(b) Each Underwriter hereby agrees, severally and not jointly, to pay and protect,
indemnify, defend and save harmless each Insurer Party against any and all Losses of any
nature arising out of or by reason of (i) any untrue statement or alleged untrue statement
of a material fact contained in the Underwriter Information, (ii) any omission or alleged
omission to state a material fact required to be stated, or necessary to make the
statements, in light of the circumstances under which they were made, not misleading, in the
Underwriter Information or (iii) a breach of any of the representations, warranties or
agreements of such Underwriter contained in Section 3 hereof.
(c) Upon the incurrence of any Losses for which a party is 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.
(d) The indemnity agreements contained in this Section 4 shall be in addition to any
liability which any Indemnifying Party may otherwise have to an Indemnified Party.
Section 5. Indemnification Procedures. 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 telegraphic notice of such
action or claim reasonably promptly after receipt of written notice thereof; provided, however,
that the failure to notify the Indemnifying Party shall not relieve it from any liability it may
have to an Indemnified Party. If any such action or claim shall be brought against an Indemnified
Party, and it shall notify the Indemnifying Party thereof, the
5
Indemnifying Party, upon the request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party and shall pay the fees and
disbursements of such counsel related to such proceeding. The Indemnified Party will have the
right to employ its own counsel in any such action in addition to the counsel retained by the
Indemnifying Party for the benefit of the Indemnified Party, but the fees and expenses of such
counsel will be at the expense of such Indemnified Party, unless (a) the employment of counsel by
the Indemnified Party at the Indemnifying Party’s expense has been authorized in writing by the
Indemnifying Party, (b) the Indemnifying Party has not in fact employed counsel reasonably
satisfactory to the Indemnified Party within a reasonable time after receiving notice of the
commencement of the action, or (c) the named parties to any such action or proceeding (including
any impleaded parties) include both the Indemnifying Party and one or more Indemnified Parties, and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them (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 all Underwriter Parties and one such firm for all
Insurer Parties, as the case may be, in addition to local counsel (if necessary), which firm shall
be designated in writing by the Representative in respect of the Underwriter Parties and by the
Insurer in respect of the Insurer Parties), in each of which cases the fees and expenses of counsel
will be at the expense of the Indemnifying Party and all such fees and expenses will be reimbursed
promptly as they are incurred. The Indemnifying Party shall not be liable for any settlement of
any such claim or action unless the Indemnifying Party shall have consented thereto or be in
default in its obligations hereunder. 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 prejudicial to the position of the Indemnifying Party and then only to the extent of such
prejudice.
Section 6. Contribution.
(a) To provide for just and equitable contribution if the indemnification provided by
an 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 (i) on the basis of the
relative benefit of the Indemnifying Party, on the one hand, and the Indemnified Party, on
the other hand or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, on the basis of the relative fault of the Indemnifying Party, on the one
hand, and the Indemnified Party, on the other hand; provided, that no Underwriter shall be
liable for any amount in excess of the aggregate sales price of the Notes paid to such
Underwriter by a purchaser thereof less the price paid therefor by such Underwriter and the
Insurer shall not be liable for any amount in excess of the aggregate Premium received by
the Insurer in connection with the Notes. The relative fault of each Indemnifying Party, on
the one hand, and of each Indemnified Party, on the other, shall be determined by reference
to, among other things, whether the breach of, or alleged breach of, any representations,
warranties or agreements contained in 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
6
and opportunity to correct or prevent such breach. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(b) The parties hereto agree that it would not be just and equitable if contributions
pursuant to this Section 6 were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable considerations referred
to herein.
(c) The parties agree that the Insurer shall be solely responsible for the Insurer
Information, the Underwriters shall be solely responsible for the Underwriter Information
and that the balance of the Offering Document shall be the responsibility of the AmeriCredit
Parties.
(d) 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 7. Miscellaneous.
(a) Notices. All notices and other communications provided for under this Agreement
shall be delivered to the address set forth below or to such other address as shall be
designated by the recipient in a written notice to the other party or parties hereto.
| If to the Insurer: | Financial Guaranty Insurance Company | |||
| ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
||||
| Attention: Structured Finance Surveillance | ||||
| Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| E-Mail: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ | ||||
| If to the Underwriters: | Deutsche Bank Securities Inc. | |||
| ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ | ||||
| ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||
| Attention: Managing Director and Head of North | ||||
| American Asset Backed Securities |
||||
| Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS.
(c) Assignments. This Agreement may not be assigned by any party without the express
written consent of each other party. Any assignment made in violation of this Agreement
shall be null and void.
7
(d) Amendments. Amendments of this Agreement shall be in writing signed by each party
hereto.
(e) Survival, Etc. 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 Indemnifying Party, (ii) the issuance of the Notes
or (iii) any termination of this Agreement, the Underwriting Agreement or the Policy. The
indemnification provided in this Agreement will be in addition to any liability which the
parties may otherwise have and shall in no way limit any obligations of any AmeriCredit
Parties under the Insurance Agreement.
(f) Headings. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
(g) Counterparts. This Agreement may be executed in counterparts by the parties
hereto, and all such counterparts shall constitute one and the same instrument.
(h) No Bankruptcy Petition. Each of the Insurer and each of the Underwriters in their
capacity as an Underwriter covenants and agrees that, prior to the date which is one year
and one day or, if longer, the applicable preference period then in effect, after the
payment in full of all securities issued by the Issuer, it will not institute against, or
join any other Person in instituting against, the Issuer any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under any
bankruptcy, insolvency, reorganization or similar law. Each of the Insurer and each of the
Underwriters in their capacity as an Underwriter covenants and agrees that, prior to the
date which is one year and one day or, if longer, the applicable preference period then in
effect, after the payment in full of all Notes, it will not institute against, or join any
other Person in instituting against, the Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any bankruptcy, insolvency,
reorganization or similar law.
(i) Consent to Jurisdiction. THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE UNTIED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND
ANY COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
TO OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREUNDER OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREE THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE
HEARD OR DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH
FEDERAL COURT. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION, SUIT OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. TO
8
THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO HEREBY WAIVE AND AGREE NOT
TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS,
THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF
THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THE RELATED DOCUMENTS OR THE SUBJECT
MATTER THEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURTS.
To the extent permitted by applicable law, the parties hereto shall not seek and hereby waive
the right to any review of the judgment of any such court by any court of any other nation or
jurisdiction which may be called upon to grant an enforcement of such judgment.
Nothing contained in this Agreement shall limit or affect each party’s right to serve process
in any other manner permitted by law or to start legal proceedings relating to this Agreement
against any other Party or its property in the courts of any jurisdiction.
9
IN WITNESS WHEREOF, the parties hereto have caused this Indemnification Agreement to be duly
executed and delivered as of the date first above written.
| FINANCIAL GUARANTY INSURANCE COMPANY | ||||||
| By | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name | ||||||
| Title | Vice President | |||||
| DEUTSCHE BANK SECURITIES INC., as Representative of the Underwriters | ||||||
| By | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||||
| Name | ||||||
| Title | Vice President | |||||
| By | /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name | ||||||
| Title | Director | |||||