Exhibit 10.2
EXECUTION COPY
INDEMNIFICATION AGREEMENT
among
FINANCIAL SECURITY ASSURANCE
INC.,
AFS SENSUB CORP.
and
LEHMAN BROTHERS INC., as
Representative
Dated as of April 11,
2007
$275,000,000 Class A-1 5.3196%
Asset Backed Notes, Series 2007-B-F
$435,000,000 Class A-2 5.31% Asset Backed
Notes, Series 2007-B-F
$150,000,000 Class A-3-A 5.16% Asset Backed
Notes, Series 2007-B-F
$190,000,000 Class A-3-B LIBOR + 0.02%
Floating Rate Asset Backed Notes, Series 2007-B-F
$450,000,000 Class A-4 LIBOR + 0.05%
Floating Rate Asset Backed Notes, Series 2007-B-F
TABLE OF CONTENTS
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Page
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Section 1.
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Definitions
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1
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Section 2.
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Representations, Warranties and Agreements of
Financial Security
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3
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Section 3.
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Representations, Warranties and Agreements of
the Underwriters
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5
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Section 4.
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Indemnification
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6
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Section 5.
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Indemnification
Procedures
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7
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Section 6.
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Contribution
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8
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Section 7.
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Miscellaneous
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9
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EXHIBIT A
— Opinion of Counsel
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INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as
of April 11, 2007, among FINANCIAL SECURITY ASSURANCE INC.
(“ Financial Security ”), AFS SENSUB CORP., (the
“ Seller ”) and LEHMAN BROTHERS INC., as the
Representative (as defined below):
Section 1. Definitions .
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.
“ Closing Date ”
means April 19, 2007.
“ Federal Securities
Laws ” means the Securities Act, the Securities Exchange
Act of 1934, the Trust Indenture Act of 1939, the Investment
Company Act of 1940, the Investment Advisers Act of 1940 and the
Public Utility Holding Company Act of 1935, each as amended from
time to time, and the rules and regulations in effect from time to
time under such Acts.
“ Final Prospectus
Supplement ” means the final Prospectus Supplement dated
April 11 2007 relating to the Securities.
“ Financial Security
Agreements ” means this Agreement, the Spread Account
Agreement and the Insurance Agreement.
“ Financial Security
Information ” has the meaning provided in
Section 2(g) hereof.
“ Financial Security
Party ” means any of Financial Security, its parent,
subsidiaries and affiliates, and any shareholder, director,
officer, employee, agent or “controlling person” (as
such term is used in the Securities Act) of any of the
foregoing.
“ 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.
“ Insurance Agreement
” means the Insurance and Indemnity Agreement, dated as of
April 11 2007 among Financial Security, the Trust, AmeriCredit
Financial Services, Inc., AmeriCredit Corp. and AFS SenSub
Corp.
“ Losses ” means
(a) any actual out-of-pocket damages incurred by the party
entitled to indemnification or contribution hereunder, (b) any
actual out-of-pocket costs or expenses incurred by such party,
including reasonable fees or expenses of its counsel and other
expenses incurred in connection with investigating or defending any
claim, action or other proceeding which entitle such party to be
indemnified hereunder (subject to the limitations set forth in
Section 5 hereof), 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 (c) 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.
“ Notes Policy ”
means in the financial guaranty insurance policy, including any
endorsements thereto, issued by Financial Security with respect to
the Securities, substantially in the form attached as Annex I(A) to
the Insurance Agreement.
“ Offering Document
” means the Prospectus and any other material or documents
delivered by the Underwriters or any Underwriter Party to any
Person in connection with the offer or sale of the
Securities.
“ Person ” means
any individual, partnership, joint venture, corporation, trust,
unincorporated organization or other organization or entity
(whether governmental or private).
“ Policy ” means
(a) the Notes Policy or (b) the Swap Policy.
“ Preliminary Prospectus
Supplement ” means, collectively, the preliminary
Prospectus Supplement subject to completion dated April 10,
2007 relating to the Securities and the Supplement thereto subject
to completion dated April 11, 2007.
“ Prospectus ”
means, collectively, the Prospectus dated April 28, 2006
relating to the Securities and the Prospectus
Supplement.
“ Prospectus Supplement
” means, collectively, the Preliminary Prospectus Supplement
and the Final Prospectus Supplement.
“ Representative
” means Lehman Brothers Inc., as representative of the
Underwriters.
“ Securities ”
means the Trust’s $275,000,000 Class A-1 5.3196% Asset
Backed Notes, $435,000,000 Class A-2 5.31% Asset Backed Notes,
$150,000,000 Class A-3-A 5.16% Asset Backed Notes,
$190,000,000 Class A-3-B LIBOR + 0.02% Floating Rate Asset
Backed Notes and $450,000,000 Class A-4 LIBOR + 0.05% Floating Rate
Asset Backed Notes issued pursuant to the Series 2007-B-F
Indenture.
“ Securities Act
” means the Securities Act of 1933, as amended from time to
time.
“ Seller Party ”
means any of the Seller, its parent, subsidiaries and affiliates
and any employee, agent or “controlling person” (as
such term is used in the Securities Act) of any of the
foregoing.
“ Spread Account
Agreement ” means the Spread Account Agreement dated as
of April 11, 2007, among Financial Security, the Trust, the
Collateral Agent and the Trustee, as the same may be amended,
supplemented or otherwise modified in accordance with the terms
thereof.
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“ Swap Policy ”
means the financial guaranty insurance policy, including any
endorsements thereto, issued by Financial Security with respect to
the Swap Agreement, substantially in the form attached as Annex
I(B) to the Insurance Agreement.
“ Time of Sale ”
means 2:30 p.m. (New York time) on April 11, 2007.
“ Trust ” means
AmeriCredit Automobile Receivables Trust 2007-B-F.
“ Underwriter
Information ” has the meaning provided in
Section 3(c) hereof.
“ Underwriter Party
” means any of the Underwriters, its respective parent,
subsidiaries and affiliates and any shareholder, director, officer,
employee, agent or “controlling person” (as such item
is used in the Securities Act) of any of the foregoing.
“ Underwriters ”
means Deutsche Bank Securities Inc., J.P. Morgan Securities Inc.,
Lehman Brothers Inc., Barclays Capital Inc., Credit Suisse
Securities (USA) LLC and UBS Securities LLC, as
underwriters.
“ Underwriting
Agreement ” means the Underwriting Agreement, dated as of
April 11, 2007 among the Seller, AmeriCredit Financial
Services, Inc. and the Representative.
Section 2. Representations,
Warranties and Agreements of Financial Security . Financial
Security represents, warrants and agrees as follows:
(a) Organization, Etc .
Financial Security is a stock insurance company duly organized,
validly existing and authorized to transact financial guaranty
insurance business under the laws of the State of New
York.
(b) Authorization, Etc . The
Notes Policy and the Financial Security Agreements have been duly
authorized, executed and delivered by Financial
Security.
(c) Validity, Etc . The Notes
Policy and the Financial Security Agreements constitute valid and
binding obligations of Financial Security, enforceable against
Financial Security in accordance with their terms, subject, as to
the enforcement of remedies, to bankruptcy, insolvency,
reorganization, rehabilitation, moratorium and other similar laws
affecting the enforceability of creditors’ rights generally
applicable in the event of the bankruptcy or insolvency of
Financial Security and to the application of general principles of
equity and subject, in the case of this Agreement, to principles of
public policy limiting the right to enforce the indemnification
provisions contained herein.
(d) Exemption From
Registration . The Notes Policy is exempt from registration
under the Securities Act.
(e) No Conflicts . Neither
the execution or delivery by Financial Security of the Notes Policy
or the Financial Security Agreements, nor the performance by
Financial Security of its obligations thereunder, will conflict
with any provision of the certificate of incorporation or the
bylaws of Financial Security nor result in a breach of, or
constitute a
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default under, any material
agreement or other instrument to which Financial Security is a
party or by which any of its property is bound nor violate any
judgment, order or decree applicable to Financial Security of any
governmental or regulatory body, administrative agency, court or
arbitrator having jurisdiction over Financial Security (except
that, in the published opinion of the Securities and Exchange
Commission, the indemnification provisions of this Agreement,
insofar as they relate to indemnification for liabilities arising
under the Securities Act, are against public policy as expressed in
the Securities Act and are therefore unenforceable).
(f) Financial Information .
The consolidated balance sheets of Financial Security as of
December 31, 2006 and December 31, 2005 and the related
consolidated statements of income, changes in shareholder’s
equity and cash flows for each of the three years in the period
ended December 31, 2006, which are incorporated by reference
in the Prospectus, fairly present in all material respects the
financial condition of Financial Security as of such dates and for
such periods in accordance with generally accepted accounting
principles consistently applied (subject as to interim statements
to normal year-end adjustments) and since the date of the most
current interim consolidated balance sheet referred to above there
has been no change in the financial condition of Financial Security
which would materially and adversely affect its ability to perform
its obligations under the Notes Policy.
(g) Financial Security
Information . The information in the Prospectus Supplement set
forth or incorporated by reference under the caption “The
Insurer” (as revised from time to time in accordance with the
provisions hereof, the “ Financial Security
Information ”) is limited and does not purport to provide
the scope of disclosure required to be included in a prospectus
with respect to a registrant in connection with the offer and sale
of securities of such registrant registered under the Securities
Act. Within such limited scope of disclosure, however, with respect
to (i) the Preliminary Prospectus Supplement, as of the Time
of Sale, and (ii) the Final Prospectus Supplement, as of its
date and the Closing Date, the Financial Security Information does
not contain any untrue statement of a material fact, or omit to
state a material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were
made, not misleading.
(h) Additional Information .
Financial Security will furnish to the Underwriters or the Seller,
upon request of the Underwriters or the Seller, as the case may be,
copies of Financial Security’s most recent financial
statements (annual or interim, as the case may be) which fairly
present in all material respects the financial condition of
Financial Security as of the dates and for the periods indicated,
in accordance with generally accepted accounting principles
consistently applied except as noted therein (subject, as to
interim statements, to normal year-end adjustments). In addition,
if the delivery of a Prospectus relating to the Securities is
required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering
or sale of the Securities, the Seller or the Underwriters will
notify Financial Security of such requirement to deliver a
Prospectus and Financial Security will promptly provide the
Underwriters and the Seller with any revisions to the Financial
Security Information that are in the judgment of Financial Security
necessary to prepare an amended Prospectus or a supplement to the
Prospectus.
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(i) Opinion of Counsel .
Financial Security will furnish to the Underwriters and the Seller
on the closing date for the sale of the Securities an opinion of
its Assistant General Counsel, Associate General Counsel or General
Counsel to the effect set forth in Exhibit A attached hereto, dated
such closing date and addressed to the Seller and the
Underwriters.
(j) Consents and Reports of
Independent Accountants . Financial Security will furnish to
the Underwriters and the Seller, upon request, as comfort from its
independent accountants in respect of its financial condition,
(i) at the expense of the Person specified in the Insurance
Agreement, a copy of the Prospectus, including either a manually
signed consent or a manually signed report of Financial
Security’s independent accountants and (ii) the
quarterly review letter by Financial Security’s independent
accountants in respect of the most recent