|
Exhibit 10.6
EXECUTION VERSION
INDEMNIFICATION AGREEMENT
between
AMBAC ASSURANCE CORPORATION,
as Insurer,
and
DEUTSCHE BANK SECURITIES INC.,
as Underwriter
Dated as of December 6, 2006
TABLE OF CONTENTS
i
INDEMNIFICATION
AGREEMENT
INDEMNIFICATION AGREEMENT (as may be amended, modified or
supplemented from time to time, this " Agreement ") dated as
of December 6, 2006 by and among AMBAC ASSURANCE CORPORATION,
as Insurer (" Ambac "), and DEUTSCHE BANK SECURITIES INC. as
Underwriter (the " Underwriter ") 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 Indenture and the Insurance 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.
" Ambac Agreements " means this Agreement and the
Insurance Agreement.
" Ambac Information " has the meaning provided in
Section 2(h) hereof.
" Ambac Party " means any of Ambac, 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.
" Ambac Policy " means the Note Guaranty Insurance Policy
No. AB1053BE dated December 14, 2006, including any
endorsements thereto, issued by Ambac to the Indenture Trustee with
respect to the Notes, for the benefit of the Holders.
" Class A-1 Notes " means the Class A-1 5.34%
Asset Backed Notes, issued pursuant to the Indenture and
substantially in the form attached as an Exhibit to the
Indenture.
" Class A-2 Notes " means the Class A-2 5.15%
Asset Backed Notes, issued pursuant to the Indenture and
substantially in the form attached as an Exhibit to the
Indenture.
" Class A-3 Notes " means the Class A-3 5.01%
Asset Backed Notes, issued pursuant to the Indenture and
substantially in the form attached as an Exhibit to the
Indenture.
" Closing Date " means December 14, 2006.
" Date of Issuance " means the date on which the Ambac
Policy is issued as specified therein.
" Exchange Act " means the Securities Exchange Act of
1934, as amended.
" 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.
" Holder " has the meaning given thereto in the Ambac
Policy.
" Indemnified Party " means any party entitled to any
indemnification pursuant to Section 4 hereof.
1
-
" Indemnifying Party " means any party
required to provide indemnification pursuant to Section 4
hereof.
" Indenture " means the Indenture dated as of
December 1, 2006 between the Issuing Entity and Deutsche Bank
Trust Company Americas, as Indenture Trustee and Trust Collateral
Agent, as the same may be amended or supplemented from time to
time.
" Indenture Trustee " means Deutsche Bank Trust Company
Americas, a national banking association, not in its individual
capacity but as Indenture Trustee under the Indenture, or any
successor Indenture Trustee under the Indenture.
" Insurance Agreement " means that certain Insurance and
Indemnity Agreement, dated as of December 14, 2006, among
Ambac, the Issuing Entity, the Servicer, the Seller and the
Indenture Trustee, in regard to the Notes, as such agreement may be
amended, modified or supplemented from time to time.
" 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, taken together, the
Prospectus Supplement, dated December 6, 2006 (the "
Prospectus Supplement "), and the Prospectus, dated
November 17, 2006, of the Issuing Entity, in respect of the
offering and sales of the Notes, any amendment or supplement
thereto, and any other offering document in respect of the Notes
that makes reference to the Ambac Policy.
" Notes " means the Class A-1 Notes, the
Class A-2 Notes and the Class A-3 Notes.
" Securities Act " means the Securities Act of 1933,
including, unless the context otherwise requires, the rules and
regulations promulgated thereunder, as amended from time to
time.
" Seller " means UPFC Auto Financing Corporation.
" Transaction " means the transactions contemplated by
the Transaction Documents.
" Transaction Documents " means this Agreement, the
Insurance Agreement, the Underwriting Agreement, the Sale and
Servicing Agreement, the Certificate of Trust, the Trust Agreement,
the Sale Agreement, the Indenture and the Spread Account Agreement
and all other documents and certificates delivered in connection
therewith except for the Ambac Policy.
" Underwriter " means Deutsche Bank Securities Inc.
UPFC Auto Receivables Trust 2006-B
Indemnification Agreement Signature Page
2
-
" Underwriter Information " means the
information furnished by the Underwriter in writing expressly for
use in the Offering Document and included in the table following
the second paragraph of text and the third, fourth, fifth, sixth
and seventh paragraphs of text under the caption "Underwriting" in
the Prospectus Supplement.
" Underwriting Agreement " means the Underwriting
Agreement, dated December 6, 2006 between the Underwriter, the
Seller and the Servicer with respect to the offer and sale of the
Notes, as amended, modified or supplemented from time to time.
" Underwriting Party " means, with respect to each
Underwriter, any of the following: such 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.
Section 2. Representations and Warranties of Ambac .
Ambac represents, warrants and agrees as follows as of the Closing
Date:
(a) Organization and Licensing . Ambac is a stock
insurance corporation duly organized, validly existing and in good
standing under the laws of the State of Wisconsin.
(b) Corporate Power . Ambac has the corporate power and
authority to issue the Ambac Policy and execute and deliver this
Indemnification Agreement and all other Transaction Documents to
which Ambac is a party 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 Ambac
Policy, this Indemnification Agreement and all other Transaction
Documents to which Ambac is a party have been taken and all
licenses, orders, consents or other authorizations or approvals of
Ambac’s Board of Directors or stockholders or any
governmental boards or bodies legally required for the
enforceability of the Ambac Policy, this Indemnification Agreement
and all other Transaction Documents to which Ambac is a party have
been obtained or are not material to the enforceability of the
Ambac Policy, this Indemnification Agreement and all other
Transaction Documents to which Ambac is a party.
(d) Enforceability . The Ambac Policy, when issued, will
constitute, and this Indemnification Agreement and all other
Transaction Documents to which Ambac is a party constitutes, legal,
valid and binding obligations of Ambac, enforceable in accordance
with their respective terms, subject to insolvency, reorganization,
moratorium, receivership and other similar laws affecting
creditors’ rights generally and by general principles of
equity and subject to principles of public policy limiting the
right to enforce the indemnification provisions contained therein
and herein, insofar as such provisions relate to indemnification
for liabilities arising under Federal Securities Laws.
(e) No Conflict . The execution by Ambac of the Ambac
Policy, this Indemnification Agreement and all other Transaction
Documents to which Ambac is a party 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 Restated Articles of Incorporation or By-Laws of Ambac, or any
restriction contained in any contract, agreement or instrument to
which Ambac is a party or by which it is bound or constitute a
default under any of the foregoing which would materially and
adversely affect its ability to perform its obligations under the
Ambac Policy, this Indemnification Agreement or any other
Transaction Documents to which Ambac is a party.
(f) Exempt from Registration . The Ambac Policy, when
issued, will be exempt from registration under the Securities
Act.
UPFC Auto Receivables Trust 2006-B
Indemnification Agreement Signature Page
3
(g) Financial Information . As of the date
of the Offering Documents, the consolidated financial statements of
Ambac Assurance Corporation and subsidiaries as of
December 31, 2005 and 2004 and for each of the years in the
three-year period ended December 31, 2005, prepared in
accordance with U. S. generally accepted accounting principles,
included in the Annual Report on Form 10-K of Ambac Financial
Group, Inc. (which was filed with the Securities and Exchange
Commission (the "Commission") on March 13, 2006; Commission
File No. 1-10777), the unaudited consolidated financial
statements of Ambac Assurance Corporation and subsidiaries as of
March 31, 2006 and for the three-month periods ended
March 31, 2006 and 2005 included in the Quarterly Report on
Form 10-Q of Ambac Financial Group, for the three-month period
ended March 31, 2006 (which was filed with the Commission on
May 10, 2006), Ambac Financial Group’s Current Report on
Form 8-K dated and filed on April 26, 2006; Ambac Financial
Group’s Current Report on Form 8-K dated and filed on
July 26, 2006; Ambac Financial Group’s Current Report on
Form 8-K dated July 25, 2006 and filed on July 26, 2006;
Ambac Financial Group’s Current Report on Form 8-K dated and
filed on October 25, 2006; the unaudited consolidated
financial statements of Ambac Assu
|
