Exhibit 10.2
EXECUTION COPY
INDEMNIFICATION AGREEMENT
among
FINANCIAL SECURITY ASSURANCE INC.,
AFS FUNDING TRUST
and
DEUTSCHE BANK SECURITIES INC.
Dated as of August 17, 2005
$182,000,000 Class A-1 3.8445% Asset Backed
Notes, Series 2005-C-F
$271,000,000 Class A-2 4.31% Asset Backed Notes,
Series 2005-C-F
$356,000,000 Class A-3 4.47% Asset Backed Notes,
Series 2005-C-F
$291,000,000 Class A-4 4.63% Asset Backed Notes,
Series 2005-C-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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6
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Section 6.
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Contribution
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7
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Section 7.
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Miscellaneous
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8
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EXHIBIT A — Opinion of Assistant General
Counsel
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as
of August 17, 2005, among FINANCIAL SECURITY ASSURANCE INC.
(“ Financial Security ”), AFS FUNDING TRUST,
(the “ Seller ”) and DEUTSCHE BANK SECURITIES
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 August 30, 2005.
“ 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.
“ Financial Security
Agreements ” means this Agreement, the Spread Account
Agreement, the Spread Account Agreement Supplement 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
August 17, 2005 among Financial Security, the Trust, AmeriCredit
Financial Services, Inc., AmeriCredit Corp. and AFS Funding
Trust.
“ 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.
“ Offering Document
” means the Prospectus and any other material or documents
delivered by the Underwriters 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
the financial guaranty insurance policy delivered by Financial
Security with respect to the Securities.
“ Prospectus ”
means, collectively, the Prospectus relating to the Securities
dated January 7, 2005 and the Prospectus Supplement dated August
15, 2005 (the “Prospectus Supplement”) relating to the
Securities.
“ Representative
” means Deutsche Bank Securities Inc., as representative of
the Underwriters.
“ Securities ”
means the Trust’s $182,000,000 Class A-1 3.8445% Asset Backed
Notes, $271,000,000 Class A-2 4.31% Asset Backed Notes,
$356,000,000 Class A-3 4.47% Asset Backed Notes and $291,000,000
Class A-4 4.63% Asset Backed Notes issued pursuant to the Series
2005-C-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, as
amended and restated, dated as of May 11, 1998, and as further
amended as of September 10, 2003, among Financial Security, AFS
Funding Trust, the collateral agent named therein and the trustees
specified therein, as the same may be amended, supplemented or
otherwise modified in accordance with the terms thereof.
“ Spread Account Agreement
Supplement ” means the Series 2005-C-F Supplement to
Spread Account Agreement, dated as of August 17, 2005, among
Financial Security, AFS Funding Trust, the collateral agent named
therein and the trustees specified therein.
“ Trust ” means
AmeriCredit Automobile Receivables Trust 2005-C-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.
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“ Underwriters ”
means Deutsche Bank Securities Inc., Wachovia Capital Markets LLC,
JPMorgan Securities Inc., Lehman Brothers Inc., Morgan Stanley
& Co. Incorporated and UBS Securities LLC, as
underwriters.
“ Underwriting
Agreement ” means the Underwriting Agreement, dated as of
August 15, 2005 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
Policy and the Financial Security Agreements have been duly
authorized, executed and delivered by Financial
Security.
(c) Validity, Etc . The
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 Policy is exempt from registration under the
Securities Act.
(e) No Conflicts . Neither
the execution or delivery by Financial Security of the 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
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, 2004 and December 31, 2003 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, 2004, and the interim consolidated balance
sheets of Financial Security as of March 31, 2005 (and March 31,
2004) and June 30, 2005 (and June 30, 2004) (unaudited), and the
related statements of income, changes in shareholder
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equity and cash flows for the
interim period then ended, 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 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, as of the
date of the Prospectus Supplement and as of 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.
(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, 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
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