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INSURANCE AGREEMENT

Insurance Agreement

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This Insurance Agreement involves

AFS SENSUB CORP. | FINANCIAL GUARANTY INSURANCE COMPANY, | AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2006-B-G, | WELLS FARGO BANK, NATIONAL ASSOCIATION,

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Title: INSURANCE AGREEMENT
Governing Law: New York     Date: 10/2/2006

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exv10w3
 

Exhibit 10.3

EXECUTION COPY

 

 

INSURANCE AGREEMENT
Dated as of September 18, 2006

FINANCIAL GUARANTY INSURANCE COMPANY,
as Insurer,

AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2006-B-G,
as Issuer,

AFS SENSUB CORP.,
as Seller,

AMERICREDIT FINANCIAL SERVICES, INC.

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee

AmeriCredit Automobile
Receivables Trust 2006-B-G
Asset Backed Notes
Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes

 

 

 


 

TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

 

 

Page

 

ARTICLE I

DEFINITIONS

 

 

 

 

 

 

 

Section 1.01.

 

Defined Terms

 

 

1

 

Section 1.02.

 

Other Definitional Provisions

 

 

7

 

 

 

 

 

 

 

 

ARTICLE II

REPRESENTATIONS, WARRANTIES AND COVENANTS

 

 

 

 

 

 

 

Section 2.01.

 

Representations and Warranties of AmeriCredit

 

 

8

 

Section 2.02.

 

Affirmative Covenants of AmeriCredit

 

 

9

 

Section 2.03.

 

Negative Covenants of AmeriCredit

 

 

13

 

Section 2.04.

 

Representations and Warranties of the Insurer

 

 

13

 

Section 2.05.

 

Representations and Warranties of the Seller and the Issuer

 

 

14

 

Section 2.06.

 

Affirmative Covenants of the Seller and the Issuer

 

 

15

 

Section 2.07.

 

Negative Covenants of the Seller and the Issuer

 

 

19

 

 

 

 

 

 

 

 

ARTICLE III

THE POLICY; REIMBURSEMENT

 

 

 

 

 

 

 

Section 3.01.

 

Issuance of the Policy

 

 

20

 

Section 3.02.

 

Payment of Fees and Premium

 

 

22

 

Section 3.03.

 

Reimbursement Obligation

 

 

22

 

Section 3.04.

 

Indemnification

 

 

23

 

Section 3.05.

 

Payment Procedure

 

 

27

 

Section 3.06.

 

Subrogation

 

 

27

 

Section 3.07.

 

Reimbursement

 

 

27

 

 

 

 

 

 

 

 

ARTICLE IV

FURTHER AGREEMENTS

 

 

 

 

 

 

 

Section 4.01.

 

Effective Date; Term of the Insurance Agreement

 

 

27

 

Section 4.02.

 

Further Assurances and Corrective Instruments

 

 

28

 

Section 4.03.

 

Obligations Absolute

 

 

28

 

Section 4.04.

 

Assignments; Reinsurance; Third-Party Rights

 

 

30

 

Section 4.05.

 

Liability of the Insurer

 

 

31

 

Section 4.06.

 

Parties to Join in Enforcement Action

 

 

31

 

Section 4.07.

 

Rights and Remedies

 

 

31

 

 


 

 

 

 

 

 

 

 

ARTICLE V

DEFAULTS AND REMEDIES

 

 

 

Page

 

Section 5.01.

 

Defaults

 

 

32

 

Section 5.02.

 

Remedies; No Remedy Exclusive

 

 

33

 

Section 5.03.

 

Waivers

 

 

33

 

 

 

 

 

 

 

 

ARTICLE VI

MISCELLANEOUS

 

 

 

 

 

 

 

Section 6.01.

 

Amendments, Etc

 

 

34

 

Section 6.02.

 

Notices

 

 

34

 

Section 6.03.

 

Severability

 

 

36

 

Section 6.04.

 

Governing Law

 

 

36

 

Section 6.05.

 

Consent to Jurisdiction

 

 

36

 

Section 6.06.

 

Consent of the Insurer

 

 

37

 

Section 6.07.

 

Counterparts

 

 

37

 

Section 6.08.

 

Headings

 

 

37

 

Section 6.09.

 

Trial by Jury Waived

 

 

37

 

Section 6.10.

 

Limited Liability

 

 

37

 

Section 6.11.

 

Entire Agreement; Facsimile Signatures

 

 

38

 

Section 6.12.

 

Trustee

 

 

38

 

Section 6.13.

 

Third-Party Beneficiary

 

 

38

 

Section 6.14.

 

No Proceedings

 

 

38

 

Section 6.15.

 

Limitation of Owner Trustee Liability

 

 

38

 

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     INSURANCE AGREEMENT (as it may be amended, modified or supplemented from time to time, this “Insurance Agreement”), dated as of September 18, 2006, by and among FINANCIAL GUARANTY INSURANCE COMPANY, as Insurer (the “Insurer”), AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2006-B-G, as Issuer (the “Issuer”), AMERICREDIT FINANCIAL SERVICES, INC. (“AmeriCredit”), AFS SENSUB CORP., as Seller (the “Seller”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee (in such capacity, the “Trustee”).

PRELIMINARY STATEMENTS

     The Indenture, dated as of September 18, 2006 (the “Indenture”), by and between the Issuer and Wells Fargo Bank, National Association, as Trustee and Trust Collateral Agent (in such capacity, the “Trust Collateral Agent”), provides for, among other things, the issuance of the AmeriCredit Automobile Receivables Trust 2006-B-G Asset Backed Notes.

     The parties hereto desire that the Insurer issue the Policy to the Trustee for the benefit of the Holders and to, among other things, specify the conditions precedent thereto, the premium in respect thereof and the indemnity, reimbursement, reporting and other obligations of the parties hereto other than the Insurer in consideration thereof.

     NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

     Section 1.01. Defined Terms. Capitalized terms used in this Insurance Agreement shall have the meanings set forth below. Unless the context clearly requires otherwise, all capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Policy or, if not defined therein, in the Indenture or, if not defined therein, in the Sale and Servicing Agreement, or, if not defined therein, in the Purchase Agreement, each as described below.

     “Affiliate” means, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

     “AmeriCredit” means AmeriCredit Financial Services, Inc. in its individual capacity and in its capacity as servicer under the Sale and Servicing Agreement, as custodian under the Custodian Agreement and as seller under the Purchase Agreement.

     “AmeriCredit Party” means any of the Issuer, the Seller, the Depositor and AmeriCredit (collectively, the “AmeriCredit Parties”).

 


 

     “Certificate” means the trust certificate evidencing the beneficial interest of the Certificateholder in the Trust.

     “Charter Documents” means, with respect to any Transaction Party, such entity’s organizational documents, including its trust agreement, certificate of trust, memorandum of association, articles of organization, certificate or articles of incorporation, by-laws and/or operating agreement.

     “Class A-1 Notes” means the Class A-1 5.3484% 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 5.37% 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 5.21% Asset Backed Notes, issued pursuant to the Indenture and substantially in the form attached as an Exhibit to the Indenture.

     “Class A-4 Notes” means the Class A-4 5.21% Asset Backed Notes, issued pursuant to the Indenture and substantially in the form attached as an Exhibit to the Indenture.

     “Closing Date” means September 26, 2006.

     “Collateral Agent” means Wells Fargo Bank, National Association, in its capacity as Collateral Agent under the Spread Account Agreement.

     “Collection Period” means, (i) with respect to the first Distribution Date, the period beginning on the close of business on September 18, 2006 and ending on the close of business on September 30, 2006, and (ii) with respect to each subsequent Distribution Date, the period beginning on the close of business on the last day of the second preceding calendar month and ending on the close of business on the last day of the immediately preceding calendar month. Any amount stated “as of the close of business on the last day of a Collection Period” shall give effect to the following calculations as determined as of the end of the day on such last day: (i) all applications of collections and (ii) all distributions.

     “Contract” means a motor vehicle retail installment sales contact or promissory note.

     “Controlling Party” means the Insurer, so long as no Insurer Default shall have occurred and be continuing and the Trust Collateral Agent for the benefit of the Noteholders, in the event an Insurer Default shall have occurred and be continuing.

     “Corporate Trust Office” means (i) with respect to the Owner Trustee, the principal corporate trust office of the Owner Trustee, which at the time of execution of this agreement is 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration, and (ii) with respect to the Trustee, the Trust Collateral Agent, the Backup Servicer and the Collateral Agent, the principal office thereof at which at any particular time its corporate trust business shall be administered, which at the time of execution of this agreement is Sixth Street and Marquette Avenue, MAC N 9311-161, Minneapolis, Minnesota 55479, Attention: Corporate Trust Office.

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     “Custodian” means AmeriCredit and any other Person named from time to time as custodian in any Custodian Agreement acting as agent for the Trust Collateral Agent, which Person must be acceptable to the Controlling Party (the Custodian as of the Closing Date is acceptable to the Insurer as of the Closing Date).

     “Custodian Agreement” means any Custodian Agreement from time to time in effect between the Custodian named therein, the Insurer and the Trust Collateral Agent, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, which Custodian Agreement and any amendments, supplements or modifications thereto shall be acceptable to the Controlling Party (the Custodian Agreement which is effective on the Closing Date is acceptable to the Controlling Party).

     “Default” means any occurrence that is, or with notice or the lapse of time or both would become, an Event of Default.

     “Distribution Date” means, with respect to each Collection Period, the sixth day of the following calendar month, or, if such day is not a Business Day, the immediately following Business Day, commencing October 6, 2006.

     “Event of Default” has the meaning specified in Section 5.01 hereof.

     “Financial Statements” means, with respect to AmeriCredit Corp., the consolidated balance sheets and the statements of income, retained earnings and cash flows and the notes thereto which have been provided to the Insurer.

     “Fitch” means Fitch Inc., or its successor.

     “Holder” has the meaning given thereto in the Policy.

     “Indemnified Party” has the meaning specified in Section 3.04 hereof.

     “Indemnifying Party” has the meaning specified in Section 3.04 hereof.

     “Indemnification Agreement” means the Indemnification Agreement dated as of September 14, 2006 between the Insurer and Deutsche Bank Securities Inc., as Representative of the Underwriters.

     “Indenture” means the Indenture dated as of September 18, 2006 between the Issuer and Wells Fargo Bank, National Association, as Trustee and Trust Collateral Agent, as the same may be amended or supplemented from time to time.

     “Information” has the meaning specified in Section 2.01(c) hereof.

     “Insolvency Event” means, with respect to a specified Person, (a) the filing of a petition against such Person or the entry of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person or any substantial part of its property in an involuntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator,

3


 

or similar official for such Person or for any substantial part of its property, or ordering the winding-up or liquidation or such Person’s affairs, and such petition, decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (b) the commencement by such Person of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by, a receiver, liquidator, assignee, custodian, trustee, sequestrator, or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due, or the taking of action by such Person in furtherance of any of the foregoing.

     “Insolvency Proceeding” means any proceeding by or against any person under any applicable reorganization, bankruptcy, liquidation, rehabilitation, insolvency or other similar law now or hereafter in effect or any proceeding in which a receiver, liquidator, conservator, trustee or similar official shall have been, or may be, appointed or requested for a person or any of its assets.

     “Insurance Agreement” has the meaning given such term in the initial paragraph hereof.

     “Insured Payment” has the meaning given such term in the Policy.

     “Insurer” means Financial Guaranty Insurance Company and any successor thereto, as issuer of the Policy.

     “Insurer Default” means the occurrence and continuance of any of the following events:

     (a) the Insurer shall have failed to make a payment required under the Policy in accordance with its terms;

     (b) the Insurer shall have (i) filed a petition or commenced any case or proceeding under any provision or chapter of the United States Bankruptcy Code or any other similar federal or state law relating to insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (ii) made a general assignment for the benefit of its creditors, or (iii) had an order for relief entered against it under the United States Bankruptcy Code or any other similar federal or state law relating to insolvency, bankruptcy, rehabilitation, liquidation or reorganization which is final and nonappealable; or

     (c) a court of competent jurisdiction, the New York Department of Insurance or other competent regulatory authority shall have entered a final and nonappealable order, judgment or decree (i) appointing a custodian, trustee, agent or receiver for the Insurer or for all or any material portion of its property or (ii) authorizing the taking of possession by a custodian, trustee, agent or receiver of the Insurer (or the taking of possession of all or any material portion of the property of the Insurer).

     “Insurer Financial Statements” has the meaning given such term in Section 2.04(g).

4


 

     “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.

     “Investment Company Act” means the Investment Company Act of 1940, including, unless the context otherwise requires, the rules and regulations thereunder, as amended from time to time.

     “Late Payment Rate” means the lesser of (a) the greater of (i) the per annum rate of interest publicly announced from time to time by Citibank, N.A. as its prime or base lending rate (any change in such rate of interest to be effective on the date such change is announced by Citibank, N.A.), plus 3% per annum and (ii) the then applicable highest rate of interest on the Notes and (b) the maximum rate permissible under applicable usury or similar laws limiting interest rates. The Late Payment Rate shall be computed on the basis of the actual number of days elapsed over a year of 360 days.

     “Lockbox Agreement” means the Tri-Party Remittance Processing Agreement, dated as of September 18, 2006, by and among AmeriCredit, JPMorgan Chase Bank, N.A., and the Trust Collateral Agent, as such agreement may be amended or supplemented from time to time, unless the Trust Collateral Agent shall cease to be a party thereunder, or such agreement shall be terminated in accordance with its terms, in which event “Lockbox Agreement” shall mean such other agreement, in form and substance acceptable to the Controlling Party, among the Servicer, the Trust Collateral Agent and the Lockbox Bank.

     “Lockbox Bank” means a depository institution named by the Servicer and acceptable to the Controlling Party.

     “Master Warehouse Facility” means the second amended and restated sale and servicing agreement, dated as of November 5, 2003, among AmeriCredit Master Trust, a Delaware statutory trust, AmeriCredit Funding Corp. VII, a Delaware corporation, AmeriCredit and JP Morgan Chase Bank, N.A. (as successor in interests to Bank One, NA) as amended, restated or supplemented, and any replacement warehouse facility.

     “Material Adverse Effect” means, with respect to any event or circumstance, a material adverse effect on (a) the business, financial condition, operations or assets of the Issuer (considered separately) or the Issuer, the Seller and the Servicer (taken as a whole), (b) the ability of any AmeriCredit Party to perform its obligations under any Transaction Document to which it is a party, (c) the validity, enforceability of, or collectibility of, amounts payable by any AmeriCredit Party under any Transaction Document to which it is a party, (d) the status,

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existence, perfection or priority of the interest of the Issuer or of the Trustee in the Trust Estate or (e) the validity, enforceability or collectibility of amounts payable by any AmeriCredit Party when due under any Transaction Document to which it is a party.

     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

     “Notes” means the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.

     “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, of the Seller, 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 Policy.

     “Opinion Facts and Assumptions” means the facts and assumptions contained in the insolvency opinion dated September 26, 2006 by Dewey Ballantine LLP and the officer’s certificates attached as exhibits thereto insofar as they relate to the Seller, the Issuer and AmeriCredit.

     “Person” means an individual, corporation, estate, partnership, joint venture, association, limited liability company, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof.

     “Policy” means the Financial Guaranty Insurance Policy No. 06030109 dated September 26, 2006, including any endorsements thereto, issued by the Insurer to the Trustee with respect to the Notes, for the benefit of the Holders.

     “Premium” means the premium payable in accordance with the Premium Letter.

     “Premium Letter” means that certain letter agreement dated as of the date hereof from the Insurer and acknowledged by the Servicer, the Issuer and the Trustee setting forth certain fees and other matters referred to herein, as the same may be amended or supplemented from time to time in accordance therewith and with this Insurance Agreement.

     “Purchase Agreement” means the Purchase Agreement among AFS SenSub Corp., as purchaser, and AmeriCredit Financial Services, Inc., as seller, dated as of September 18, 2006, as such Purchase Agreement may be amended or supplemented from time to time.

     “Rating Agencies” means Fitch, Moody’s and S&P.

     “Receivables” means the Initial Receivables listed on Schedule A attached to the Sale and Servicing Agreement and the Subsequent Receivables listed on Schedule A to each Subsequent Transfer Agreement (which Schedules may be in the form of microfiche or disk).

     “Reimbursement Amounts” shall mean, as of any Distribution Date, the sum of (x)(i) all Insured Payments paid by the Insurer, but for which the Insurer has not been reimbursed prior to

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such Distribution Date pursuant to Section 3.03 of the Insurance Agreement, Section 5.6 of the Indenture and Section 5.7 of the Sale and Servicing Agreement, plus (ii) interest accrued on such Insured Payments not previously repaid calculated at the Late Payment Rate from the date the Trustee, or any other Person at its direction, received the related Insured Payments or the date such Insured Payments were made, (y) without duplication (i) any amounts then due and owing to the Insurer under this Insurance Agreement, Section 5.6 of the Indenture and Section 5.7 of the Sale and Servicing Agreement, as certified to the Trustee by the Insurer plus (ii) interest on such amounts at the Late Payment Rate and (z) without duplication (i) any Insurer Optional Deposits plus (ii) interest on such amounts at the Late Payment Rate.

     “Responsible Officer” means, with respect to the Trustee or the Trust Collateral Agent, any officer within the Corporate Trust Office of the Trustee or any AmeriCredit Party, including any Executive Vice President, Senior Vice President, Vice President, Assistant Vice President, Treasurer, Assistant Treasurer, Assistant Secretary, or any other officer of the Trustee or the Trust Collateral Agent customarily performing functions similar to those performed by any of the above-designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

     “Sale and Servicing Agreement” means the Sale and Servicing Agreement, dated as of September 18, 2006, among the Issuer, the Seller, the Servicer, and Wells Fargo Bank, National Association, as Trust Collateral Agent and as Backup Servicer (in such capacity, the “Backup Servicer”), as the same may be amended or supplemented from time to time.

     “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.

     “Securities Exchange Act” means the Securities Exchange Act of 1934, including, unless the context otherwise requires, the rules and regulations promulgated thereunder, as amended from time to time.

     “Seller” has the meaning specified in the initial paragraph hereof.

     “Servicer” has the meaning specified in the recitals hereof.

     “Servicer Termination Event” has the meaning specified in Section 9.1 of the Sale and Servicing Agreement.

     “Servicing Policy and Procedures” means the policies and procedures set forth on Schedule C to the Sale and Servicing Agreement, and any amendments thereto.

     “S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any successor thereto.

     “Spread Account” means the account designated as such, established and maintained pursuant to the Spread Account Agreement.

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     “Spread Account Agreement” means the Spread Account Agreement dated as of September 18, 2006, among the Insurer, the Issuer, the Trustee and the Collateral Agent, as the same may be modified, supplemented or otherwise amended in accordance with its terms thereof.

     “Tangible Net Worth” means, with respect to any Person, the net worth of such Person calculated in accordance with GAAP, after subtracting therefrom the aggregate amount of such Person’s intangible assets, including, without limitation, goodwill, franchises, licenses, patents, trademarks, copyrights and service marks.

     “Transaction” means the transactions contemplated by the Transaction Documents.

     “Transaction Documents” means this Insurance Agreement, the Underwriting Agreement, the Sale and Servicing Agreement, each Subsequent Purchase Agreement, each Subsequent Transfer Agreement, the Premium Letter, the Certificate of Trust, the Trust Agreement, the Purchase Agreement, the Indenture, the Spread Account Agreement, the Custodian Agreement, the Lockbox Agreement, the Notes and all other documents and certificates delivered in connection therewith except for the Policy.

     “Transaction Parties” means the AmeriCredit Parties, the Servicer, the Trust Collateral Agent, the Collateral Agent, the Backup Servicer, the Custodian and the Trustee.

     “Trigger Event” shall have the meaning set forth in the Spread Account Agreement.

     “Trust Agreement” means the Trust Agreement dated as of September 6, 2006 between AFS SenSub Corp., as Seller and Wilmington Trust Company, as Owner Trustee, as amended and restated as of September 18, 2006, as the same may be amended and supplemented from time to time.

     “Underwriter Information” shall have the meaning set forth in the Indemnification Agreement.

     “Underwriters” shall mean Deutsche Bank Securities Inc., Credit Suisse Securities (USA) LLC, UBS Securities LL