Exhibit 10.2


 


EXECUTION COPY




 





 


MBIA INSURANCE CORPORATION,


as Insurer


 


AMERICREDIT FINANCIAL SERVICES, INC.


 


and


 


DEUTSCHE BANK SECURITIES INC.


 


as the Representative of the Underwriters


 


INDEMNIFICATION AGREEMENT


 


$1,000,000,000


AmeriCredit Automobile Receivables Trust 2003-A-M


Automobile Receivables Backed Notes


$188,000,000 Class A-1 Notes


$186,000,000 Class A-2-A Notes


$186,000,000 Class A-2-B Notes


$73,500,000 Class A-3-A Notes


$73,500,000 Class A-3-B Notes


$146,500,000 Class A-4-A Notes


$146,500,000 Class A-4-B Notes


 


Dated as of April 9, 2003




 


 





 

















 


TABLE OF CONTENTS


 


	
  Section 1.

  	
  Definitions

  
	
  Section 2.

  	
  Representations and Warranties of the
  Insurer

  
	
  Section 3.

  	
  Agreements, Representations and Warranties
  of the Underwriters

  
	
  Section 4.

  	
  Agreements, Representations and Warranties
  of AmeriCredit

  
	
  Section 5.

  	
  Indemnification

  
	
  Section 6.

  	
  Notice To Be Given

  
	
  Section 7.

  	
  Contribution

  
	
  Section 8.

  	
  Notices

  
	
  Section 9.

  	
  Governing Law, Etc

  
	
  Section 10.

  	
  Insurance Agreement; Underwriting
  Agreement; Sale and Servicing Agreement

  
	
  Section 11.

  	
  Limitations

  
	
  Section 12.

  	
  Counterparts

  
	
  Section 13.

  	
  Nonpetition

  
	
   

  
	
  TESTIMONIUM

  
	
   

  
	
  SIGNATURES
  AND SEALS

  



 


 

















 


INDEMNIFICATION AGREEMENT


 


This
Agreement, dated as of April 9, 2003, is by and among MBIA INSURANCE
CORPORATION (the “Insurer”), as the Insurer under the Note Guaranty Insurance
Policy (the “Policy”) issued in connection with the Offered Notes described
below, AMERICREDIT FINANCIAL SERVICES, INC. (“AmeriCredit”) and DEUTSCHE BANK
SECURITIES INC. as Representative of the Underwriters (the “Representative”).


 


Section 1.  Definitions.  As used in this Agreement, the following
terms shall have the respective meanings stated herein, unless the context
clearly requires otherwise, in both singular and plural form, as appropriate.
Capitalized terms used in this Agreement but not otherwise defined herein will
have the meanings ascribed to such terms in the Sale and Servicing Agreement
(as described below).


 


“Act” means the Securities Act of 1933, as
amended, together with all related rules and regulations.


 


“Agreement” means this Indemnification
Agreement by and among the Insurer, AmeriCredit and the Representative of the
Underwriters.


 


“AmeriCredit Party” means AmeriCredit, each
of its parents, subsidiaries and affiliates and any shareholder, director,
officer, employee, agent or any “controlling person” (as such term is used in
the Act) of any of the foregoing.


 


“Indemnified Party” means any party
entitled to any indemnification pursuant to Section 5 below, as the context
requires.


 


“Indemnifying Party” means any party
required to provide indemnification pursuant to Section 5 below, as the context
requires.


 


“Indenture” means
the Indenture dated April 10, 2003 between the Issuer and the Trustee and Trust
Collateral Agent as the same may be amended or supplemented from time to time
in accordance with the terms thereof.


 


“Insurance Agreement” means the Insurance
Agreement, dated as of April 10, 2003 , by and among the Insurer, the Issuer,
AmeriCredit, the Seller, the Back-up Servicer, the Trustee, the Trust
Collateral Agent and the Collateral Agent.


 


“Insurer Party” means the Insurer and its
respective parents, subsidiaries and affiliates and any shareholder, director,
officer, employee, agent or any “controlling person” (as such term is used in
the Act) of any of the foregoing.


 

















 


“Losses” means (i) any actual out-of-pocket
loss paid by the party entitled to indemnification or contribution hereunder
and (ii) any actual out-of-pocket costs and expenses paid by such party,
including reasonable fees and expenses of its counsel, to the extent not paid,
satisfied or reimbursed from funds provided by any other Person (provided that
the foregoing shall not create or imply any obligation to pursue recourse
against any such other Person).


 


“Offered Notes” means the $1,000,000,000
AmeriCredit Automobile Receivables Trust 2003-A-M Automobile Receivables Backed
Notes $188,000,000 Class A-1 Notes, $186,000,000 Class A-2-A Notes,
$186,000,000 Class A-2-B Notes, $73,500,000 Class A-3-A Notes, $73,500,000
Class A-3-B Notes, $146,500,000 Class A-4-A Notes, $146,500,000 Class A-4-B
Notes, issued pursuant to the Indenture.


 


“Person” means any individual, partnership,
joint venture, corporation, trust or unincorporated organization or any
government or agency or political subdivision thereof.


 


“Prospectus” means the form of final
Prospectus included in the Registration Statement on each date that the
Registration Statement and any post effective amendment or amendments thereto
became effective.


 


“Prospectus Supplement” means the form of
final Prospectus Supplement, dated April 9, 2003, and filed with the Securities
and Exchange Commission on April 9, 2003.


 


“Registration Statement” means the
registration statement on Form S-3 of AmeriCredit relating to the Offered
Notes.


 


“Sale and Servicing Agreement” means the
Sale and Servicing Agreement, dated as of April 10, 2003, by and among the
Issuer, the Seller, the Servicer, the Back-up Servicer and the Trust Collateral
Agent.


 


“Servicer”
means AmeriCredit Financial Services, Inc., as Servicer.


 


“Underwriter Party” means each Underwriter
and its parent, subsidiaries and affiliates and any shareholder, director,
officer, employee, agent or “controlling person” (as such term is used in the
Act) of any of the foregoing.


 


“Underwriters” means Deutsche Bank
Securities Inc., Barclays Capital Inc., Credit Suisse First Boston Corporation,
J.P. Morgan Securities Inc., Lehman Brothers, Inc., and Wachovia Securities,
Inc.


 


“Underwriting Agreement” means the
Underwriting Agreement by and between AmeriCredit, the Seller and the
Underwriters, dated April 9, 2003.


 


Section 2.  Representations and Warranties of the Insurer.  The Insurer represents and warrants to the
Underwriters and AmeriCredit as follows:


 


2

















 


(a)                                  Organization and Licensing. The Insurer is
a duly incorporated and existing New York stock insurance company licensed to
do business in the State of New York and is in good standing under the laws of
such state.


 


(b)                                 Corporate Power. The Insurer has the
corporate power and authority to issue the Policy and execute and deliver this
Agreement and the Insurance Agreement and to perform all of its obligations
hereunder and thereunder.


 


(c)                                  Authorization; Approvals. The issuance of
the Policy and the execution, delivery and performance of this Agreement and
the Insurance Agreement have been duly authorized by all necessary corporate
proceedings. No further approvals or filings of any kind, including, without
limitation, any further approvals of or further filings with any governmental
agency or other governmental authority, or any approval of the Insurer’s board
of directors or stockholders, are necessary for the Policy, this Agreement and
the Insurance Agreement to constitute the legal, valid and binding obligations
of the Insurer.


 


(d)                                 Enforceability. The Policy, when issued,
and this Agreement and the Insurance Agreement will each constitute legal,
valid and binding obligations of the Insurer, enforceable in accordance with their
terms, subject to applicable laws affecting the enforceability of creditors’
rights generally and general equitable principles and public policy
considerations as to rights of indemnification for violations of federal
securities laws.


 


(e)                                  Financial Information. The consolidated
financial statements of the Insurer as of December 31, 2001 and December 31,
2000 and for the three years ended December 31, 2001 incorporated by reference
in the Prospectus Supplement (the “Insurer Audited Financial Statements”)
fairly present in all material respects the financial condition of the Insurer
as of such date and for the period covered by such statements in accordance
with generally accepted accounting principles consistently applied. The
consolidated financial statements of the Insurer and its subsidiaries as of
September 30, 2002 incorporated by reference in the Prospectus Supplement (the
“Insurer Unaudited Financial Statements”) present fairly in all material
respects the financial condition of the Insurer as of such date and for the
period covered by such statements in accordance with generally accepted
accounting principles applied in a manner consistent with the accounting
principles used in preparing the Insurer Audited Financial Statements, and,
since September 30, 2002 there has been no material change in such financial
condition of the Insurer which would materially and adversely affect its
ability to perform its obligations under the Policy.


 


(f)                                    Insurer Information. The information in
the Prospectus Supplement as of the date hereof under the captions “THE POLICY” and “THE INSURER” (the “Insurer Information”) is limited and does
not purport to provide the scope of disclosure required to be included in a
prospectus for a registrant under the Securities Act of 1933,


 


3

















 


in connection
with the public offer and sale of securities of such registrant.  Within such limited scope of disclosure, the
Insurer Information does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.


 


(g)                                 No Litigation. There are no actions,
suits, proceedings or investigations pending or, to the best of the Insurer’s
knowledge, threatened against it at law or in equity or before or by any court,
governmental agency, board or commission or any arbitrator which, if decided
adversely, would materially and adversely affect its condition (financial or otherwise)
or its operations or would materially and adversely affect its ability to
perform its obligations under this Agreement, the Policy or the Insurance
Agreement.


 


Section 3.  Agreements, Representations and Warranties of the
Underwriters.  The
Underwriters represent and warrant to and agree with AmeriCredit and the
Insurer that the statements in the Prospectus Supplement made in reliance upon
and in conformity with written information relating to the Underwriters
furnished to AmeriCredit specifically for use in the preparation of the
Prospectus Supplement, and acknowledged in writing (referred to herein as the
“Underwriter Information”), are true and correct in all material respects.


 


Section 4.  Agreements, Representations and Warranties of
AmeriCredit.  AmeriCredit
represents, warrants to and agrees with the Insurer and the Underwriters that:


 


(a)                                  Registration Statement. The information in
the Registration Statement, the Prospectus and the Prospectus Supplement, other
than the Insurer Information and the Underwriter Information, is true and
correct in all material respects and does not contain any untrue statement of a
fact that is material or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.


 


(b)                                 Representations and Warranties. Each of
the representations and warranties of AmeriCredit contained in the Insurance
Agreement is true and correct in all material respects, and AmeriCredit hereby
makes each such representation and warranty to, and for the benefit of, the
Insurer as if the same were set forth in full herein.


 


Section 5.  Indemnification.


 


(a)                                  The Insurer hereby
agrees, upon the terms and subject to the conditions of this Agreement, to
indemnify, defend and hold harmless each AmeriCredit Party and each Underwriter
Party against any and all Losses incurred by them with respect to the offer and
sale of any of the Offered Notes and resulting from the Insurer’s breach of any
of its representations and warranties set forth in Section 2 of this Agreement.


 


4

















 


(b)                                 The Representative, on
behalf of the Underwriters, hereby agrees, upon the terms and subject to the
conditions of this Agreement, to indemnify, defend and hold harmless each
Insurer Party and each AmeriCredit Party against any and all Losses incurred by
it with respect to the offer and sale of any of the Offered Notes and resulting
from the Repsresentative’s breach of any of its representations and warranties
set forth in Section 3 of this Agreement.


 


(c)                                  AmeriCredit hereby
agrees, upon the terms and subject to the conditions of this Agreement, to
indemnify, defend and hold harmless each Insurer Party against any and all
Losses incurred by it with respect to the offer and sale of any of the Offered
Notes and resulting from AmeriCredit’s breach of any of its representations and
warranties set forth in Section 4 of this Agreement.


 


(d)                                 Upon the incurrence of
any Losses 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.


 


Section 6.  Notice To Be Given.


 


(a)                                  Except as provided in
Section 7 below with respect to contribution, the indemnification provided
herein by the Indemnifying Party shall be the exclusive remedy of each
Indemnified Party for the Losses resulting from the Indemnifying Party’s breach
of a representation, warranty or agreement hereunder; provided, however, that
each Indemnified Party shall be entitled to pursue any other remedy at law or
in equity for any such breach so long as the damages sought to be recovered
shall not exceed the Losses incurred thereby resulting from such breach.


 


(b)                                 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 facsimile notice of such action or
claim reasonably promptly after receipt of written notice thereof.


 


(c)                                  Upon request of the
Indemnified Party, the Indemnifying Party shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party and
any others the Indemnifying Party may designate in such proceeding and shall
pay the fees and disbursements of such counsel related to such proceeding. The
Indemnifying Party may, at its option, at any time upon written notice to the
Indemnified Party, assume the defense of any proceeding and may designate
counsel reasonably satisfactory to the Indemnified Party in connection
therewith, provided that the counsel so designated would have no actual or
potential conflict of interest in connection with such representation. Unless
it shall assume the defense of any proceeding the Indemnifying Party shall not
be liable for any settlement of any proceeding, effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party
from


 


5

















 


and against any loss or liability by reason of such settlement or
judgment. The Indemnifying Party shall be entitled to participate in the
defense of any such action or claim in reasonable cooperation with, and with
the reasonable cooperation of, each Indemnified Party.


 


(d)                                 The Indemnified Party
will have the right to employ its own counsel in any such action, but the fees
and expenses of such counsel will be at the expense of such Indemnified Party
unless (i) the employment of counsel by the Indemnified Party at the
Indemnifying Party’s expense has been authorized in writing by the Indemnifying
Party, (ii) the Indemnifying Party has not in fact employed counsel to assume
the defense of such action within a reasonable time after receiving notice of
the commencement of the action or (iii) the named parties to any such action
include the Indemnifying Party on the one hand and, on the other hand, the
Indemnified Party, and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them
(in which case if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense of such action or proceeding on such Indemnified Party’s behalf),
in each of which cases the reasonable fees and expenses of counsel (including
local counsel) will be at the expense of the Indemnifying Party, and all such
fees and expenses will be reimbursed promptly as they are incurred. In the
event that any expenses so paid by the Indemnifying Party are subsequently
determined not to be required to be borne by the Indemnifying Party hereunder,
the party which received such payment shall promptly refund to the Indemnifying
Party the amount so paid by such Indemnifying Party. Notwithstanding the
foregoing, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, the Indemnifying Party shall not be
liable for the fees and expenses of more than one counsel for all AmeriCredit
Parties, more than one counsel for all Underwriter Parties and more than one
counsel for all Insurer Parties, as applicable.


 


(e)                                  The Indemnified
Parties shall cooperate with the Indemnifying Parties in resolving any event
which would give rise to an indemnity obligation pursuant to Section 5 hereof
in the most efficient manner.


 


(f)                                    No settlement of
any such claim or action shall be entered into without the consent of each
Indemnified Party who is subject to such claim or action, on the one hand, and
each Indemnifying Party who is subject to such claim or action, on the other
hand; provided, however, that the consent of such Indemnified Party shall not
be required if such settlement fully discharges, with prejudice against the plaintiff,
the claim or action against such Indemnified Party.


 


(g)                                 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 materially


 


6

















 


prejudicial to
any legal pleadings, grounds, defenses or remedies in respect thereof or the
Indemnifying Party’s financial liability hereunder, and then only to the extent
of such prejudice.


 


Section 7.  Contribution.


 


(a)                                  To provide for just
and equitable contribution if the indemnification provided by the Insurer is
determined to be unavailable for an Underwriter Party (other than pursuant to
Section 5 or 6 of this Agreement), or if the indemnification provided by any
Underwriter is determined to be unavailable for any Insurer Party (other than
pursuant to Section 5 or 6 of this Agreement), the Insurer and the Underwriters
shall contribute to the aggregate costs of liabilities arising from any breach
of their respective representations and warranties set forth in this Agreement
on the basis of the relative fault of all Insurer Parties and all Underwriter
Parties.


 


(b)                                 To provide for just
and equitable contribution if the indemnification provided by the Insurer is
determined to be unavailable for any AmeriCredit Party (other than pursuant to
Section 5 or 6 of this Agreement), or if the indemnification provided by
AmeriCredit is determined to be unavailable for any Insurer Party (other than
pursuant to Section 5 or 6 of this Agreement), the Insurer and AmeriCredit
shall contribute to the aggregate cost of liabilities arising from any breach
of their respective representations and warranties set forth in this Agreement
on the basis of the relative fault of all Insurer Parties and all AmeriCredit
Parties.


 


(c)                                  To provide for just
and equitable contribution if the indemnification provided by the Underwriter
is determined to be unavailable for any AmeriCredit Party (other than pursuant
to Section 5 or 6 of this Agreement), the Underwriter and AmeriCredit shall
contribute to the aggregate costs of liabilities arising from any breach of
their respective representations and warranties set forth in this Agreement on
the basis of the relative fault of all Underwriter Parties and all AmeriCredit
Parties.


 


(d)                                 The relative fault of
each Indemnifying Party, on the one hand, and of each Indemnified Party, on the
other hand, shall be determined by reference to, among other things, whether
the breach of, or alleged breach of, any of its representations and warranties
set forth in Section 2, 3 or 4 of 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 and opportunity to correct or prevent such breach.


 


(e)                                  The parties agree
that the Insurer shall be solely responsible for the Insurer Information and
for the Insurer Financial Statements, that the Underwriters shall be solely
responsible for the Underwriter Information provided by the Underwriters in
writing for use in the Prospectus Supplement and that AmeriCredit shall be
responsible for all other information in the Registration Statement and in the
Prospectus Supplement.


 


7

















 


(f)                                            No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.


 


(g)                                         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 Underwriter Party, any AmeriCredit Party or any Insurer Party,
(ii) the issuance of any Offered Notes or the Policy or (iii) any termination
of this Agreement.


 


(h)                                         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 8.  Notices.  All notices and other communications
provided for under this Agreement shall be addressed to the address set forth
below as to each party or at such other address as shall be designated by a
party in a written notice to the other party.


 


	
  If to the
  Insurer:

  	
   

  	
  MBIA
  Insurance Corporation

  
	
   

  	
   

  	
  113 King
  Street

  
	
   

  	
   

  	
  Armonk, NY
  10504

  
	
   

  	
   

  	
  Attention:

  	
  Insured
  Portfolio Management—Structured

  
	
   

  	
   

  	
   

  	
  Finance
  (IPM-SF)

  
	
   

  	
   

  	
   

  
	
  If to
  AmeriCredit:

  	
   

  	
  AmeriCredit
  Financial Services, Inc.

  
	
   

  	
   

  	
  801 Cherry
  Street, Suite 3900

  
	
   

  	
   

  	
  Fort Worth,
  TX 76102

  
	
   

  	
   

  	
  Attention:
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
  If to the
  Representative:

  	
   

  	
  Deutsche
  Bank Securities Inc.

  
	
   

  	
   

  	
  31 West 52nd
  Street, 17th Floor

  
	
   

  	
   

  	
  New York, NY
  10019

  
	
   

  	
   

  	
  Attention:
  General Counsel

  



 


Section 9.  Governing Law, Etc.  This Agreement shall be deemed to be a
contract under the laws of the State of New York and shall be governed by and
construed in accordance with the laws of the State of New York without regard
to its conflicts of laws provisions. This Agreement may not be assigned by any
party without the express written consent of each other party. Amendments of
this Agreement shall be in writing signed by each party. This Agreement shall
not be effective until executed by each of the Insurer, AmeriCredit and the
Underwriters.


 


Section 10.  Insurance Agreement; 
Underwriting Agreement; Sale and Servicing Agreement.
This Agreement in no way limits or otherwise affects the indemnification
obligations of AmeriCredit under (a) the Insurance Agreement, (b) the
Underwriting Agreement


 


8

















 


or (c) the Sale and Servicing
Agreement. To the extent that this Agreement conflicts with or does not address
the relative rights of the Underwriters and AmeriCredit as between themselves
as set forth in the Underwriting Agreement, the Underwriting Agreement shall
govern.


 


Section 11.  Limitations.  Nothing in this Agreement shall be construed
as a representation or undertaking by the Insurer concerning maintenance of the
rating currently assigned to its claims-paying ability by Moody’s Investors
Service, Inc. (“Moody’s”) and/or Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc. (“S&P”) or any other rating
agency (collectively, the “Rating Agencies”).


 


Section 12.  Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall together constitute but one and the same
instrument.


 


Section 13.  Nonpetition.  So long as the Insurance Agreement is in
effect, and for one year following its termination, none of the parties hereto
will file any involuntary petition or otherwise institute any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any federal or state bankruptcy or similar law against the
Issuer.


 


[Remainder of this page intentionally left blank.]


 


 


9

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Indemnification Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized, all as of the date first above written.


 


	
   

  	
  MBIA
  INSURANCE CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Amy R.
  Gonch

  
	
   

  	
   

  	
  Assistant
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMERICREDIT
  FINANCIAL SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Beth
  Sorensen

  
	
   

  	
  Title

  	
  Senior Vice
  President, Finance

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK SECURITIES INC. for itself and as representative of the Underwriters

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Frank
  Byrne

  
	
   

  	
  Title

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jay E.
  Steiner

  
	
   

  	
  Title

  	
  Vice
  President

  
					



 


 


10