MBIA INSURANCE CORPORATION, as Insurer AMERICREDIT FINANCIAL SERVICES, INC. and CREDIT SUISSE SECURITIES (USA) LLC as the Representative of the Underwriters INDEMNIFICATION AGREEMENT $1,500,000,000 AmeriCredit Automobile Receivables Trust 2007-C-M...
Exhibit 10.2
EXECUTION COPY
EXECUTION COPY
MBIA INSURANCE CORPORATION,
as Insurer
as Insurer
AMERICREDIT FINANCIAL SERVICES, INC.
and
CREDIT SUISSE SECURITIES (USA) LLC
as the Representative of the Underwriters
$1,500,000,000
AmeriCredit Automobile Receivables Trust 2007-C-M
Automobile Receivables Backed Notes
$273,000,000 Class A-1 Notes
$370,000,000 Class A-2 Notes
$175,000,000 Class A-3-A Notes
$271,000,000 Class A-3-B Notes
$150,000,000 Class A-4-A Notes
$261,000,000 Class A-4-B Notes
AmeriCredit Automobile Receivables Trust 2007-C-M
Automobile Receivables Backed Notes
$273,000,000 Class A-1 Notes
$370,000,000 Class A-2 Notes
$175,000,000 Class A-3-A Notes
$271,000,000 Class A-3-B Notes
$150,000,000 Class A-4-A Notes
$261,000,000 Class A-4-B Notes
Dated as of July 17, 2007
TABLE OF
CONTENTS
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Section 1. Definitions |
1 | |||
Section 2. Representations and Warranties of the Insurer |
3 | |||
Section 3. Agreements, Representations and Warranties of the Underwriters |
4 | |||
Section 4. Agreements, Representations and Warranties of AmeriCredit |
4 | |||
Section 5. Indemnification |
5 | |||
Section 6. Notice To Be Given |
6 | |||
Section 7. Contribution |
7 | |||
Section 8. Notices |
9 | |||
Section 9. Governing Law, Etc |
9 | |||
Section 10. Insurance Agreement; Underwriting Agreement; Sale and Servicing
Agreement |
9 | |||
Section 11. Limitations |
9 | |||
Section 12. Counterparts |
9 | |||
Section 13. Nonpetition |
10 | |||
TESTIMONIUM |
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SIGNATURES AND SEALS |
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This Agreement, dated as of July 17, 2007, 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 CREDIT SUISSE SECURITIES (USA) LLC, 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.
“Applicable Time” has the meaning assigned to such term in the Underwriting Agreement.
“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 as of July 18, 2007 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 July 18, 2007, by and among
the Insurer, the Issuer, AmeriCredit, the Seller, the Trustee, the Trust Collateral Agent, the
Collateral Agent and the Backup Servicer.
“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, charge, claim or liability 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 $ 1,500,000,000 AmeriCredit Automobile Receivables Trust 2007-C-M
Automobile Receivables Backed Notes $273,000,000 Class A-1 Notes, $370,000,000 Class A-2 Notes,
$175,000,000 Class A-3-A Notes, $271,000,000 Class A-3-B Notes, $150,000,000 Class A-4-A Notes and
$261,000,000 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.
“Preliminary Prospectus Supplement” means the preliminary Prospectus Supplement dated July 13,
2007 and filed with the Securities and Exchange Commission on July 16, 2007.
“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 July 17, 2007.
“Registration Statement” means the registration statement on Form S-3 of AFS SenSub Corp.
relating to the Offered Notes.
“Sale and Servicing Agreement” means the Sale and Servicing Agreement, dated as of July 18,
2007, by and among the Issuer, the Seller, the Servicer, the Backup 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.
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“Underwriters” means Credit Suisse Securities (USA) LLC, Xxxxxx Brothers Inc., Barclays
Capital Inc., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc., Greenwich Capital
Markets, Inc., and UBS Securities LLC.
“Underwriting Agreement” means the Underwriting Agreement by and between AmeriCredit, the
Seller and the Underwriters, dated July 17, 2007.
Section 2. Representations and Warranties of the Insurer. The Insurer represents and warrants
to the Underwriters and AmeriCredit as follows:
(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, 2006 and December 31, 2005 and for the three years ended December 31, 2006
incorporated by reference in the Preliminary Prospectus Supplement and 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
March 31, 2007 and for the three months ended March 31, 2007 and March 31, 2006 incorporated
by reference in the Preliminary Prospectus Supplement and the Prospectus Supplement present
fairly in all material respects the
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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. Since March 31, 2007, 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 Note Policy.
(f) Insurer Information. The information in each of the Preliminary Prospectus
Supplement and the Prospectus Supplement under the captions “THE POLICY” and “THE INSURER”
(including any information incorporated by reference therein) (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, in connection with the public
offer and sale of securities of such registrant. Within such limited scope of disclosure,
the Insurer Information (i) in the Preliminary Prospectus Supplement, as of the Applicable
Time and as of the Closing Date, and (ii) in the Prospectus Supplement, as of the date
thereof and as of the Closing Date, did not and will not, as applicable, 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. Each Underwriter,
severally, represents and warrants to and agrees with the Insurer that the statements in the
Prospectus Supplement made in reliance upon and in conformity with written information relating to
such Underwriter furnished to AmeriCredit specifically for use in the preparation of the
Preliminary Prospectus Supplement and the Prospectus Supplement, and acknowledged in writing in the
Underwriting Agreement (referred to herein as the “Underwriter 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.
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, the Preliminary Prospectus Supplement and the Prospectus Supplement, other than
the Insurer Information and the Underwriter Information, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the
4
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 (i) the Insurer’s breach of any of its
representations and warranties set forth in Section 2 of this Agreement (ii) any and all
Losses to which each AmeriCredit Party and any Underwriter Party may become subject, under
the Act of otherwise, subject to the limited scope of the Insurer Information described
below insofar as such Losses arise out of or result from an untrue statement of a material
fact contained in the Preliminary Prospectus Supplement or the Prospectus Supplement or the
omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or omission was made in the Insurer Information included therein;
and provided further, that it is understood that 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, in connection with the public offer and sale of
securities of such registrant.
(b) Each Underwriter, hereby agrees, severally and not jointly, 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 such Underwriter 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.
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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; provided, however, that the
failure to notify the Indemnifying Party shall not relieve it of any liability it may have
to an Indemnified Party.
(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 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
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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
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.
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(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) 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.
(d) The parties agree that the Insurer shall be solely responsible for the Insurer
Information and for the Insurer Financial Statements, that each Underwriter shall be solely
responsible for the Underwriter Information provided by such Underwriter 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.
(e) 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.
(f) 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.
(g) 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.
8
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 000 Xxxx Xxxxxx Xxxxxx, XX 00000 Attention: Insured Portfolio Management—Structured Finance (IPM-SF) |
|
If to AmeriCredit:
|
AmeriCredit Financial Services, Inc. 000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxx Xxxxx, XX 00000 Attention: Chief Financial Officer |
|
If to the Representative:
|
Credit Suisse Securities (USA) LLC 00 Xxxxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
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 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 Xxxxx’x Investors Service, Inc. (“Moody’s”) and/or Standard & Poor’s
Ratings Services, a division of The XxXxxx-Xxxx 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.
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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.]
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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 |
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| By | /s/ Xxxxxxxxx Xxxxxx Ciavarello | |||
| Assistant Secretary | ||||
| AMERICREDIT FINANCIAL SERVICES, INC. |
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| By | /s/ Xxxxx X. Xxxxxxxxxx | |||
| Title Vice-President, Structured Finance | ||||
| CREDIT SUISSE SECURITIES (USA) LLC for itself and as Representative of the Underwriters |
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| By | /s/ Xxxx Xxxxxxxxx | |||
| Title Director | ||||
AmeriCredit Automobile Receivables Trust 2007-C-M
Indemnification Agreement Signature Page
Indemnification Agreement Signature Page
