EXHIBIT 10.1
- --------------------------------------------------------------------------------
INDEMNIFICATION AGREEMENT
among
FINANCIAL SECURITY ASSURANCE INC.,
ACCESS FINANCIAL LENDING CORP.,
ACCESS FINANCIAL RECEIVABLES CORP.,
PRUDENTIAL SECURITIES INCORPORATED
and
MORGAN STANLEY & CO. INCORPORATED
Dated as of October 23, 1997
$199,870,000 Access Financial Mortgage Loan Trust 1997-3,
Mortgage Loan Pass-Through Certificates, Series 1997-3
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
SECTION 1. Definitions.................................................. 1
SECTION 2. Representations, Warranties and
Agreements of Financial Security............................. 3
SECTION 3. Representations, Warranties and
Agreements of the Underwriter................................ 5
SECTION 4. Indemnification.............................................. 6
SECTION 5. Indemnification Procedures................................... 7
SECTION 6. Contribution................................................. 8
SECTION 7. Miscellaneous................................................ 9
EXHIBIT A Opinion of General Counsel
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of October 23, 1997, among FINANCIAL
SECURITY ASSURANCE INC. ("Financial Security"), ACCESS FINANCIAL RECEIVABLES
CORP. (the "Transferor"), ACCESS FINANCIAL LENDING CORP. (the "Company"),
PRUDENTIAL SECURITIES INCORPORATED ("Prudential") and MORGAN STANLEY & CO.
INCORPORATED (each of Prudential and Morgan Stanley & Co. Incorporated, an
"Underwriter"):
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.
"Company Party" means any of the Company, its parent and subsidiaries and
any shareholder, director, officer, employee, agent or "controlling person"
(as such term is used in the Securities Act) of any of the foregoing.
"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
regulations in effect from time to time under such Acts.
"Financial Security Agreements" means this Agreement 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.
-2-
"Insurance Agreement" means the Insurance and Indemnity Agreement, dated as
of October 1, 1997, among Financial Security, the Transferor and the
Company.
"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 Circular" means the Prospectus Supplement relating to the
Securities dated October 23, 1997.
"Offering Document" means the Offering Circular and any other material or
documents delivered by an Underwriter 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.
"Securities" means the Class A Group I Certificates, Class A-6 Group II
Certificates and Class A-7 Group III Certificates issued pursuant to the
Pooling and Servicing Agreement, dated as of October 1, 1997, among the
Company, the Transferor and Chase Manhattan Bank, as trustee.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Transferor Party" means any of the Transferor, its parent and subsidiaries
and any shareholder, director, officer, employee, agent or "controlling
person" (as such term is used in the Securities Act) of any of the
foregoing.
-3-
"Underwriter Information" has the meaning provided in Section 3(c) hereof.
"Underwriter Party" means either Underwriter, or, with respect to either
Underwriter, the parent, subsidiaries and affiliates thereof and any
shareholder, director, officer, employee, agent or "controlling person" (as
such item is used in the Securities Act) of any of the foregoing.
"Underwriting Agreement" means the Underwriting Agreement between the
Company and the Underwriters in respect of the Securities.
Section 2. Representations, Warranties and Agreements of Financial
Security. Financial Security represents, warrants and agrees to and with the
other parties hereto 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
-4-
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, 1995 and December 31, 1996 and the related
consolidated statements of income, changes in shareholder's equity and cash
flows for the fiscal years then ended and the interim consolidated balance
sheet of Financial Security as of June 30, 1997, and the related statements
of income, changes in shareholder's equity and cash flows for the interim
period then ended, furnished by Financial Security to the Underwriters,
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 Offering
Circular set forth under the caption "The Certificate Insurance Policy and
the Certificate Insurer--Certificate 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 Offering Circular and as of
the date hereof, 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 Company, upon request of an Underwriter or the Company,
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);
provided, however, that, if an Underwriter or the Company shall require a
manually signed report or consent of Financial Security's auditors in
connection with such financial statements, such report or consent shall be
at the expense of the relevant Underwriter or the Company, as the case may
be. In
-5-
addition, if the delivery of an Offering Circular relating to the
Securities is required at any time prior to the expiration of nine months
after the time of issue of the Offering Circular in connection with the
offering or sale of the Securities, the Company or an Underwriter will
notify Financial Security of such requirement to deliver an Offering
Circular and Financial Security will promptly provide the Underwriters and
the Company with any revisions to the Financial Security Information that
are in the judgment of Financial Security necessary to prepare an amended
Offering Circular or a supplement to the Offering Circular which will
correct such statement or omission.
(i) Opinion of Counsel. Financial Security will furnish to the
Underwriters, the Company and the Transferor on the closing date for the
sale of the Securities an opinion of its General Counsel, to the effect set
forth in Exhibit A attached hereto, dated such closing date and addressed
to the Transferor, the Company and the Underwriters.
(j) Consents and Reports of Independent Accountants. Financial Security
will furnish to the Underwriters and the Company, 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 Offering Circular, including either a manually signed consent or a
manually signed report of Financial Security's independent accountants and
(ii) the quarterly review letter by Financial Security's independent
accountants in respect of the most recent interim financial statements of
Financial Security.
Nothing in this Agreement shall be construed as a representation or warranty by
Financial Security concerning the rating of its claims-paying ability by Moody's
Investors Service, Inc. or Standard & Poor's, a division of the McGraw-Hill
Companies or any other rating agency (collectively, the "Rating Agencies"). The
Rating Agencies, in assigning such ratings, take into account facts and
assumptions not described in the Offering Circular and the facts and assumptions
which are considered by the Rating Agencies, and the ratings issued thereby, are
subject to change over time.
Section 3. Representations, Warranties and Agreements of the Underwriters.
Each Underwriter represents, warrants and agrees with respect to itself as
follows:
(a) Compliance With Laws. Such Underwriter will comply in all material
respects with all legal requirements in connection with offers and sales of
the Securities and make such offers and sales in the manner provided in the
Offering Circular.
(b) Offering Document. Such Underwriter will not use, or distribute to
other broker-dealers for use, any Offering Document in connection with the
offer and sale of the Securities unless such Offering Document includes
such information as
-6-
has been furnished by Financial Security for inclusion therein and the
informa tion therein concerning Financial Security has been approved by
Financial Security in writing. Financial Security hereby consents to the
information in respect of Financial Security included in the Offering
Circular. Each Offering Document will include the following statement: "The
Policy is not covered by the property/casualty insurance security fund
specified in Article 76 of the New York Insurance Law".
(c) Underwriter Information. All material provided by such Underwriter for
inclusion in the Offering Circular (as revised from time to time, the
"Underwriter Information"), insofar as such information relates to such
Underwriter, is true and correct in all material respects. In respect of
the Offering Circular, the Underwriter Information is limited to the
information set forth under the caption "Underwriting" and any information
relating to any potential market-making, over-allotment or price
stabilization activities of the related Underwriter in the Offering
Circular.
Section 4. Indemnification. (a) Financial Security agrees, upon the terms
and subject to the conditions provided herein, to indemnify, defend and hold
harmless each Transferor Party, each Company Party, and each Underwriter Party
against (i) any and all Losses incurred by them with respect to the offer and
sale of the Securities and resulting from Financial Security's breach of any of
its representations, warranties or agreements set forth in Section 2 hereof and
(ii) any and all Losses to which any Transferor Party, Company Party or
Underwriter Party may become subject, under the Securities Act or otherwise,
insofar as such Losses arise out of or result from an untrue statement of a
material fact contained in any Offering Document 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 Financial
Security Information included therein in accordance with the provisions hereof.
(b) Each Underwriter agrees, severally and not jointly, upon the terms and
subject to the conditions provided herein, to indemnify, defend and hold
harmless each Financial Security Party against (i) any and all Losses incurred
by them with respect to the offer and sale of the Securities and resulting from
such Underwriter's breach of any of its representations, warranties or
agreements set forth in Section 3 hereof and (ii) any and all Losses to which
any Financial Security Party may become subject, under the Securities Act or
otherwise, insofar as such Losses arise out of or result from an untrue
statement of a material fact contained in any Offering Document 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
Underwriter Information included therein.
(c) Upon the incurrence of any Losses for which a party is entitled to
indemnification hereunder, the Indemnifying Party shall reimburse the
Indemnified Party
-7-
promptly upon establishment by the Indemnified Party to the Indemnifying Party
of the Losses incurred.
Section 5. Indemnification Procedures. Except as provided below in Section
6 with respect to contribution, the indemnification provided herein by an
Indemnifying Party shall be the exclusive remedy of any and all Indemnified
Parties for the breach of a representation, warranty or agreement hereunder by
an Indemnifying Party; 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. 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 telegraphic notice of such action or claim
reasonably promptly after receipt of written notice thereof. The Indemnifying
Party shall be entitled to participate in and, upon notice to the Indemnified
Party, assume the defense of any such action or claim in reasonable cooperation
with, and with the reasonable cooperation of, the Indemnified Party. The
Indemnified Party will have the right to employ its own counsel in any such
action in addition to the counsel of the Indemnifying Party, but the fees and
expenses of such counsel will be at the expense of such Indemnified Party,
unless (a) the employment of counsel by the Indemnified Party at its expense has
been authorized in writing by the Indemnifying Party, (b) 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 (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both the Indemnifying Party and one or more Indemnified
Parties, and the Indemnified Parties shall have been advised by counsel that
there may be one or more legal defenses available to them which are different
from or additional to those available to the Indemnifying Party (it being
understood, however, that the Indemnifying Party shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all
Transferor Parties, one such firm for all Underwriter Parties relating to
Prudential, one such firm for all Underwriter Parties relating to Morgan Stanley
& Co. Incorporated, one such firm for all Company Parties, and one such firm for
all Financial Security Parties, as the case may be, which firm shall be
designated in writing by the Transferor in respect of the Transferor Parties, by
the relevant Underwriter in respect of the Underwriter Parties, by the Company
in respect of the Company Parties and by Financial Security in respect of the
Financial Security Parties), in each of which cases the fees and expenses of
counsel will be at the expense of the Indemnifying Party and all such fees and
expenses will be reimbursed promptly as they are incurred. The Indemnifying
Party shall not be liable for any settlement of any such claim or action unless
the Indemnifying Party shall have consented thereto or be in default in its
obligations hereunder. Any failure by an Indemnified Party to comply with the
provisions
-8-
of this Section shall relieve the Indemnifying Party of liability only if such
failure is prejudicial to the position of the Indemnifying Party and then only
to the extent of such prejudice.
Section 6. Contribution. (a) To provide for just and equitable contribution
if the indemnification provided by any Indemnifying Party is determined to be
unavailable for any Indemnified Party (other than due to application of this
Section), each Indemnifying Party shall contribute to the Losses arising from
any breach of any of its representations, warranties or agreements contained in
this Agreement on the basis of the relative fault of each of the parties as set
forth in Section 6(b) below; provided, however, that an Indemnifying Party shall
in no event be required to contribute to all Indemnified Parties an aggregate
amount in excess of the Losses incurred by such Indemnified Parties resulting
from the breach of representations, warranties or agreements contained in this
Agreement.
(b) The relative fault of each Indemnifying Party, on the one hand, and of
each Indemnified Party, on the other, shall be determined by reference to, among
other things, whether the breach of, or alleged breach of, any representations,
warranties or agreements contained in 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.
(c) The parties agree that Financial Security shall be solely responsible
for the Financial Security Information and the Underwriters shall be solely
responsible for the Underwriter Information and that the balance of each
Offering Document shall be the responsibility of the Transferor and the Company
as described in the Insurance Agreement.
(d) Notwithstanding anything in this Section 6 to the contrary, an
Underwriter shall not be required to contribute an amount in excess of the
amount by which the total re-offering price at which the Securities underwritten
by such Underwriter and distributed and offered to the public exceeds the amount
paid under the Underwriting Agreement by such Underwriter for such Securities.
(e) No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(f) 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.
-9-
Section 7. Miscellaneous.
(a) Notices. All notices and other communications provided for under this
Agreement shall be delivered to the address set forth below or to such
other address as shall be designated by the recipient in a written notice
to the other party or parties hereto.
If to Financial Security:
Financial Security Assurance Inc.
350 Park Avenue
New York, NY 10022
Attention: Senior Vice President--
Surveillance (with a copy to the attention of the General Counsel)
If to Transferor:
Access Financial Receivables Corp.
400 Highway 169 South, Suite 410
St. Louis Park, Minnesota 55426-0365
Attention: General Counsel
If to Company:
Access Financial Lending Corp.
400 Highway 169 South, Suite 400
St. Louis Park, Minnesota 55426-0365
Attention: General Counsel
If to Prudential:
Prudential Securities Incorporated
Asset-Backed Finance Group
One New York Plaza, 15th Floor
New York, New York 10292-2015
If to Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
Asset Backed Finance Group
1585 Broadway, 3rd Floor
New York, New York 10036
-10-
(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(c) Assignments. This Agreement may not be assigned by any party without
the express written consent of each other party. Any assignment made in
violation of this Agreement shall be null and void.
(d) Amendments. Amendments of this Agreement shall be in writing signed by
each party hereto.
(e) Survival, Etc. 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
Indemnifying Party, (ii) the issuance of the Securities or (iii) any
termination of this Agreement or the Policy. The indemnification provided
in this Agreement will be in addition to any liability which the parties
may otherwise have and shall in no way limit any obligations of the
Transferor or the Company under the Underwriting Agreement or the Insurance
Agreement, as applicable.
(f) Counterparts. This Agreement may be executed in counterparts by the
parties hereto, and all such counterparts shall constitute one and the same
instrument.
-11-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
FINANCIAL SECURITY ASSURANCE
INC.
By_______________________________
Name ____________________________
Authorized Officer
ACCESS FINANCIAL LENDING CORP.
By
Name Dan J. Cheever
Title Chief Financial Officer
ACCESS FINANCIAL RECEIVABLES
CORP.
By_______________________________
Name ____________________________
Title ___________________________
PRUDENTIAL SECURITIES
INCORPORATED
By_______________________________
Name ____________________________
Title ___________________________
MORGAN STANLEY & CO.
INCORPORATED
By_______________________________
Name ____________________________
Title ___________________________
EXHIBIT A
OPINION OF GENERAL COUNSEL
Based upon the foregoing, I am of the opinion that:
1. 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.
2. The Policy and the Agreements have been duly authorized, executed and
delivered by Financial Security.
3. The Policy and the 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 the
Indemnification Agreement, to principles of public policy limiting the right to
enforce the indemnification provisions contained therein insofar as they relate
to indemnification for liabilities arising under applicable securities laws.
4. The Policy is exempt from registration under the Securities Act of 1933,
as amended (the "Act").
5. Neither the execution or delivery by Financial Security of the Policy or
the Agreements, nor the performance by Financial Security of its obligations
thereunder, will conflict with any provision of the certificate of incorporation
or the by-laws of Financial Security or, to the best of my knowledge, result in
a breach of, or constitute a default under, any agreement or other instrument to
which Financial Security is a party or by which it or any of its property is
bound or, to the best of my knowledge, 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 the Indemnification Agreement,
insofar as they relate to indemnification for liabilities arising under the Act,
are against public policy as expressed in the Act and are therefore
unenforceable).
In addition, please be advised that I have reviewed the description of
Financial Security under the caption "The Certificate Insurance Policy and the
Certificate Insurer--Certificate Insurer" in the Prospectus Supplement dated
October 23, 1997 (the "Offering Document") of the Transferor with respect to the
Securities. The information
-2-
provided in the Offering Document with respect to Financial Security is limited
and does not purport to provide the scope of disclosure required to be included
in a prospectus with respect to a registrant under the Act in connection with
the public offer and sale of securities of such registrant. Within such limited
scope of disclosure, however, there has not come to my attention any information
which would cause me to believe that the description of Financial Security
referred to above, as of the date of the Offering Document or as of the date of
this opinion, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (except that I express no opinion with respect to any financial
statements or other financial information contained or referred to therein).