Exhibit 1.2
INDEMNIFICATION AGREEMENT
This Agreement, dated as of __________, is by and among
__________ (the "Insurer"), as the Insurer under the certificate guaranty surety
bond (the "Policy") to be issued in connection with the Certificates described
below, Access Financial Lending Corp. (the "Company"), __________
("Underwriter1") and __________ ("Underwriter2", together with Underwriter1, the
"Underwriters").
1. Definitions. As used in this Agreement, the following terms shall
have the respective meanings stated 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, the Company and the Underwriters.
"Certificates" means the Access Financial Mortgage Loan
Pass-Through Certificates, Series 1996-2, Class A-1 Group I, Class A-2
Group I, Class A-3 Group I, Class A-4 Group I, Class A-5 Group I and
Class A-6 Group II, Class B Group I, Class B Group II, Class RL and
Class RU issued pursuant to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of May 1, 1996 among the
Company, Access Financial Lending Corp., as Master Servicer, and
Norwest Bank Minnesota, National Association, as Trustee.
"Class A Certificates" means the Access Financial Mortgage
Loan Pass-Through Certificates, Series 1996-2, Class A-1 Group I, Class
A-2 Group I, Class A-3 Group I, Class A-4 Group I, Class A-5 Group I,
and Class A-6 Group II, issued pursuant to the Pooling and Servicing
Agreement.
"Company Offering Materials" means the Registration Statement,
the Base Prospectus and the Prospectus Supplement except for the
Underwriter Information.
"Company Party" means the Company, each of its parents,
subsidiaries and affiliates, if any, 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 6 below, as the context requires.
"Indemnifying Party" means any party required to provide
indemnification pursuant to Section 6 below, as the context requires.
"Insurance Agreement" means the Insurance Agreement dated as
of __________ between the Insurer and the Company.
"Insurer Party" means the Insurer and each of its parents,
subsidiaries and affiliates, if any, 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).
"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, dated
__________ as supplemented by the Prospectus Supplement 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 __________ relating to the offer and sale of the
Class A Certificates.
"Registration Statement" means the registration statement on
Form S-3 of the Company (Registration No. 33-_____) relating to the
Certificates in the form in which it has become effective.
"State Securities Law" means any state, local or foreign
statute, and any rule or regulation thereunder, regulating (i)
transactions and dealings in securities, (ii) any person or entity
engaging in such transactions
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or advising with respect to securities or (iii) investment companies.
"Underwriter Information" means the information set forth
under the caption "Underwriting" in the Prospectus Supplement and any
information in the Prospectus Supplement relating to any potential
market-making, over-allotment or price stabilization activities of the
Underwriters.
"Underwriter1 Party" means Underwriter1 and its parents,
subsidiaries and affiliates, if any, and any shareholder, director,
officer, employee, agent or "controlling person" (as such term is used
in the Act) of any of the foregoing.
"Underwriter2 Party" means Underwriter2 and its parents,
subsidiaries and affiliates, if any, and any shareholder, director,
officer, employee, agent or "controlling person" (as such term is used
in the Act) of any of the foregoing.
"Underwriting Agreement" means the Underwriting Agreement by
and among the Company and the Underwriters, dated __________.
2. Representations and Warranties of the Insurer. The Insurer
represents and warrants to the Underwriters and the Company as follows:
(a) Organization and Licensing. The Insurer is a duly
incorporated and existing __________ licensed to do business in the
State of New York.
(b) Corporate Power. The Insurer has the corporate power and
authority to issue the Policy and execute and deliver this 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
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 filing 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 and this Agreement to constitute the legal, valid and binding
obligations of the Insurer.
(d) No Conflicts. The execution and delivery of this Agreement
and consummation of the transactions contemplated hereunder will not
result in the breach of
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any terms or provisions of the certificate of incorporation or by-laws
of the Insurer, or result in the breach of a term or provision of, or
conflict with or constitute a default under or result in the
acceleration of any obligation under, any material agreement or other
material instrument to which the Insurer or its property is subject, or
result in the violation of any law, rule, regulation, order, judgment
or decree to which the Insurer or any of its property is subject or
result in the creation of any lien on any of the Insurer's assets or
property (other than pursuant to this Agreement).
(e) Enforceability. The Policy, when issued, and this
Agreement, will each constitute a legal, valid and binding obligation
of the Insurer, enforceable in accordance with its terms subject to
applicable laws affecting the enforceability of creditors' rights
generally and general principles of equity.
(f) Financial Information. The balance sheets of the
Insurer as of __________ and ___________ and the related statements of
income, stockholders' equity and cash flows for the fiscal years then
ended, and the accompanying footnotes, together with an opinion thereon
dated __________ of __________, independent certified public
accountants, a copy of which is attached as Appendix A to the
Prospectus Supplement (the "Insurer Financial Statements"), fairly
present in all material respects the financial condition of the Insurer
as of such dates and for the periods covered by such statements in
accordance with generally accepted accounting principles consistently
applied, and, since __________, 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.
(g) Insurer Information. The information in the
Prospectus Supplement as of the date hereof under the caption "The
Certificate Insurance Policy and the Certificate Insurer"
(collectively, the "Insurer Information") is true and correct in all
material respects and does not contain any untrue statement of a fact
that is material to the Insurer's ability to perform its obligations
under the Policy.
(h) 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 ____________________ or any other rating agency
(collectively, the "Rating Agencies"). The Rating Agencies, in
assigning such rating, may take into account
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facts and assumptions not described in the Prospectus or the Prospectus
Supplement, and the facts and assumptions which are considered by the
Rating Agencies are subject to change over time. The Insurer has not
attempted to disclose all facts and assumptions which the Rating
Agencies deem relevant in assigning a rating within a particular rating
category to the Insurer's claims-paying ability. Notwithstanding the
foregoing, the Insurer is not aware of any facts that, if disclosed to
Moody's, S&P or Fitch, would be reasonably expected to result in a
downgrade of the rating of the claims-paying ability of the Insurer by
either of such Rating Agencies.
(i) 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 operations of it or would
materially and adversely affect its ability to perform its obligations
under this Agreement or the Policy.
(j) 1933 Act Registration. The Policy is exempt from
registration under the Act.
3. Agreements, Representations and Warranties of the
Underwriters. The Underwriters, severally and not jointly, represent and warrant
to and agree with the Company and the Insurer that the statements contained in
the Prospectus Supplement under the caption "Underwriting" (referred to herein
as the "Underwriter Information") are true and correct in all material respects.
4. [reserved]
5. Agreements, Representations and Warranties of the Company.
The Company represents and warrants to and agrees with the Insurer and the
Underwriters as follows:
(a) Company Offering Materials. The information in
the Company Offering Materials 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 fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(b) Organization. The Company is duly incorporated and
existing under the laws of the State of Delaware and is in good
standing as a foreign corporation in each jurisdiction in which the
nature of its business,
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or the properties owned or leased by it make such qualification
necessary.
(c) Corporate Power. The Company has the corporate
power and authority to execute and deliver this Agreement, the
Underwriting Agreement, the Insurance Agreement and the Pooling and
Servicing Agreement (together, the "Company Agreements") and to perform
all of its obligations hereunder and thereunder.
(d) Authorization; Approvals. The execution, delivery
and performance of the Company Agreements 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 filing with any governmental agency or other governmental
authority (other than approvals and filings relating to servicing), or
any approval of the Company's board of directors or stockholders, are
necessary for the Company Agreements to constitute the legal, valid and
binding obligations of the Company.
(e) No Conflicts. The execution and delivery of this
Agreement and consummation of the transactions contemplated hereunder
will not result in the breach of any terms or provisions of the
certificate of incorporation or by-laws of Company or result in the
breach of a term or provision of, or conflict with or constitute a
default under or result in the acceleration of any obligation under,
any material agreement or other material instrument to which the
Company or its property is subject, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Company
or any of its property is subject or result in the creation of any lien
on any of the Company's assets or property (other than pursuant to this
Agreement).
(f) Enforceability. Each of the Company Agreements
will constitute a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms subject, as to the enforcement
of remedies, to bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the enforceability of creditors' rights
generally applicable in the event of the bankruptcy, insolvency or
reorganization of the Company and to general principles of equity.
(g) No Litigation. There are no actions, suits,
proceedings or investigations pending, or to the best of the Company's
knowledge, threatened against it at law or in equity or before any
court, governmental agency, board or commission or any arbitrator
which, if
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decided adversely, would materially and adversely affect its condition
(financial or otherwise) or operations of it or would materially and
adversely affect its ability to perform its obligations under the
Company Agreements.
6. Indemnification.
(a) The Insurer hereby agrees, upon the terms and
subject to the conditions of this Agreement, to indemnify, defend and
hold harmless each Company Party, each Underwriter1 Party and each
Underwriter2 Party against any and all Losses incurred by them with
respect to the offer and sale of the Certificates and resulting from
the Insurer's breach of any of its representations and warranties set
forth in Section 2 of this Agreement.
(b) The Underwriters, severally and not jointly,
hereby agree, 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 them which arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a
material fact in the Underwriter Information or (ii) the omission or
alleged omission to state in the Underwriter Information a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(c) The Company 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
them with respect to the offer and sale of the Certificates and
resulting from the Company's breach of any of its representations and
warranties set forth in Section 5 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.
7. Insurer Undertaking. The Insurer hereby agrees that, for so
long as the Underwriters are required under the Act to deliver a Prospectus in
connection with the sale of the Class A Certificates, the Insurer will furnish
to either or both of the Underwriters or the Company upon written request of
such party or parties and at the expense of such requesting party, copies of the
Insurer's most recent financial statements (annual or interim, as the case may
be) prepared in accordance with generally accepted accounting principles
(subject, as to interim statements, to normal year-end
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adjustments and to the absence of footnotes) within a reasonable time after they
are available.
8. Notice to be Given to the Insurer. Except as provided in
Section 13 below with respect to contribution, the indemnification provided
herein by the Insurer shall be the exclusive remedy of the Underwriter1 Party,
the Underwriter2 Party or the Company Party for the Losses resulting from the
Insurer's breach of a representation, warranty or agreement hereunder; provided,
however, that the Underwriter1 Party, the Underwriter2 Party or the Company
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
the Underwriter1 Party, the Underwriter2 Party or the Company Party to be
indemnified under this Agreement, such party shall give the Insurer notice in
writing or by facsimile of such action or claim reasonably promptly after
receipt of written notice thereof. The Insurer shall be entitled to participate
in the defense of any such action or claim in reasonable cooperation with, and
with the reasonable cooperation of, the Company Party, the Underwriter1 Party,
or the Underwriter2 Party, as the case may be. The Indemnified Party will have
the right to employ its own counsel in any such action in addition to counsel
for the Insurer, but the fees and expenses of such counsel will be at the
expense of such Indemnified Party unless (1) the employment of counsel by the
Indemnified Party at its expense has been authorized in writing by the Insurer,
or (2) the Insurer 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 (3) the named parties to any such action include the Insurer
on the one hand, and, on the other hand, the Indemnified Party, and such
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Insurer (in which case, if such Indemnified Party
notifies the Insurer in writing that it elects to employ separate counsel at the
expense of the Insurer, the Insurer 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 Insurer and all such fees and expenses
will be reimbursed promptly as they are incurred but, 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
Insurer shall not be liable for the fees and expenses of more than one counsel
for all Company Parties, and more than one counsel for all Underwriter1 Parties
and Underwriter2 Parties combined. The Underwriter1 Parties, the
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Underwriter2 Parties and the Company Parties shall cooperate with the Insurer
Parties in resolving any event which would give rise to an indemnity obligation
pursuant to Section 6(a) hereof in the most efficient manner. No settlement of
any such claim or action shall be entered into without the consent of the
Company Party, the Underwriter1 Party or the Underwriter2 Party, as the case may
be, who is subject to such claim or action, on the one hand and the Insurer
Party who is subject to such claim or action on the other hand, provided,
however, that the consent of such Company Party, Underwriter1 Party or such
Underwriter2 Party, as applicable, shall not be required if such settlement
fully discharges, with prejudice against the plaintiff, the claim or action
against such Company Party, Underwriter1 Party or Underwriter2 Party. Any
failure by a Company Party, Underwriter1 Party or Underwriter2 Party, as the
case may be, to comply with the provisions of this Section shall relieve the
Insurer of liability only if such failure is materially prejudicial to any legal
pleadings, grounds, defenses or remedies in respect thereof or the Insurer's
financial liability hereunder and then only to the extent of such prejudice.
9. Notice to be Given to Underwriter1. Except as provided
below in Section 13 with respect to contribution, the indemnification provided
herein by Underwriter1 shall be the exclusive remedy of any Insurer Party for
the Losses resulting from Underwriter1's breach of a representation, warranty or
agreement hereunder; provided, however, that the Insurer 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 Insurer
Party to be indemnified under this Agreement, such party shall give Underwriter1
notice in writing or by facsimile of such action or claim reasonably promptly
after receipt of written notice thereof. Underwriter1 shall be entitled to
participate in the defense of any such action or claim in reasonable cooperation
with, and with the reasonable cooperation of, the Insurer Party. The Indemnified
Party will have the right to employ its own counsel in any such action in
addition to counsel for Underwriter1, but the fees and expenses of such counsel
will be at the expense of such Indemnified Party unless (1) the employment of
counsel by the Indemnified Party at its expense has been authorized in writing
by Underwriter1, or (2) Underwriter1 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 (3) the named parties to any such action
include Underwriter1 on the one hand, and on the other hand, the Indemnified
Party, and such Indemnified Party shall have been advised by counsel that there
may be one or more legal defenses available to it which
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are different from or additional to those available to Underwriter1 (in which
case, if such Indemnified Party notifies Underwriter1 in writing that it elects
to employ separate counsel at the expense of Underwriter1, Underwriter1 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 will be at the expense of Underwriter1 and all such fees and
expenses will be reimbursed promptly as they are incurred but, 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, Underwriter1 shall not be liable for the fees and expenses of
more than one counsel for all Insurer Parties. The Insurer Party shall cooperate
with the Underwriter1 Party in resolving any event which would give rise to an
indemnification obligation pursuant to Section 6(b) hereof in the most efficient
manner. No settlement of any such claim or action shall be entered into without
the consent of the Insurer Party who is subject to such claim or action, on the
one hand and Underwriter1 Party who is subject to such claim or action on the
other hand; provided, however, that the consent of such Insurer Party shall not
be required if such settlement fully discharges, with prejudice against the
plaintiff, the claim or action against such Insurer Party. Any failure by an
Insurer Party to comply with the provisions of this Section shall relieve
Underwriter1 of liability only if such failure is materially prejudicial to any
legal pleadings, grounds, defenses or remedies in respect thereof or
Underwriter1's liability hereunder and then only to the extent of such
prejudice.
10. Notice to be Given to Underwriter2. Except as provided
below in Section 13 with respect to contribution, the indemnification provided
herein by Underwriter2 shall be the exclusive remedy of any Insurer Party for
the Losses resulting from Underwriter2's breach of a representation, warranty or
agreement hereunder; provided, however, that the Insurer 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 Insurer
Party to be indemnified under this Agreement, such party shall give Underwriter2
notice in writing or by facsimile of such action or claim reasonably promptly
after receipt of written notice thereof. Underwriter2 shall be entitled to
participate in the defense of any such action or claim in reasonable cooperation
with, and with the reasonable cooperation of, the Insurer Party. The Indemnified
Party will have the right to employ its own counsel in any such action in
addition to counsel for Underwriter2, but the fees and expenses of such counsel
will
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be at the expense of such Indemnified Party unless (1) the employment of counsel
by the Indemnified Party at its expense has been authorized in writing by
Underwriter2, or (2) Underwriter2 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 (3) the named parties to any such action include
Underwriter2 on the one hand, and on the other hand, the Indemnified Party, and
such Indemnified Party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to Underwriter2 (in which case, if such Indemnified Party
notifies Underwriter2 in writing that it elects to employ separate counsel at
the expense of Underwriter2, Underwriter2 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 will be at the
expense of Underwriter2 and all such fees and expenses will be reimbursed
promptly as they are incurred but, 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, Underwriter2 shall not be
liable for the fees and expenses of more than one counsel for all Insurer
Parties. The Insurer Party shall cooperate with the Underwriter2 Party in
resolving any event which would give rise to an indemnification obligation
pursuant to Section 6(b) hereof in the most efficient manner. No settlement of
any such claim or action shall be entered into without the consent of the
Insurer Party who is subject to such claim or action, on the one hand and
Underwriter2 Party who is subject to such claim or action on the other hand;
provided, however, that the consent of such Insurer Party shall not be required
if such settlement fully discharges, with prejudice against the plaintiff, the
claim or action against such Insurer Party. Any failure by an Insurer Party to
comply with the provisions of this Section shall relieve Underwriter2 of
liability only if such failure is materially prejudicial to any legal pleadings,
grounds, defenses or remedies in respect thereof or Underwriter2's liability
hereunder and then only to the extent of such prejudice.
11. [reserved]
12. Notice to be Given to the Company. Except as provided
below in Section 13 with respect to contribution, the indemnification provided
herein by the Company shall be the exclusive remedy of any Insurer Party for the
Losses resulting from the Company's breach of a representation, warranty or
agreement hereunder; provided, however, that the Insurer 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
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resulting from such breach. In the event that any action or regulatory
proceeding shall be commenced or claim asserted which may entitle an Insurer
Party to be indemnified under this Agreement, such party shall give the Company
notice in writing or by facsimile of such action or claim reasonably promptly
after receipt of written notice thereof. The Company shall be entitled to
participate in the defense of any such action or claim in reasonable cooperation
with, and with the reasonable cooperation of, the Insurer Party. The Indemnified
Party will have the right to employ its own counsel in any such action in
addition to counsel for the Company, but the fees and expenses of such counsel
will be at the expense of such Indemnified Party unless (1) the employment of
counsel by the Indemnified Party at its expense has been authorized in writing
by the Company, or (2) the Company 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 (3) the named parties to any such action
include the Company on the one hand, and on the other hand, the Indemnified
Party, and such Indemnified Party shall have been advised by counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the Company (in which case, if such Indemnified
Party notifies the Company in writing that it elects to employ separate counsel
at the expense of the Company, the Company 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 will be at the
expense of the Company and all such fees and expenses will be reimbursed
promptly as they are incurred but, 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 Company shall not be
liable for the fees and expenses of more than one counsel for all Insurer
Parties. The Insurer Party shall cooperate with the Company Party in resolving
any event which would give rise to an indemnification obligation pursuant to
Section 6(d) hereof in the most efficient manner. No settlement of any such
claim or action shall be entered into without the consent of the Insurer Party,
who is subject to such claim or action, on the one hand and the Company Party on
the other hand; provided, however, that the consent of such Insurer Party shall
not be required if such settlement fully discharges, with prejudice against the
plaintiff, the claim or action against such Insurer Party. Any failure by an
Insurer Party to comply with the provisions of this Section shall relieve the
Company of liability only if such failure is materially prejudicial to any legal
pleadings, grounds, defenses, or remedies in respect thereof or the Company's
liability hereunder and then only to the extent of such prejudice.
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13. Contribution.
(a) To provide for just and equitable contribution if
the indemnification provided by the Insurer is determined to be
unavailable for any Underwriter1 Party, Underwriter2 Party, Company
Party (other than pursuant to Section 6 or 8 of this Agreement), the
Insurer shall contribute to the aggregate costs of liabilities arising
from any breach of a representation or warranty set forth in this
Agreement on the basis of the relative fault of all Underwriter1
Parties, all Underwriter2 Parties, all Company Parties and all Insurer
Parties.
(b) To provide for just and equitable contribution if
the indemnification provided by the Company is determined to be
unavailable for any Insurer Party (other than pursuant to Section 6 or
12 of this Agreement), the Company shall contribute to the aggregate
costs of liabilities arising from any breach of a representation or
warranty set forth in this Agreement on the basis of the relative fault
of all Underwriter1 Parties, all Underwriter2 Parties, all Company
Parties and all Insurer Parties.
(c) To provide for just and equitable contribution if
the indemnification provided by Underwriter1 is determined to be
unavailable for any Insurer Party (other than pursuant to Section 6 or
9 of this Agreement), Underwriter1 shall contribute to the aggregate
costs of liabilities arising from (i) any untrue statement or alleged
untrue statement of a material fact in the Underwriter Information or
(ii) the omission or alleged omission to state in the Underwriter
Information a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading on the basis of the relative fault
of all Underwriter1 Parties, all Underwriter2 Parties, all Company
Parties and all Insurer Parties; provided however, that the
Underwriter1 Party shall not be liable for any amount in excess of (i)
the excess of the sales prices of the Class A Certificates to the
public over the prices paid therefor by Underwriter1, over (ii) the
aggregate amount of any damages which the Underwriter1 Party has been
otherwise required to pay in respect of the same or any substantially
similar claim.
(d) To provide for just and equitable contribution if
the indemnification provided by Underwriter2 is determined to be
unavailable for any Insurer Party (other than pursuant to Section 6 or
10 of this Agreement), Underwriter2 shall contribute to the
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aggregate costs of liabilities arising from (i) any untrue statement or
alleged untrue statement of a material fact in the Underwriter
Information or (ii) the omission or alleged omission to state in the
Underwriter Information a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading on the basis
of the relative fault of all Underwriter1 Parties, all Underwriter2
Parties, all Company Parties and all Insurer Parties; provided however,
that the Underwriter2 Party shall not be liable for any amount in
excess of (i) the excess of the sales prices of the Class A
Certificates to the public over the prices paid therefor by
Underwriter2, over (ii) the aggregate amount of any damages which the
Underwriter2 Party has been otherwise required to pay in respect of the
same or any substantially similar claim.
(e) 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 of its representations and warranties set
forth in Section 2, 3, 4 or 5 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.
(f) The parties agree that the Insurer shall be
solely responsible for the Insurer Information and for the Insurer
Financial Statements, that the Underwriters, severally and not jointly,
shall be solely responsible for the Underwriter Information, and the
Company shall be responsible for the Company Offering Materials.
(g) 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.
(h) 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 Underwriter1 Party, any Underwriter2 Party, any Company Party or
any Insurer Party, (ii) the issuance of the Certificates or the Policy
or (iii) any termination of this Agreement.
(i) Upon the incurrence of any Losses entitled
to contribution hereunder, the contributor shall
14
reimburse the party entitled to contribution promptly upon
establishment by the party entitled to contribution to the contributor
of the Losses incurred.
It is understood and agreed that the indemnities set forth in
this Agreement shall service the execution and delivery of this Agreement and
the issuance, sale and delivery of the Class A Certificates.
14. 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: ____________________________________
____________________________________
____________________________________
Attention: _____________
If to the Company: Access Financial Lending Corp.
400 Highway 169 South, Suite 400
Post Office Box 26365
St. Louis Park, MN 55426-0365
Attention: General Counsel
If to Underwriter1: ____________________________________
____________________________________
____________________________________
Attention: _____________
If to Underwriter2: ____________________________________
____________________________________
____________________________________
Attention: _____________
15. 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, the Company and the
Underwriters.
15
16. Underwriting Agreement; Pooling and Servicing Agreement.
This Agreement in no way limits or otherwise affects the indemnification
obligations of the Company under (a) the Underwriting Agreement or (b) the
Pooling and Servicing Agreement.
17. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall together constitute but one and the same
instrument.
16
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized, all as of the date first above written.
____________________________________
By:______________________________
Name:
Title:
ACCESS FINANCIAL LENDING CORP.
By:______________________________
Name:
Title:
UNDERWRITER1
By:______________________________
Name:
Title:
UNDERWRITER2
By:______________________________
Name:
Title:
[Indemnification Agreement]