Exhibit 10.8
INDEMNIFICATION AGREEMENT
▇.▇. ▇▇▇▇▇▇ ACCEPTANCE CORPORATION I
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-A3
WHEREAS, pursuant to the Mortgage Loan Sale and Servicing Agreement dated
as of September 1, 2003 (the "GreenPoint Purchase Agreement"), between ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc. ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), as purchaser, and GreenPoint
Mortgage Funding, Inc. ("GreenPoint"), as seller and as servicer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
purchased from GreenPoint certain mortgage loans (the "GreenPoint Mortgage
Loans");
WHEREAS, pursuant to the Flow Mortgage Loan Sale and Servicing Agreement,
dated October 1, 2003, as amended by Amendment No. 1 thereto dated as of
February 24, 2004 (the "BANA Purchase Agreement") between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as
purchaser, and Bank of America, N.A. ("BANA"), as seller and as servicer, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ purchased from BANA certain mortgage loans (the "BANA Mortgage Loans");
WHEREAS, pursuant to the Mortgage Loan Flow Purchase, Sale & Servicing
Agreement dated as of November 13, 2003 (the "Cendant/MS Purchase Agreement"),
among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as purchaser, Cendant Mortgage Corporation and ▇▇▇▇▇▇'▇
Gate Residential Mortgage Trust, as sellers (the "Cendant Sellers") and Cendant
Mortgage Corporation, as servicer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ purchased from the Cendant
Sellers certain mortgage loans (the "Cendant/MS Mortgage Loans" and, together
with the GreenPoint Mortgage Loans and the BANA Mortgage Loans, the "Specified
Mortgage Loans");
WHEREAS, pursuant to a series of Assignment, Assumption and Recognition
Agreements, each dated as of March 30, 2004, Sunset Financial Resources, Inc.
("Sunset") acquired from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ all of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ right, title and
interest in the Specified Mortgage Loans;
WHEREAS, pursuant to a series of Assignment, Assumption and Recognition
Agreements, each dated as of June 1, 2004, among ▇.▇. ▇▇▇▇▇▇ Acceptance
Corporation I, a Delaware corporation (the "Depositor"), Wachovia Bank, National
Association (the "Trustee"), as trustee of ▇.▇. ▇▇▇▇▇▇ Mortgage Trust 2004-A3,
Sunset and the applicable Originator Sellers, the Depositor acquired from Sunset
all of Sunset's right, title and interest in the Specified Mortgage Loans;
WHEREAS, capitalized terms used but not defined in this Indemnification
Agreement have the meanings ascribed pursuant to the applicable Purchase
Agreements;
WHEREAS, the Depositor will cause the securitization of the Specified
Mortgage Loans pursuant to a Pooling and Servicing Agreement, dated as of June
1, 2004, between the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as master servicer and
securities administrator (the "Master Servicer") and the Trustee, and the
issuance of Mortgage Pass-Through Certificates, Series 2004-A3 (the
"Certificates") thereunder, and pursuant to an Underwriting Agreement and
Purchase Agreement, each dated June 24, 2004, each between the Depositor and
▇.▇. ▇▇▇▇▇▇ Securities Inc. ("JPMSI"), and the sale of the Certificates
thereunder to JPMSI, as underwriter and initial purchaser, respectively;
WHEREAS, in connection with the securitization of the Specified Mortgage
Loans, the Depositor has requested indemnification from Sunset, in respect of
certain information to be used in the underwriting or placement of the
Certificates;
NOW THEREFORE, in consideration of the agreements contained herein, and
other valuable consideration the receipt and sufficiency of which is hereby
acknowledged, Sunset and the Depositor agree as follows:
1. Indemnification and Contribution.
(a) Sunset agrees to indemnify and hold harmless the Depositor, its
officers and directors and each person, if any, who controls the Depositor
within the meaning of either Section 15 of the Securities Act of 1933, as
amended (the "1933 Act") or Section 20 of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), against any and all losses, claims, damages or
liabilities, joint or several, to which the Depositor or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
in whole or in part upon any untrue statement or alleged untrue statement of a
material fact contained in the Sunset Information (as defined below) or any
omission or alleged omission to state in the Sunset Information a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, and agrees
to reimburse the Depositor and each such officer, director and controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by any of them in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which Sunset may otherwise have.
As used herein "Sunset Information" means (x) the information and
data concerning the Specified Mortgage Loans set forth on any computer
tape (or other electronic or printed medium) furnished to the Depositor
and/or JPMSI by Sunset and (y) the information set forth in the Prospectus
Supplement of the Depositor, dated June 24, 2004, under the captions
"Summary -- The Mortgage Loans", "Description of the Mortgage Pools -- The
Mortgage Loans" and "Description of the Mortgage Pools -- Tabular
Characteristics of the Mortgage Loans (Aggregate Pool II)", in each case,
as such information relates to the Specified Mortgage Loans.
(b) The Depositor agrees to indemnify and hold harmless Sunset, its
officers and directors and each person, if any, who controls Sunset within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all losses, claims, damages or liabilities, joint or several, to
which Sunset or any of them may become subject under the 1933 Act, the 1934 Act
or other federal or state statutory law or regulation, at common law or
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otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based in whole or in part upon any untrue
statement or alleged untrue statement of a material fact contained in the
Depositor Information or any omission or alleged omission to state in the
Depositor Information a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they were
made, not misleading, and agrees to reimburse Sunset and each such officer,
director and controlling person promptly upon demand for any legal or other
expenses reasonably incurred by any of them in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which the Depositor may otherwise have.
As used herein "Depositor Information" means all information
contained in the Prospectus Supplement relating to the Certificates dated
June 24, 2004, the accompanying Prospectus, dated February 19, 2004, the
Private Placement Memorandum dated June 29, 2004 relating to the privately
offered Certificates and any amendment or supplement to any of the
foregoing and any other materials used by the Depositor to offer any of
the Certificates, in each case other than the Sunset Information
constituting a part thereof.
(c) Promptly after receipt by any indemnified party under this Section 1
of notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 1, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 1 except to the extent it has been materially
prejudiced by such failure; and provided further, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 1.
If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, except as provided in the following
paragraph, the indemnifying party shall not be liable to the indemnified party
under this Section 1 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
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counsel reasonably satisfactory to the indemnified party, 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
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to local
counsel) at any time for all such indemnified parties.
The indemnifying party shall not be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested the indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) the
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 1 is unavailable
to an indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then the indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities, in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and the indemnified party, respectively, in connection
with the statements or omissions that result in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified party and indemnifying party shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to Sunset Information, on the one hand, or Depositor Information on the
other.
The parties agree that it would not be just and equitable if contribution
pursuant to this Section 1(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the considerations
referred to in this Section 1(d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in this Section 1(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 1, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
In the event that any expenses so paid by the indemnifying party are
subsequently determined to not be required to be borne by the indemnifying party
hereunder, the party which received such payment shall
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promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the 1933 Act), shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 1
and the representations and warranties set forth in Section 2 shall remain
operative and in full force and effect regardless of (i) any termination of the
Purchase Agreement, (ii) any investigation made by either the Depositor or
Sunset, their directors or officers or any person controlling either of them, by
or on behalf of either of them, and (iii) acceptance of and payment for any of
the Certificates.
2. Representations and Warranties. Sunset and the Depositor each represent
that:
(i) such party is validly existing and in good standing under the laws of
its jurisdiction of formation or incorporation, as applicable, and has full
power and authority to own its assets and to transact the business in which it
is currently engaged;
(ii) such party is not required to obtain the consent of any other Person
or any consent, license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Indemnification Agreement;
(iii)the execution, delivery and performance of this Indemnification
Agreement by such party will not violate any provision of any existing law or
regulation or any order decree of any court applicable to such party or any
provision of the charter or bylaws of such party, or constitute a material
breach of any mortgage, indenture, contract or other agreement to which such
party is a party or by which it may be bound; (iv) no proceeding of or before
any court, tribunal or governmental body is currently pending or, to the
knowledge of each party, threatened against such party or any of its properties
or with respect to this Indemnification Agreement or the Specified Mortgage
Loans;
(v) such party has full power and authority to make, execute, deliver and
perform this Indemnification Agreement and all of the transactions contemplated
hereunder, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Indemnification Agreement. When
executed and delivered, this Indemnification Agreement will constitute the
legal, valid and binding obligation of such party enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally, by the availability of equitable remedies, and by
limitations of public policy under applicable securities law as to rights of
indemnity and contribution thereunder; and
(vi) this Indemnification Agreement has been duly executed and delivered
by such party.
3. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Depositor will be mailed, delivered or
telegraphed and confirmed to such party at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Attention: General Counsel's
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Office or, if sent to Sunset will be mailed, delivered or telegraphed and
confirmed to Sunset Financial Resources, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ Boston.
4. Miscellaneous. This Indemnification Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. This
Indemnification Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns and the controlling persons
referred to herein, and no other person shall have any right or obligation
hereunder. Neither this Indemnification Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. This Indemnification Agreement may be
executed in counterparts, each of which when so executed and delivered shall be
considered an original, and all such counterparts shall constitute one and the
same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Indemnification
Agreement to be duly executed by their respective officers hereunto duly
authorized, this 29th day of June, 2004.
▇.▇. ▇▇▇▇▇▇ ACCEPTANCE CORPORATION I
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SUNSET FINANCIAL RESOURCES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: EVP
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