Exhibit 10.1
EXECUTION COPY
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MBIA INSURANCE CORPORATION,
as Insurer
GREENPOINT MORTGAGE FUNDING, INC.,
as Seller and Servicer
and
GREENWICH CAPITAL MARKETS, INC.,
as Underwriter
INDEMNIFICATION AGREEMENT
$445,000,000
GreenPoint Home Equity Loan Trust 2001-2
Home Equity Loan Asset-Backed Notes, Series 2001-2
$100,000,000 Class A-1 Variable Rate Asset-Backed Notes
$100,000,000 Class A-2 Variable Rate Asset-Backed Notes
$245,000,000 Class A-3 Variable Rate Asset-Backed Notes
Class S Certificates
Dated as of November 6, 2001
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TABLE OF CONTENTS
Page
Section 1. Definitions....................................................1
Section 2. Representations and Warranties of the Insurer..................2
Section 3. Agreements, Representations and Warranties of the Underwriter..4
Section 4. Agreements, Representations and Warranties of the Seller.......4
Section 5. Indemnification................................................5
Section 6. Notice To Be Given.............................................6
Section 7. Contribution...................................................8
Section 8. Notices........................................................9
Section 9. Governing Law, Etc.............................................9
Section 10. Insurance Agreement; Underwriting Agreement;
Sale and Servicing Agreement..................................10
Section 11. Limitations...................................................10
Section 12. Counterparts..................................................10
TESTIMONIUM
SIGNATURES AND SEALS
INDEMNIFICATION AGREEMENT
This Agreement, dated as of November 6, 2001 is by and among MBIA
Insurance Corporation (the "Insurer"), as the Insurer under the Financial
Guaranty Insurance Policy (the "Policy") issued in connection with the Offered
Notes and the Class S Certificates described below, GreenPoint Mortgage Funding,
Inc., as Seller and Servicer (the "Seller") and Greenwich Capital Markets, Inc.
(the "Underwriter").
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, the Seller and the Underwriter.
"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 November 1, 2001, between
the Trust and the Indenture Trustee.
"Insurance Agreement" means the Insurance Agreement, dated as of
November 1, 2001 by and among the Insurer, the Trust, the Seller, the Sponsor,
the Servicer, and the Indenture Trustee.
"Insurer Party" means the Insurer and its respective parents,
subsidiaries and affiliates and any shareholder, director, officer, employee,
agent or any "controlling person" (as such term is used in the Act) of any of
the foregoing.
"Losses" means (i) any actual out-of-pocket loss paid by the party
entitled to indemnification or contribution hereunder and (ii) any actual
out-of-pocket costs and expenses paid by such party, including reasonable fees
and expenses of its counsel, to the extent not paid, satisfied or reimbursed
from funds provided by any other Person (provided that the foregoing shall not
create or imply any obligation to pursue recourse against any such other
Person).
"Offered Notes" means the $445,000,000 GreenPoint Home Equity Loan
Trust 2001-2, Home Equity Loan Asset-Backed Notes, Series 2001-2, $100,000,000
Class A-1 Variable Rate Asset-Backed Notes, $100,000,000 Class A-2 Variable Rate
Asset-Backed Notes, and $245,000,000 Class A-3 Variable Rate Asset-Backed Notes,
issued pursuant to the Indenture
"Person" means any individual, partnership, joint venture, corporation,
trust or unincorporated organization or any government or agency or political
subdivision thereof.
"Prospectus" means the form of final Prospectus included in the
Registration Statement on each date that the Registration Statement and any post
effective amendment or amendments thereto became effective.
"Prospectus Supplement" means the form of final Prospectus Supplement,
dated November 6, 2001 and filed with the Securities and Exchange Commission on
November 19, 2001.
"Registration Statement" means the registration statement on Form S-3
of the Seller relating to the Offered Notes.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of November 1, 2001, by and among the Sponsor, the Servicer, the Trust
and the Indenture Trustee.
"Seller Party" means the Seller, 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.
"Servicer" means GreenPoint Mortgage Funding, Inc., as Servicer.
"Sponsor" means GreenPoint Mortgage Securities Inc., as Sponsor.
"Underwriter Party" means the 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.
"Underwriting Agreement" means the Underwriting Agreement among the
Seller, Greenwich Mortgage Securities Inc., and the Underwriter, dated November
6, 2001.
Section 2. Representations and Warranties of the Insurer. The Insurer
represents and warrants to the Underwriter and the Seller 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.
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(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, 2000 and December 31, 1999
and for each of the three years ended December 31, 2000 incorporated by
reference in the Prospectus Supplement (the "Insurer Audited Financial
Statements"), fairly present in all material respects the financial
condition of the Insurer as of such date and for the period covered by
such statements in accordance with generally accepted accounting
principles consistently applied. The consolidated financial statements
of the Insurer and its subsidiaries as of September 30, 2001 and for
the nine months ended September 30, 2001 and September 30, 2000
incorporated by reference in the Prospectus Supplement (the "Insurer
Unaudited Financial Statements") present fairly in all material
respects the financial condition of the Insurer as of such date and for
the period covered by such statements in accordance with generally
accepted accounting principles applied in a manner consistent with the
accounting principles used in preparing the Insurer Audited Financial
Statements, and, since September 30, 2001 there has been no material
change in such financial condition of the Insurer which would
materially and adversely affect its ability to perform its obligations
under the Policy.
(f) Insurer Information. The information in the Prospectus
Supplement as of the date hereof under the captions "THE INSURER AND
THE POLICY" (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 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.
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(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
Underwriter. The Underwriter represents and warrants to and agrees with the
Seller and the Insurer that the statements in the Prospectus Supplement made in
reliance upon and in conformity with written information relating to the
Underwriter furnished to the Seller specifically for use in the preparation of
the Prospectus Supplement, specifically the information, other than Derived
Information (as defined in the Underwriting Agreement), which is set forth (i)
in the next-to-last sentence of the next-to-last paragraph on page S-1 of the
Prospectus Supplement, (ii) in the first two sentences of the paragraph
immediately preceding the Table of Contents on page S-2 of the Prospectus
Supplement and (iii) in the third paragraph under the heading "Method of
Distribution" of the Prospectus Supplement (referred to herein as the
"Underwriter Information"), are true and correct in all material respects.
Section 4. Agreements, Representations and Warranties of the Seller.
The Seller represents, warrants to and agrees with the Insurer and the
Underwriter as follows:
(a) Registration Statement. The information in the
Registration Statement, the Prospectus and the Prospectus Supplement,
other than the Insurer Information and the Underwriter Information, is
true and correct in all material respects and does not contain any
untrue statement of a fact that is material or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) Organization. The Seller is duly incorporated and existing
under the laws of the State of New York and is in good standing as a
foreign corporation in each jurisdiction in which the nature of its
business, or the properties owned or leased by it, makes such
qualification necessary.
(c) Corporate Power. The Seller has the corporate power and
authority to execute and deliver this Agreement, the Underwriting
Agreement, the Sale and Servicing Agreement, the Mortgage Loan Purchase
Agreement and the Insurance Agreement and to perform all of its
obligations hereunder and thereunder in all material respects
(d) Authorization; Approvals. The execution, delivery and
performance of this Agreement, the Underwriting Agreement, the Sale and
Servicing Agreement, the Mortgage Loan Purchase Agreement and the
Insurance Agreement by the Seller 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 Seller's board of directors or
stockholders, are necessary for this Agreement, the Underwriting
Agreement, the Sale and Servicing Agreement, the Mortgage Loan Purchase
Agreement and the Insurance Agreement to constitute the legal, valid
and binding obligations of the Seller.
(e) Enforceability. This Agreement, the Underwriting
Agreement, the Sale and Servicing Agreement, the Mortgage Loan Purchase
Agreement and the Insurance Agreement will each constitute legal, valid
and binding obligations of the Seller, enforceable in accordance with
their 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 Seller and
to general principles of equity.
(f) No Litigation. There are no actions, suits, proceedings or
investigations pending or, to the best of the Seller's knowledge,
threatened against it at law or in equity or before 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 Underwriting Agreement, the Sale and Servicing
Agreement, the Mortgage Loan Purchase Agreement or the Insurance
Agreement.
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 Seller Party and each Underwriter Party against any and
all Losses incurred by them with respect to the offer and sale of any
of the Offered Notes and resulting from the Insurer's breach of any of
its representations and warranties set forth in Section 2 of this
Agreement.
(b) The Underwriter 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 the Underwriter's breach of any of its representations
and warranties set forth in Section 3 of this Agreement.
(c) The Seller 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 the Seller's breach of any of its representations and
warranties set forth in Section 4 of this Agreement.
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(d) Upon the incurrence of any Losses entitled to
indemnification hereunder, the Indemnifying Party shall reimburse the
Indemnified Party promptly upon establishment by the Indemnified Party
to the Indemnifying Party of the Losses incurred.
Section 6. Notice To Be Given.
(a) Except as provided in Section 7 below with respect to
contribution, the indemnification provided herein by the Indemnifying
Party shall be the exclusive remedy of each Indemnified Party for the
Losses resulting from the Indemnifying Party's breach of a
representation, warranty or agreement hereunder; provided, however,
that each Indemnified Party shall be entitled to pursue any other
remedy at law or in equity for any such breach so long as the damages
sought to be recovered shall not exceed the Losses incurred thereby
resulting from such breach.
(b) In the event that any action or regulatory proceeding
shall be commenced or claim asserted which may entitle an Indemnified
Party to be indemnified under this Agreement, such party shall give the
Indemnifying Party written or facsimile notice of such action or claim
reasonably promptly after receipt of written notice thereof.
(c) Upon request of the Indemnified Party, the Indemnifying
Party shall retain counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. The
Indemnifying Party may, at its option, at any time upon written notice
to the Indemnified Party, assume the defense of any proceeding and may
designate counsel reasonably satisfactory to the Indemnified Party in
connection therewith, provided that the counsel so designated would
have no actual or potential conflict of interest in connection with
such representation. Unless it shall assume the defense of any
proceeding the Indemnifying Party shall not be liable for any
settlement of any proceeding, effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the Indemnified
Party from and against any loss or liability by reason of such
settlement or judgment. The Indemnifying Party shall be entitled to
participate in the defense of any such action or claim in reasonable
cooperation with, and with the reasonable cooperation of, each
Indemnified Party.
(d) The Indemnified Party will have the right to employ its
own counsel in any such action, but the fees and expenses of such
counsel will be at the expense of such Indemnified Party unless (i) the
employment of counsel by the Indemnified Party at the Indemnifying
Party's expense has been authorized in writing by the Indemnifying
Party, (ii) the Indemnifying Party has not in fact employed counsel to
assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action or (iii) the named
parties to any such action include the Indemnifying Party on the one
hand and, on the other hand, the Indemnified Party, and representation
of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them (in which case if
such Indemnified Party notifies the Indemnifying Party in writing that
it elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the
defense of such action or proceeding on such Indemnified Party's
behalf), in each of which cases the reasonable fees and expenses of
counsel (including local counsel) will be at the expense of the
Indemnifying Party, and all such fees and expenses will be reimbursed
promptly as they are incurred. In the event that any expenses so paid
by the Indemnifying Party are subsequently determined not to be
required to be borne by the Indemnifying Party hereunder, the party
which received such payment shall promptly refund to the Indemnifying
Party the amount so paid by such Indemnifying Party. Notwithstanding
the foregoing, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, the
Indemnifying Party shall not be liable for the fees and expenses of
more than one counsel for all Seller Parties, more than one counsel for
all Underwriter Parties and more than one counsel for all Insurer
Parties, as applicable.
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(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.
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Section 7. Contribution.
(a) To provide for just and equitable contribution if the
indemnification provided by the Insurer is determined to be unavailable
for any Underwriter Party (other than pursuant to Section 5 or 6 of
this Agreement), or if the indemnification provided by the 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
Underwriter shall contribute to the aggregate costs of liabilities
arising from any breach of their respective representations and
warranties set forth in this Agreement on the basis of the relative
fault of all Insurer Parties and all Underwriter Parties.
(b) To provide for just and equitable contribution if the
indemnification provided by the Insurer is determined to be unavailable
for any Seller Party (other than pursuant to Section 5 or 6 of this
Agreement), or if the indemnification provided by the Seller is
determined to be unavailable for any Insurer Party (other than pursuant
to Section 5 or 6 of this Agreement), the Insurer and the Seller 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 Seller Parties.
(c) Notwithstanding anything in this Section 7 to the
contrary, (i) the Insurer shall not be required to contribute an amount
in excess of the amount by which the total of the insurance premiums
that have been received by the Insurer under the Insurance Agreement
exceeds the amount of any damages that the Insurer has otherwise been
required to pay in respect of any breach by the Insurer of the
representations and warranties contained in Section 2 hereof, and (ii)
the Underwriter shall not be required to contribute an amount in excess
of the amount by which the total underwriting fees, discounts and
commissions received by the Underwriter under the Underwriting
Agreement exceeds the amount of any damages that such Underwriter has
otherwise been required to pay in respect of any breach by the
Underwriter of the representations and warranties contained in Section
3 hereof.
(d) The relative fault of each Indemnifying Party, on the one
hand, and of each Indemnified Party, on the other hand, shall be
determined by reference to, among other things, whether the breach of,
or alleged breach of, any of its representations and warranties set
forth in Section 2, 3 or 4 of this Agreement relates to information
supplied by, or action within the control of, the Indemnifying Party or
the Indemnified Party and the Parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
breach.
(e) The parties agree that the Insurer shall be solely
responsible for the Insurer Information and for the Insurer Financial
Statements, that the Underwriter shall be solely responsible for the
Underwriter Information and that the Seller shall be responsible for
all other information in the Registration Statement and in the
Prospectus Supplement.
(f) No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
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(g) The indemnity and contribution agreements contained in
this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any
Underwriter Party, any Seller Party or any Insurer Party, (ii) the
issuance of any Offered Notes or the Policy or (iii) any termination of
this Agreement.
(h) Upon the incurrence of any Losses entitled to contribution
hereunder, the contributor shall reimburse the party entitled to
contribution promptly upon establishment by the party entitled to
contribution to the contributor of the Losses incurred.
Section 8. Notices. All notices and other communications provided for
under this Agreement shall be addressed to the address set forth below as to
each party or at such other address as shall be designated by a party in a
written notice to the other party.
If to the Insurer: MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Insured Portfolio Management--Structured
Finance (IPM-SF)(GreenPoint Home Equity Loan Trust 2001-2)
If to the Seller: GreenPoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx Xxxxxxxxx # 00000
Xxxxxx, XX 00000
Attention: X.X. Xxxxxxx, President
If to the
Underwriter: Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Legal
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, the Seller and the
Underwriter.
Section 10. Insurance Agreement; Underwriting Agreement; Sale and
Servicing Agreement. This Agreement in no way limits or otherwise affects the
indemnification obligations of the Seller 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 Underwriter and Seller as between themselves as set forth in the
Underwriting Agreement, the Underwriting Agreement shall govern.
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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.
[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
By /s/ [Authorized Officer]
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Assistant Secretary
GREENPOINT MORTGAGE FUNDING, INC.
By /s/ Xxxxxx Xxxxxxxxx
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Title Senior Vice President
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GREENWICH CAPITAL MARKETS, INC.
By /s/ Xxxxx Xxxxxxx
-------------------------------------
Title Senior Vice President
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