FINANCIAL GUARANTY INSURANCE COMPANY,
and
XXXXXX BROTHERS, INC.
INDEMNIFICATION AGREEMENT
GREENPOINT HOME EQUITY LOAN TRUST 2001-1
HOME EQUITY LOAN ASSET BACKED NOTES,
SERIES 2001-1
Dated as of March 30, 2001
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference only and shall not
be deemed to be part of this Agreement. All capitalized terms used in this
Agreement and not otherwise defined shall have the meanings set forth in Article
I of this Agreement.)
Page
Section 1. Defined Terms.....................................................1
Section 2. Other Definitional Provisions.....................................2
Section 3. Representations and Warranties of the Underwriter.................2
Section 4. Representations and Warranties of the Insurer.....................2
Section 5. Indemnification...................................................4
Section 6. Amendments, Etc...................................................5
Section 7. Notices...........................................................5
Section 8. Severability......................................................6
Section 9. Governing Law.....................................................6
Section 10. Counterparts.....................................................6
Section 11. Headings.........................................................6
i
INDEMNIFICATION AGREEMENT, dated as of March 30, 2001, by and between
FINANCIAL GUARANTY INSURANCE COMPANY, as Insurer, and XXXXXX BROTHERS, INC., as
the Underwriter.
Section 1. Defined Terms.
Unless the context clearly requires otherwise, all capitalized terms
used but not defined herein shall have the respective meanings assigned to them
in the Annex A to the Indenture or Surety Bond No. 01010284 issued by the
Insurer in favor of the Trustee (the "Policy"). For purposes of this
Indemnification Agreement, the following terms shall have the following
meanings:
"Indenture" means that certain Indenture relating to the Notes,
dated as of April 1, 2001, between GreenPoint Home Equity Loan Trust 2001-1, as
issuer and Bankers Trust Company, as Indenture Trustee, without regard to any
amendment or supplement thereto.
"Insurance Agreement" means the Insurance and Indemnity Agreement
(as the same may be amended, modified or supplemented from time to time), dated
as of April 12, 2001, by and among the Insurer, GreenPoint Home Equity Loan
Trust 2001-1, GreenPoint Mortgage Funding Inc., as seller of the Mortgage Loans
to the Sponsor and as Servicer, the Sponsor, and Bankers Trust Company, as
Indenture Trustee.
"Insurer" means Financial Guaranty Insurance Company, or any
successor thereto, as issuer of the Policy.
"Insurer Information" has the meaning given such term in Section 4.
"Notes" means the GreenPoint Home Equity Loan Trust 2001-1 Home
Equity Loan Asset Backed Notes, Class A-1 and Class A-2, as issued pursuant to
the Indenture.
"Offering Documents" means the Base Prospectus (the "Prospectus"),
dated February 15, 2000, as supplemented by the Prospectus Supplement (the
"Prospectus Supplement"), dated March 30, 2001, in respect of the Notes and any
amendment or supplement thereto, and any other offering document in respect of
the Notes that makes reference to the Policy.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of April 1, 2001, by and among GreenPoint Mortgage
Securities Inc., as Sponsor, GreenPoint Mortgage Funding, Inc., as Servicer,
GreenPoint Home Equity Loan Trust 2001-1, and Bankers Trust Company, as
Indenture Trustee, without regard to any amendment or supplement thereto.
"Securities Act" means the Securities Act of 1933, including, unless
the context otherwise requires, the rules and regulations thereunder, as amended
from time to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
including, unless the context otherwise requires, the rules and regulations
thereunder, as amended from time to time.
"Sponsor" means GreenPoint Mortgage Securities Inc.
"Trust Agreement" means the Trust Agreement between GreenPoint
Mortgage Securities Inc., as Sponsor and Wilmington Trust Company, as Owner
Trustee, dated as of April 1, 2001, without regard to any amendment or
supplement thereto.
"Underwriter" means Xxxxxx Brothers, Inc.
"Underwriter Information" has the meaning given such term in Section
3.
Section 2. Other Definitional Provisions.
The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Indemnification Agreement shall refer to this
Indemnification Agreement as a whole and not to any particular provision of this
Indemnification Agreement, and Section, subsection, Schedule and Exhibit
references are to this Indemnification Agreement unless otherwise specified. The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms. The words "include" and "including"
shall be deemed to be followed by the phrase "without limitation."
Section 3. Representations and Warranties of the Underwriter.
The Underwriter represents and warrants as of the Closing Date as
follows:
(a) Offering Document. The Underwriter will not use, or distribute
to other broker-dealers for use, the Prospectus and the Prospectus
Supplement, and any amendment or supplement thereto, each of which
includes such information relating to the Insurer, unless such information
has been furnished by the Insurer for inclusion therein and has been
approved by the Insurer.
(b) Underwriter Information. As to the Underwriter, all material
provided in writing to the Sponsor for inclusion in the Offering Documents
(as revised from time to time, and as included in such Offering Document
or any other Offering Document), being such information located in the
Prospectus Supplement relating to the Notes, being the next to last
sentence of the next to last paragraph on page S-1, the first two
sentences of the paragraph immediately preceding the Table of Contents on
page S-2, and the third paragraph under the heading "Method of
Distribution" (the "Underwriter Information"), insofar as such information
relates to such Underwriter shall be true and correct in all material
respects.
(c) Compliance with Laws. The Underwriter will comply in all
material respects with all legal requirements in connection with its
offers and sales of the Notes and will make such offers and sales in the
manner provided in the Offering Document.
Section 4. Representations and Warranties of the Insurer.
The Insurer represents and warrants to the Underwriter as follows:
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(a) Organization and Licensing. The Insurer is a duly organized and
validly existing New York stock insurance company duly qualified to
conduct an insurance 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 Indemnification
Agreement and the Insurance Agreement and to perform all of its
obligations hereunder and thereunder.
(c) Authorization; Approvals. Proceedings legally required for the
issuance of the Policy and the execution, delivery and performance of this
Indemnification Agreement and the Insurance Agreement have been taken and
licenses, orders, consents or other authorizations or approvals of any
governmental boards or bodies legally required for the enforceability of
the Policy have been obtained; any proceedings not taken and any licenses,
authorizations or approvals not obtained are not material to the
enforceability of the Policy.
(d) Enforceability. The Policy, when issued, and this
Indemnification Agreement and the Insurance Agreement will each constitute
a legal, valid and binding obligation of the Insurer, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium, receivership and other similar laws affecting
creditors' rights generally and by general principles of equity and
subject to principles of public policy limiting the right to enforce the
indemnification provisions contained therein and herein, insofar as such
provisions relate to indemnification for liabilities arising under federal
securities laws.
(e) Financial Information. The balance sheet of the Insurer as of
December 31, 2000, and the related statements of income, stockholder's
equity and cash flows for the three fiscal years ended December 31, 2000,
and the accompanying footnotes, together with an opinion thereon dated
January 22, 2001 of KPMG LLP, independent certified public accountants,
which are referred to in and attached to the Offering Document relating to
the Notes, 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 accounting principles generally accepted in
the United States of America consistently applied. Since December 31,
2000, there has been no change in such financial condition of the Insurer
that 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 caption "The Insurer and the
Policy" and the financial statements of the Insurer attached as Annex I in
the Prospectus Supplement as of December 31, 1998, December 31, 1999, and
December 31, 2000, and for the respective twelve-month periods then ended
(the "Insurer Information") are true and correct in all material respects
and do not contain any untrue statement of a material fact.
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Section 5. Indemnification.
(a) The Underwriter agrees to pay, and to protect, indemnify and
save harmless, the Insurer and its officers, directors, shareholders,
employees, agents and each Person, if any, who controls the Insurer within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act from and against, any and all claims, losses,
liabilities (including penalties), actions, suits, judgments, demands,
damages, costs or expenses (including reasonable fees and expenses of
attorneys, consultants and auditors and reasonable costs of
investigations) of any nature arising out of or by reason of any untrue
statement of a material fact contained in the Underwriter Information with
respect to the Underwriter or a breach of any of the representations and
warranties of the Underwriter contained in Section 3.
(b) The Insurer agrees to pay, and to protect, indemnify and save
harmless, the Underwriter and its officers, directors, shareholders,
employees, agents and each Person, if any, who controls the Underwriter
within the meaning of either Section 15 of the Securities Act or Section
20 of the Securities Exchange Act from and against, any and all claims,
losses, liabilities (including penalties), actions, suits, judgments,
demands, damages, costs or expenses (including reasonable fees and
expenses of attorneys, consultants and auditors and reasonable costs of
investigations) of any nature arising out of or by reason of any untrue
statement of a material fact contained in the Insurer Information or a
breach of any of the representations and warranties of the Insurer
contained in Section 4, subject to the limitations set forth in Section
4(f).
(c) If any action or proceeding (including any governmental
investigation) shall be brought or asserted against any Person
(individually, an "Indemnified Party" and, collectively, the "Indemnified
Parties") in respect of which the indemnity provided in this Section 5(a)
or (b) may be sought from the Underwriter, on the one hand, or the
Insurer, on the other (each, an "Indemnifying Party") hereunder, each such
Indemnified Party shall promptly notify the Indemnifying Party in writing,
and the Indemnifying Party shall assume the defense thereof, including the
employment of counsel satisfactory to the Indemnified Party and the
payment of all expenses. The Indemnified Party shall have the right to
employ separate counsel in any such action and to participate in the
defense thereof at the expense of the Indemnified Party; provided,
however, that the fees and expenses of such separate counsel shall be at
the expense of the Indemnifying Party if (i) the Indemnifying Party has
agreed to pay such fees and expenses, (ii) the Indemnifying Party shall
have failed to assume the defense of such action or proceeding and employ
counsel reasonably satisfactory to the Indemnified Party in any such
action or proceeding or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both the Indemnified
Party and the Indemnifying Party, and the 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 Indemnifying Party (in which case, if the 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 behalf of such Indemnified Party, it being
understood,
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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
the Indemnified Parties, which firm shall be designated in writing by the
Indemnified Party). The Indemnifying Party shall not be liable for any
settlement of any such action or proceeding effected without its written
consent to the extent that any such settlement shall be prejudicial to the
Indemnifying Party, but, if settled with its written consent, or if there
is a final judgment for the plaintiff in any such action or proceeding
with respect to which the Indemnifying Party shall have received notice in
accordance with this subsection (c), the Indemnifying Party agrees to
indemnify and hold the Indemnified Parties harmless from and against any
loss or liability by reason of such settlement or judgment.
(d) To provide for just and equitable contribution if the
indemnification provided by the Indemnifying Party is determined to be
unavailable or insufficient to hold harmless any Indemnified Party (other
than due to application of this Section), each Indemnifying Party shall
contribute to the losses incurred by the Indemnified Party on the basis of
the relative fault of the Indemnifying Party, on the one hand, and the
Indemnified Party, on the other hand.
Section 6. Amendments, Etc.
This Indemnification Agreement may be amended, modified,
supplemented or terminated only by written instrument or written instruments
signed by the parties hereto.
Section 7. Notices.
All demands, notices and other communications to be given hereunder
shall be in writing (except as otherwise specifically provided herein) and shall
be mailed by registered mail or personally delivered and telecopied to the
recipient as follows:
(a) To the Insurer:
Financial Guaranty Insurance Company
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Research and Risk Management
GreenPoint Home Equity
Loan Trust 2001-1
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
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(b) To the Underwriter:
Xxxxxx Brothers, Inc.
Three World Financial Center
New York, New York 10285
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
A party may specify an additional or different address or addresses by
writing mailed or delivered to the other parties as aforesaid. All such notices
and other communications shall be effective upon receipt.
Section 8. Severability.
In the event that any provision of this Indemnification Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
the parties hereto agree that such holding shall not invalidate or render
unenforceable any other provision hereof. The parties hereto further agree that
the holding by any court of competent jurisdiction that any remedy pursued by
any party hereto is unavailable or unenforceable shall not affect in any way the
ability of such party to pursue any other remedy available to it.
Section 9. Governing Law.
This Indemnification Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without giving effect to the
conflict of laws provisions thereof).
Section 10. Counterparts.
This Indemnification Agreement may be executed in counterparts by
the parties hereto, and all such counterparts shall constitute one and the same
instrument.
Section 11. Headings.
The headings of Sections and the Table of Contents contained in this
Indemnification Agreement are provided for convenience only. They form no part
of this Indemnification Agreement and shall not affect its construction or
interpretation.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
all as of the day and year first above mentioned.
FINANCIAL GUARANTY INSURANCE COMPANY,
as Insurer
By: /s/ Xxxxx Xxx
------------------------------
Name: Xxxxx Xxx
------------------------
Title: Team Leader
-----------------------
XXXXXX BROTHERS, INC.,
as Underwriter
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
------------------------
Title: Senior Vice President
-----------------------
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