EXHIBIT 10.1
AMBAC ASSURANCE CORPORATION
and
XXXXXX BROTHERS INC.
INDEMNIFICATION AGREEMENT
GREENPOINT HOME EQUITY LOAN TRUST 2003-1
Dated as of May 9, 2003
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference only and shall not
be deemed to be part of this Indemnification Agreement. All capitalized terms
used in this Indemnification Agreement and not otherwise defined shall have the
meanings set forth in Article I of this Indemnification Agreement.)
Page
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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..................................................3
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
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INDEMNIFICATION AGREEMENT dated as of May 9, 2003 (the "Indemnification
Agreement"), by and between AMBAC ASSURANCE CORPORATION, as Insurer, and XXXXXX
BROTHERS INC. (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 Annex A to the Indenture, the Insurance Agreement
or the Policy. For purposes of this Indemnification Agreement, the following
terms shall have the following meanings:
"INSURANCE AGREEMENT" means the Insurance and Indemnity Agreement (as may
be amended, modified or supplemented from time to time) dated as of May 19, 2003
by and among GreenPoint Mortgage Securities Inc., as Sponsor, GreenPoint
Mortgage Funding, Inc., as Servicer, the Insurer, the Issuer, and the Trustee.
"INSURER" means Ambac Assurance Corporation, or any successor thereto, as
issuer of the Policy.
"INSURER INFORMATION" has the meaning given such term in Section 4.
"ISSUER" means GreenPoint Home Equity Loan Trust 2003-1.
"MATERIAL ADVERSE CHANGE" means, in respect of any Person, a material
adverse change in (i) the business, financial condition, results of operations
or properties of such Person on a consolidated basis with its subsidiaries or
(ii) the ability of such Person to perform its obligations under any of the
Company Documents.
"Notes" means the GreenPoint Home Equity Loan Trust Class A Variable Rate
Asset-Backed Notes, substantially in the form set forth in Exhibit A to the
Indenture.
"OFFERING DOCUMENT" means the Prospectus Supplement, dated May 9, 2003, in
respect of the Notes, and any amendment or supplement thereto, and any other
offering document in respect of the Notes prepared by the Sponsor that makes
reference to the Policy.
"INDENTURE" means the Indenture, dated as of May 1, 2003 by and between
the Issuer and the Indenture Trustee, relating to the GreenPoint Home Equity
Loan Trust 2003-1, Class A Variable Rate Asset-Backed Notes, Series 2003-1, as
may be amended, modified or supplemented from time to time as set forth therein.
"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.
"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) COMPLIANCE WITH LAWS. The Underwriter will comply in all
material respects with all legal requirements in connection with offers
and sales of the Notes and will make such offers and sales in the manner
to be provided in the Offering Document.
(b) OFFERING DOCUMENT. The Underwriter will not use, or distribute
to other broker-dealers for use, any Offering Document in connection with
the offer and sale of the Notes unless such Offering Document includes
such information relating to the Insurer as has been furnished by the
Insurer for inclusion therein and has been approved by the Insurer.
(c) UNDERWRITER INFORMATION. All material provided by the
Underwriter for inclusion in the Offering Document (as revised from time
to time), is true and correct in all material respects, it being
understood and agreed that the only such information furnished by the
Underwriter consists of the following information (collectively, the
"Underwriter Information"): the information contained under the heading
"Method of Distribution" relating to the Underwriter in the Offering
Document.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE INSURER. The Insurer
represents and warrants to the Underwriter as follows:
(a) ORGANIZATION AND LICENSING. The Insurer is a duly organized and
licensed and validly existing Wisconsin 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 this Indemnification 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 have been taken and all material 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 or are not material to the enforceability of the
Policy.
(d) ENFORCEABILITY. The Policy, when issued, and this
Indemnification Agreement will each constitute a legal, valid and binding
obligation of the Insurer,
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enforceable in accordance with its terms, subject to 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 consolidated financial statements of
the Insurer and its subsidiaries as of December 31, 2002 and December 31,
2001 and for each of the years in the three year period ended December 31,
2002, prepared in accordance with accounting principles generally accepted
in the United States of America, included in the Annual Report on Form
10-K of Ambac Financial Group, Inc. (which was filed with the Securities
and Exchange Commission (the "Commission") on March 28, 2003; Commission
File No. 1-10777) and the Current Reports on Form 8-K filed with the
Commission on January 24, 2003, February 28, 2003 and March 4, 2003, March
20, 2003, March 26, 2003, March 31, 2003 and April 21, 2003, as they
relate to the Insurer, which are incorporated by reference in the Offering
Document, 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. Since December 31, 2002, there has been no Material
Adverse Change with respect to financial condition of the Insurer that
would affect its ability to perform its obligations under the Policy.
(f) INSURER INFORMATION. The information in the Offering Document as
of the date hereof under the caption "THE INSURER AND THE POLICY" (the
"Insurer Information") is true and correct in all material respects and
does not contain any untrue statement of a material fact.
(g) RATING. The Insurer is not aware of any facts that if disclosed
to Xxxxx'x or S&P would be reasonably expected to result in a downgrade of
the rating of the financial strength rating of the Insurer by either of
such Rating Agencies.
(h) 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 result in a Material Adverse Change or would
materially and adversely affect its ability to perform its obligations
under the Policy, this Indemnification Agreement or the Insurance and
Indemnity Agreement.
(i) SECURITIES ACT REGISTRATION. The Policy is exempt from
registration under the Securities Act.
Section 5. INDEMNIFICATION.
(a) The Underwriter hereby agrees to pay, and to protect, indemnify
and hold 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
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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 or an omission to state a material fact
necessary in order to make the statements therein in light of the
circumstances in which they were made not misleading, contained in the
Underwriter Information 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 hold
harmless, the Underwriter and its respective officers, directors,
shareholders, employees, agents and each Person, if any, who controls such
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 or an omission to state a material fact
necessary in order to make the statements therein in light of the
circumstances in which they were made not misleading, contained in the
Insurer Information or a breach of any of the representations and
warranties of the Insurer contained in Section 4.
(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, 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
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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 Parry). 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 PROVIDED, that the Underwriter shall
not be liable for any amount in excess of (i) the excess of the sales
prices of the Notes to the public over the prices paid therefor by the
Underwriter over (ii) the aggregate amount of any damages which the
Underwriter has otherwise been required to pay in respect of the same or
any substantially similar claim.
The relative fault of each Indemnifying Party, on the one
hand, and 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 was 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.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
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:
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Structured Finance Department--MBS
Telecopy No.: 000-000-0000
Confirmation: 212-668-0340
(b) To the Underwriter:
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (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.
Section 10. COUNTERPARTS. The 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement, all as of the day and year first above mentioned.
AMBAC ASSURANCE CORPORATION,
as Insurer
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: First Vice President
XXXXXX BROTHERS INC.,
as Underwriter
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Senior Vice President
