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FINANCIAL GUARANTY INSURANCE COMPANY,
and
GREENWICH CAPITAL MARKETS, INC.
INDEMNIFICATION AGREEMENT
GREENPOINT HOME EQUITY LOAN TRUST 2000-3
HOME EQUITY LOAN ASSET BACKED NOTES,
SERIES 2000-3
Dated as of December 5, 2000
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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.......................3
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
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INDEMNIFICATION AGREEMENT, dated as of December 18, 2000, by and
between FINANCIAL GUARANTY INSURANCE COMPANY, as Insurer, and GREENWICH CAPITAL
MARKETS, 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. 00010935 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 December 1, 2000, between GreenPoint Home Equity Loan Trust
2000-3, 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 December 18, 2000, by and among the Insurer, GreenPoint Home
Equity Loan Trust 2000-3, 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 2000-3
Home Equity Loan Asset Backed Notes, Class A-1, Class A-2 and Class A-3, 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 December 5, 2000, 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 December 1, 2000, by and among GreenPoint Mortgage
Securities Inc., as Sponsor, GreenPoint Mortgage Funding, Inc., as Servicer,
GreenPoint Home Equity Loan Trust 2000-3, 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.
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"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 December 1, 2000, without regard to any amendment or
supplement thereto.
"Underwriter" means Greenwich Capital Markets, 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.
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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 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, 1999 and the related statements of income,
stockholder's equity and cash flows for the three fiscal years ended
December 31, 1999, and the accompanying footnotes, together with an
opinion thereon dated January 21, 2000 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
generally accepted accounting principles consistently applied. The
balance sheet of the Insurer as of September 30, 2000 and the related
statements of operations, stockholder's equity and cash flows for the
six-month period ended September 30, 2000 and the accompanying
footnotes, which is 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 date and for such
nine-month period in accordance with generally accepted accounting
principles consistently applied. Since September 30, 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.
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(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
and Annex II in the Prospectus Supplement as of December 31, 1998 and
December 31, 1999, and for the respective twelve-month periods then
ended, and as of September 30, 2000, and for the nine-month period then
ended (the "Insurer Information") are true and correct in all material
respects and do not contain any untrue statement of a material fact.
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
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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 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
115 Broadway
New York, New York 10006
Attention: Research and Risk Management
GreenPoint Home Equity
Loan Trust 2000-3
Facsimile: (212) 312-3225
Confirmation: (800) 352-0001
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(b) To the Underwriter:
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Attention: Legal Department
Facsimile: (203) 618-2164
Confirmation: (203) 625-2700
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 BLAND]
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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/ Jayce Fox
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Name: Jayce Fox
Title: Team Leader
GREENWICH CAPITAL MARKETS, INC.,
as Underwriter
By: /s/ Frank Skibo
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Name: Frank Skibo
Title: Vice President
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