EXHIBIT 10.76
================================================================================
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
Owner
THE NEW YORK MORTGAGE CORPORATION L.L.C.,
Seller
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Custodian
------------------------
CUSTODIAL AGREEMENT
As of August 1, 2003
------------------------
Adjustable Rate Mortgage Loans
================================================================================
TABLE OF CONTENTS
Page
----
Section 1. Definitions........................................................ -1-
Section 2. Delivery of Custodial Files........................................ -5-
Section 3. Trust Receipt and Initial Certification of the Custodian........... -7-
Section 4. Obligations of the Custodian....................................... -8-
Section 5. Final Certification................................................ -8-
Section 6. Future Defects..................................................... -8-
Section 7. Release for Servicing.............................................. -9-
Section 8. Limitation on Release.............................................. -9-
Section 9. Release for Payment................................................ -9-
Section 10. Fees of Custodian.................................................. -9-
Section 11. Removal of Custodian............................................... -9-
Section 12. Transfer of Custodial Files........................................ -10-
Section 13. Examination of Custodial Files..................................... -10-
Section 14. Insurance of Custodian............................................. -10-
Section 15. Counterparts....................................................... -11-
Section 16. Periodic Statements................................................ -11-
Section 17. GOVERNING LAW...................................................... -11-
Section 18. Copies of Mortgage Documents....................................... -11-
Section 19. No Adverse Interest of Custodian................................... -11-
-ii-
Section 20. Termination by Custodian........................................... -11-
Section 21. Term of Agreement.................................................. -12-
Section 22. Notices............................................................ -12-
Section 23. Successors and Assigns............................................. -12-
Section 24. Custodial Delivery Failure......................................... -12-
Section 25. Indemnification of Custodian....................................... -13-
Section 26. Reliance of Custodian.............................................. -13-
Section 27. Transmission of Custodial Files.................................... -14-
Section 28. Authorized Representatives......................................... -14-
Section 29. Reproduction of Documents.......................................... -15-
EXHIBITS
EXHIBIT 1 FORM OF TRUST RECEIPT AND INITIAL CERTIFICATION
EXHIBIT 2 FORM OF FINAL CERTIFICATION
EXHIBIT 2A FORM OF TRUST RECEIPT AND FINAL CERTIFICATION
EXHIBIT 3 FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
EXHIBIT 4 AUTHORIZED REPRESENTATIVES OF COMPANY
EXHIBIT 5 AUTHORIZED REPRESENTATIVES OF OWNER
EXHIBIT 6 FORM OF NOTICE OF SALE
EXHIBIT 7 FORM OF LOST NOTE AFFIDAVIT
-iii-
THIS CUSTODIAL AGREEMENT, dated as of August 1, 2003, by and
among GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation having
an address at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (the "Owner"),
THE NEW YORK MORTGAGE CORPORATION L.L.C., a New York limited liability company
having an address at 1301 Avenue of the Americas, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Seller"), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York
banking corporation having an address c/o Deutsche Bank National Trust Company
at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000 (the "Custodian"),
Attention: Mortgage Custody _______.
W I T N E S S E T H:
WHEREAS, the Owner has agreed to purchase from time to time
certain conventional, residential, first lien mortgage loans (collectively, the
"Mortgage Loans"), as whole loans, pursuant to the terms and conditions of that
certain Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as
of August 1, 2003, between the Owner and the Seller (the "Servicing Agreement").
The Mortgage Loans will be interim serviced for the Owner by the Seller, as
interim servicer, pursuant to the terms and conditions of the Servicing
Agreement. The Seller shall deliver to the Custodian the documents specified in
Section 2 of this Agreement with respect to the Mortgage Loans held pursuant to
this Agreement; and
WHEREAS, the Custodian is a New York banking corporation, and
is otherwise authorized to act as Custodian pursuant to this Agreement. The
Owner desires to have the Custodian take possession of the Mortgages and
Mortgage Notes, along with certain other documents specified herein, as the
custodian of the Owner and any future purchaser, in accordance with the terms
and conditions hereof.
NOW THEREFORE, in consideration of the mutual undertakings
herein expressed, the parties hereto hereby agree as follows:
Section 1. Definitions.
Capitalized terms used herein but not defined shall have the
meanings assigned to such terms in the Servicing Agreement.
Agreement: This Custodial Agreement and all amendments and
attachments hereto and supplements hereof.
Assignment of Mortgage: An individual assignment of the
Mortgage, notice of transfer or equivalent instrument in recordable form,
reflecting the sale of the Mortgage Loan to the Owner.
Business Day: Any day other than a Saturday, Sunday or a day
on which banking and savings and loan institutions in the State of New York or
the State of California are authorized or obligated by law or executive order to
be closed.
Closing Date: Each date on which Owner purchases Mortgage
Loans from the Seller.
Custodial File: As to each Mortgage Loan, any mortgage loan
documents which are delivered to the Custodian or which at any time come into
the possession of the Custodian.
Custodian: Deutsche Bank Trust Company Americas, or its
successor in interest or assigns, or any successor to the Custodian under this
Agreement as herein provided.
Cut-off Date: The first calendar day of the month in which a
Closing Date occurs.
Due Date: The day of each calendar month on which the Monthly
Payment is due on a Mortgage Loan, exclusive of any days of grace.
FHLMC: Xxxxxxx Mac, formerly known as Federal Home Loan
Mortgage Corporation or any successor thereto.
Final Certification: A final certification as to each Mortgage
Loan, which Final Certification is delivered to the Owner by the Custodian in
the form annexed hereto as Exhibit 2.
FNMA: Xxxxxx Mae, formerly known as Federal National Mortgage
Association or any successor thereto.
Gross Margin: The fixed percentage amount set forth in the
related Mortgage Note which amount is added to the Index in accordance with the
terms of the related Mortgage Note to determine on each Interest Adjustment
Date, the Mortgage Interest Rate for such Mortgage Loan.
Index: The index identified on the Mortgage Loan Schedule and
set forth in the related Mortgage Note for the purpose of calculating the
interest rate thereon.
Interest Adjustment Date: The date on which an adjustment to
the Mortgage Interest Rate on a Mortgage Note becomes effective.
Lifetime Mortgage Interest Rate Cap: The maximum Mortgage
Interest Rate payable, above which the Mortgage Interest Rate can not be
adjusted. The Mortgage Interest Rate shall not at any time exceed the Mortgage
Interest Rate at the time of origination of such Mortgage Loan by more than 6%
per annum.
Maximum Mortgage Interest Rate: A rate that is set forth on
the related Mortgage Loan Schedule and in the related Mortgage Note and is the
maximum interest rate to which the Mortgage Interest Rate on such Mortgage Loan
may be increased.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on
the MERS System.
-2-
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for any MERS Mortgage
Loan.
MOM Loan: Any Mortgage Loan as to which MERS is acting as
mortgagee, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns.
Monthly Payment: The scheduled monthly payment of principal
and interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument
securing a Mortgage Note, which creates a first lien on an unsubordinated estate
in fee simple in real property securing the Mortgage Note.
Mortgage Interest Rate: The annual rate at which interest
accrues on any Mortgage Loan as adjusted from time to time in accordance with
the provisions of the related Mortgage Note and in compliance with the related
Lifetime Mortgage Interest Rate Cap and Periodic Rate Cap features, if any, of
the related Mortgage Note.
Mortgage Loan: Each mortgage loan sold, assigned or
transferred pursuant to this Agreement and identified on the related Mortgage
Loan Schedule.
Mortgage Loan Schedule: The schedule of Mortgage Loans in
computer readable format acceptable to the Custodian to be delivered by the
Owner to the Custodian prior to the related Closing Date, such schedule setting
forth the following information with respect to each Mortgage Loan:(1) the
Seller's Mortgage Loan identifying number; (2) the Mortgagor's first and last
name; (3) the street address of the Mortgaged Property including the state and
zip code; (4) a code indicating whether the Mortgaged Property is owner
occupied; (5) the type of Residential Dwelling constituting the Mortgaged
Property; (6) the original months to maturity; (7) the original date of the
Mortgage Loan and the remaining months to maturity from the Cut off Date, based
on the original amortization schedule; (8) the Loan-to-Value Ratio at
origination; (9) the Mortgage Interest Rate in effect immediately following the
Cut off Date; (10) the date on which the first Monthly Payment was due on the
Mortgage Loan; (11) the stated maturity date; (12) the amount of the Monthly
Payment at origination; (13) the amount of the Monthly Payment as of the Cut off
Date; (14) the last Due Date on which a Monthly Payment was actually applied to
the unpaid Stated Principal Balance; (15) the original principal amount of the
Mortgage Loan; (16) the Stated Principal Balance of the Mortgage Loan as of the
close of business on the Cut off Date; (17) the first Interest Adjustment Date;
(18) the Gross Margin; (19) a code indicating the purpose of the loan (i.e.,
purchase financing, Rate/Term Refinancing, Cash-Out Refinancing); (20) the
Maximum Mortgage Interest Rate under the terms of the Mortgage Note; (21) the
Minimum Mortgage Interest Rate under the terms of the Mortgage Note; (22) the
Mortgage Interest Rate at origination; (23) the Periodic Rate Cap; (24) the
first Interest Adjustment Date immediately following the Cut-off Date; (25) the
Index; (26) the date on which the first Monthly Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
such Due Date; (27) a code indicating if the Mortgage Loan is subject to a
Primary Insurance Policy (28) a code indicating the documentation style (i.e.,
full, alternative or
-3-
reduced); (29) the Appraised Value of the Mortgaged Property; (30) the sale
price of the Mortgaged Property, if applicable; (31) a code indicating whether
the Mortgage Loan is subject to a Prepayment Charge or penalty;(32) the amount
and the term of any Prepayment Charge or penalty; (33) a code indicating if the
Mortgage Loan is an interest-only Mortgage Loan and, if so, the term of the
interest-only period of such Mortgage Loan (34) a code indicating whether the
Mortgage Loan is a MERS Mortgage Loan; and (35) with respect to each MERS
Mortgage Loan, the MIN. With respect to the Mortgage Loan Package in the
aggregate, the Mortgage Loan Schedule shall set forth the following information,
as of the related Cut off Date: (1) the number of Mortgage Loans; (2) the
current principal balance of the Mortgage Loans; (3) the weighted average
Mortgage Interest Rate of the Mortgage Loans; and (4) the weighted average
maturity of the Mortgage Loans. Such schedule shall be delivered on
computer-readable magnetic disk and hard copy form.
Mortgage Note: The note or other evidence of the indebtedness
of a Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note, the owner of the
Mortgaged Property and the grantor or borrower named in the related Mortgage and
such grantor's or borrower's successor's in title to the Mortgaged Property.
Officer's Certificate: A certificate signed by the Chairman of
the Board or the Vice Chairman of the Board or the President or a Vice President
and by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Person delivering such certificate.
Opinion of Counsel: A written opinion of counsel, who may be
salaried counsel for the Person on behalf of whom the opinion is being given,
reasonably acceptable to each Person to whom such opinion is addressed.
Owner: Greenwich Capital Financial Products, Inc., or its
successor in interest or assigns.
Periodic Rate Cap: With respect to any Interest Adjustment
Date, a number of percentage points per annum that is set forth in the related
Mortgage Loan Schedule and in the related Mortgage Note, which is the maximum
amount by which the Mortgage Interest Rate for such Mortgage Loan may increase
(without regard to the Maximum Mortgage Interest Rate) or decrease (without
regard to the Minimum Mortgage Interest Rate) on such Interest Adjustment Date
from the Mortgage Interest Rate in effect immediately prior to such Interest
Adjustment Date.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization, government or any agency or political subdivision
thereof.
Primary Insurance Policy: A policy of primary mortgage
guaranty insurance issued by a Qualified Insurer.
-4-
Primary Insurance Policy: A policy of primary mortgage
guaranty insurance.
Qualified Insurer: Any insurer which meets the requirements of
FNMA and FHLMC.
Servicer: Shall have the meaning set forth in Section 7
hereof.
Trust Receipt and Initial Certification: A trust receipt and
initial certification as to each Mortgage Loan, which Trust Receipt and Initial
Certification is delivered to the Owner by the Custodian in the form annexed
hereto as Exhibit 1.
Trust Receipt and Final Certification: A trust receipt and
final certification as to each Mortgage Loan, which Trust Receipt and Final
Certification is delivered to the Owner by the Custodian in the form annexed
hereto as Exhibit 2A.
Section 2. Delivery of Custodial Files.
The Seller will release and deliver to the Custodian at least
five (5) Business Days prior to each Closing Date, with respect to the first
2000 Mortgage Loans, and at least one additional Business Day in advance of such
5 Business Day period with respect to each additional 500 Mortgage Loans, the
following documents pertaining to each of the Mortgage Loans identified in the
Mortgage Loan Schedule:
(a) the original Mortgage Note bearing all intervening
endorsements necessary to show a complete chain of
endorsements from the original payee to the
applicable Seller, endorsed in blank, "Pay to the
order of___________, without recourse", and, if
previously endorsed, signed in the name of the last
endorsee by a duly qualified officer of the last
endorsee. If the Mortgage Loan was acquired by the
last endorsee in a merger, the endorsement must be by
"[name of last endorsee], successor by merger to
[name of predecessor]". If the Mortgage Loan was
acquired or originated by the last endorsee while
doing business under another name, the endorsement
must be by "[name of last endorsee], formerly known
as [previous name]";
(b) with respect to each Mortgage Loan which is not a
MERS Mortgage Loan, the original Assignment of
Mortgage for each Mortgage Loan, in form and
substance acceptable for recording. The Mortgage
shall be assigned, with assignee's name left blank.
If the Mortgage Loan was acquired by the last
assignee in a merger, the Assignment of Mortgage must
be made by "[name of last assignee], successor by
merger to [name of predecessor]". If the Mortgage
Loan was acquired or originated by the last assignee
while doing business under another name, the
Assignment of Mortgage must be by "[name of last
assignee], formerly known as [previous name];
(c) the original of each guarantee executed in connection
with the Mortgage Note, if any;
-5-
(d) for each Mortgage Loan which is not a MERS Mortgage
Loan, the original recorded Mortgage, with evidence
of recording thereon, and in the case of each MERS
Mortgage Loan, the original Mortgage, noting the
presence of the MIN for that Mortgage Loan and either
language indicating that the Mortgage Loan is a MOM
Loan if the Mortgage Loan is a MOM Loan, or if such
Mortgage Loan was not a MOM Loan at origination, the
original Mortgage and the assignment to MERS, with
evidence of recording thereon. If in connection with
any Mortgage Loan, the applicable Seller has not
delivered or caused to be delivered the original
Mortgage with evidence of recording thereon on or
prior to the related Closing Date because of a delay
caused by the public recording office where such
Mortgage has been delivered for recordation or
because such Mortgage has been lost or because such
public recording office retains the original recorded
Mortgage, the applicable Seller shall deliver or
cause to be delivered to the Custodian, (i) in the
case of a delay caused by the public recording
office, a copy of such Mortgage certified by the
applicable Seller, escrow agent, title insurer or
closing attorney to be a true and complete copy of
the original recorded Mortgage and (ii) in the case
where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is
lost after recordation in a public recording office,
a copy of such Mortgage certified by such public
recording office to be a true and complete copy of
the original recorded Mortgage;
(e) originals of each assumption, modification,
consolidation or extension agreement, if any;
(f) except in the event that the original Mortgage is
made to MERS, the originals of all intervening
assignments of mortgage with evidence of recording
thereon evidencing a complete chain of ownership from
the originator of the Mortgage Loan to the last
assignee (or to MERS, if the Mortgage Loan is
registered on the MERS System), or if any such
intervening assignment of mortgage has not been
returned from the applicable public recording office
or has been lost or if such public recording office
retains the original recorded intervening assignments
of mortgage, a photocopy of such intervening
assignment of mortgage, together with (i) in the case
of a delay caused by the public recording office, an
Officer's Certificate of the applicable Seller,
escrow agent, closing attorney or the title insurer
insuring the Mortgage stating that such intervening
assignment of mortgage has been delivered to the
appropriate public recording office for recordation
and that such original recorded intervening
assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the appropriate
public recording office to be a true and complete
copy of the original recorded intervening assignment
of mortgage will be promptly delivered to the
Custodian upon receipt thereof by the party
delivering the Officer's Certificate or by the
applicable Seller; or (ii) in the case of an
intervening assignment of mortgage where a public
recording office retains the original recorded
intervening assignment of mortgage or in the case
where an intervening assignment of
-6-
mortgage is lost after recordation in a public
recording office, a copy of such intervening
assignment of mortgage with recording information
thereon certified by such public recording office to
be a true and complete copy of the original recorded
intervening assignment of mortgage;
(g) if the Mortgage Note, the Mortgage, any Assignment of
Mortgage or any other related document has been
signed by a Person on behalf of the Mortgagor, the
original power of attorney or other instrument that
authorized and empowered such Person to sign;
(h) the original lender's title insurance policy (or a
marked title insurance commitment, in the event that
an original lender's title insurance policy has not
yet been issued) in the form of an ALTA mortgage
title insurance policy, containing each of the
endorsements required by FNMA and insuring the Owner
and its successors and assigns as to the first
priority lien of the Mortgage in the original
principal amount of the Mortgage Loan;
(i) original of any security agreement, chattel mortgage
or equivalent document executed in connection with
the Mortgage, if any; and
(j) the original Primary Insurance Policy, if the
Loan-to-Value Ratio is greater than 80.00%.
In addition, in connection with the assignment of any MERS
Mortgage Loan, the Seller agrees that it will cause, at the Seller's expense,
the MERS System to indicate that such Mortgage Loans have been assigned by the
Seller to the Owner in accordance with the Servicing Agreement (or deleting, in
the case of Mortgage Loans which are repurchased in accordance with the
Servicing Agreement) by including in such computer files the information
required by the MERS System to identify the Owner and the series in which such
Mortgage Loans were sold. The Seller further agrees that it will not alter the
codes referenced in this paragraph with respect to any Mortgage Loan during the
term of the Servicing Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of the Servicing Agreement.
If pursuant to the foregoing provisions the Seller repurchases
a Mortgage Loan that a MERS Mortgage Loan, the Seller shall either (i) cause
MERS to execute and deliver an Assignment of Mortgage in recordable form to
transfer the Mortgage from MERS to the Company and shall cause such Mortgage to
be removed from registration on the MERS System in accordance with MERS' rules
and regulations or (ii) cause MERS to designate on the MERS System the Seller or
its designee as the beneficial holder of such Mortgage Loan.
From time to time, the Seller or the Owner, as the case may
be, shall forward to the Custodian additional original documents, or additional
original documents evidencing an assumption, modification, consolidation or
extension of a Mortgage Loan. All such mortgage documents held by the Custodian
as to each Mortgage Loan shall constitute the "Custodial File".
Section 3. Trust Receipt and Initial Certification of the
Custodian.
-7-
(a) Not later than 3:00 p.m. (New York City time) on each
Closing Date, the Custodian shall deliver to the Owner a Trust Receipt and
Initial Certification certifying that, as to each Mortgage Loan listed in the
related Mortgage Loan Schedule: (i) all documents required to be delivered to it
pursuant to Section 2(a), (b), (d), (f), (g), (h), and (j) of this Agreement,
and if actually delivered to the Custodian, the documents in Section 2(c), (e)
and (i) of this Agreement, are in its possession; (ii) such documents have been
reviewed by it and appear regular on their face and relate to such Mortgage
Loan; (iii) based on its examination of the foregoing documents, the information
set forth in items (1), (2), (3), (10), (11), (12), (18), (20), (22) and (23)(to
the extent that an actual number for such rate is set forth on the Mortgage
Note) of the definition of Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects the information on the Mortgage Loan Schedule; and (iv) each
Mortgage Note has been endorsed as provided in Section 2 of this Agreement and
each Mortgage has been assigned in accordance with Section 2 of this Agreement.
In connection with the endorsement of a Mortgage Note or Assignment of Mortgage,
the Custodian shall not be deemed to have knowledge that a Mortgage Loan was
acquired by the last endorsee in a merger or acquired or originated by the last
endorsee while doing business under another name unless notified of such fact in
writing.
(b) Upon the written directions of the Owner, and upon the
prior tender by the Owner of an applicable Trust Receipt or Trust Receipts
(including any related Final Certification that has been issued), the Custodian
shall deliver all or any portion of the related Custodial Files held by it
pursuant to such Trust Receipt to the Owner, or to such other party designated
by such Owner in such written direction, and to the place indicated in any such
written direction from the Owner. If such delivery is for less than all of the
Custodial Files held by the Custodian with respect to such Trust Receipt (and a
Final Certification has been issued), the Custodian shall deliver to the Owner a
new Trust Receipt in the form attached hereto as Exhibit 2A with respect to the
(related Custodial Files retained by the Custodian. Upon receipt by the
Custodian of written notification which shall be in the form of a notice of sale
("Notice of Sale," attached hereto as Exhibit 6) from the Owner that the Owner
has sold all or a portion of the Mortgage Loans subject to a Trust Receipt,
which Notice of Sale shall state the name and address of the purchaser and the
date of sale and shall be accompanied by the original Trust Receipt or Trust
Receipts (including any related Final Certification that has been issued) for
such Mortgage Loans which had been delivered to the Owner, the Custodian shall
change its records to reflect that the purchaser of such Mortgage Loans from the
Owner (the "Subsequent Owner") is the owner of such Mortgage Loans and the
related Custodial Files and shall, upon the written direction of the Owner,
either deliver the applicable Custodial Files to such Subsequent Owner or, with
the consent of the Custodian, which shall not be unreasonably withheld, issue a
Trust Receipt in the form attached hereto as Exhibit 2A (if a Final
Certification was issued to the Initial Owner) in the name of such Subsequent
Owner. In the event that the Owner instructs the Custodian to issue a Trust
Receipt to the Subsequent Owner, the Owner shall cause the Subsequent Owner to
agree to be bound by the obligations of the Owner under this Agreement. The
Owner shall give the Custodian at least one (1) Business Day's written notice
prior to the sale of any or all of the Mortgage Loans. The information on such
Notice of Sale shall also be delivered to the Custodian in a computer readable
magnetic disk format. The Custodian shall then deliver to the Owner a new Trust
Receipt reflecting all Mortgage Loans evidenced by the surrendered Trust
Receipts with respect to which the Custodian shall continue to hold the related
Custodial Files on behalf of the Owner. Each Trust Receipt (including any Final
Certification) surrendered shall be
-8-
canceled by the Custodian. Any Subsequent Owner of a Mortgage Loan to whom a
Trust Receipt has been delivered shall succeed to all the rights and obligations
of the Owner under this Agreement, including the obligation to pay the
Custodian's fees and expenses, with respect to such Mortgage Loans and the
related Custodial Files.
Section 4. Obligations of the Custodian.
With respect to the Mortgage Note, the Mortgage and the
Assignment of Mortgage and other documents constituting each Custodial File
which is delivered to the Custodian or which come into the possession of the
Custodian, the Custodian is the custodian for the Owner exclusively. The
Custodian shall hold all mortgage documents received by it constituting the
Custodial File for the exclusive use and benefit of the Owner, and shall make
disposition thereof only in accordance with this Agreement and the instructions
furnished by the Owner. The Custodian shall segregate and maintain continuous
custody of all mortgage documents constituting the Custodial File in secure and
fire resistant facilities in accordance with customary standards for such
custody. The Custodian shall not be responsible to verify (i) the validity,
legality, enforceability, sufficiency, due authorization or genuineness of any
document in each Custodial File or of any of the Mortgage Loans, (ii) the
collectability, insurability, effectiveness or suitability of any Mortgage Loan
or (iii) the qualification of any officer endorsing any Mortgage Note as
provided in Section 2(a).
Section 5. Final Certification.
Within thirty (30) days after each Closing Date, the Custodian
shall ascertain that all documents referred to in Section 2(a), (b), (d), (f),
(g), (h) and (j) of this Agreement, and if actually delivered to the Custodian,
the documents in Sections 2(c), (e) and (i) of this Agreement, are in its
possession, and shall deliver to the Owner a Final Certification to the effect
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (i) all
documents required to be delivered to it pursuant to Sections 2 (a), (b), (d),
(f), (g), (h) and (j) of this Agreement, and if actually delivered to the
Custodian, the documents in Sections 2(c), (e) and (i) of this Agreement, are in
its possession; (ii) such documents have been reviewed by it and appear regular
on their face and relate to such Mortgage Loan; (iii) based on its examination
of the foregoing documents, the information set forth in items (1), (2), (3),
(10), (11), (12), (18), (20), (22) and (23)(to the extent that an actual number
for such rate is set forth on the Mortgage Note) of the definition of Mortgage
Loan Schedule respecting such Mortgage Loan accurately reflects the information
on the Mortgage Loan Schedule; and (iv) each Mortgage Note has been endorsed as
provided in Section 2 of this Agreement and each Mortgage has been assigned in
accordance with Section 2 of this Agreement. In connection with the endorsement
of a Mortgage Note or Assignment of Mortgage, the Custodian shall not be deemed
to have knowledge that a Mortgage Loan was acquired by the last endorsee in a
merger or acquired or originated by the last endorsee while doing business under
another name unless notified of such fact in writing.
Section 6. Future Defects.
During the term of this Agreement, if the Custodian discovers
any defect with respect to any Custodial File, the Custodian shall give written
specification of such defect to the Seller and the Owner; provided, however,
that except for its obligations specifically set forth herein, the
-9-
Custodian shall not be obligated to review any Custodial File to determine
whether any such defect exists.
Section 7. Release for Servicing.
From time to time for the foreclosure or servicing of any of
the Mortgage Loans, the Custodian shall, upon written receipt from the Seller or
any successor servicer designated in writing by the Owner (the "Servicer") of a
request for release of documents and receipt in the form annexed hereto as
Exhibit 3, release to the Servicer the related Custodial File or the documents
set forth in such request and receipt to the Servicer. All documents so released
to the Servicer shall be held by the Servicer in trust for the benefit of the
Owner. The Servicer shall return to the Custodian the Custodial File or other
such documents when the Servicer's need therefor in connection with such
foreclosure or servicing no longer exists, unless the Mortgage Loan shall be
liquidated in which case, upon receipt of an additional request for release of
documents and receipt certifying such liquidation from the Servicer to the
Custodian in the form annexed hereto as Exhibit 3, the Servicer's request and
receipt submitted pursuant to the first sentence of this Section 7 shall be
released by the Custodian to the Servicer.
Section 8. Limitation on Release.
The foregoing provision respecting release to the Servicer of
the Custodial Files and documents by the Custodian upon request by the Servicer
shall be operative only to the extent that at any time the Custodian shall not
have released to the Servicer active Custodial Files or documents (including
those requested) pertaining to more than ten (10) Mortgage Loans at the time
being held by the Custodian under this Agreement. Any additional Custodial Files
or documents requested to be released by the Servicer may be released only upon
written authorization of the Owner. The limitations of this paragraph shall not
apply to the release of Custodial Files to the Servicer under Section 9 below.
Section 9. Release for Payment.
Upon receipt by the Custodian of the Servicer's request for
release of documents and the form annexed hereto as Exhibit 3, which
certification includes a statement to the effect that all amounts received in
connection with such payment or repurchase have been credited to the custodial
account as provided in the related servicing agreement, the Custodian shall
promptly release the related Custodial File to the Servicer in accordance with
such request for release.
Section 10. Fees of Custodian.
The Custodian shall charge such fees for its services under
this Agreement as are set forth in a separate agreement between the Custodian
and the Owner, the payment of which fees, together with the Custodian's expenses
in connection herewith, shall be solely the obligation of the Owner. The
obligations of the Owner under this Section 10 shall survive the termination of
this Agreement and the resignation or removal of the Custodian.
Section 11. Removal of Custodian.
-10-
The Owner, with or without cause, may upon at least 60 days'
notice remove and discharge the Custodian from the performance of its duties
under this Agreement by written notice from the Owner to the Custodian, with a
copy to the Seller. Having given notice of such removal, the Owner promptly
shall appoint a successor Custodian to act on behalf of the Owner by written
instrument, one original counterpart of which instrument shall be retained by
the Owner, with a copy to the Seller and an original to the successor Custodian.
In the event of any such removal, the Custodian shall, at Owner's expense
(unless such removal is with cause) upon the Owner's surrender of all Final
Certifications and Trust Receipts and Final Certifications, promptly transfer to
the successor Custodian, as directed in writing by the Owner, all Custodial
Files being administered under this Agreement. If the endorsements on the
Mortgage Notes and the Assignments of Mortgages have been completed in the name
of the Custodian, the Custodian shall, at the Owner's direction and expense,
execute such endorsements on the Mortgage Notes and Assignments of Mortgages as
are necessary to transfer legal title thereto to the successor Custodian, the
Owner or in blank; provided, however, if the Custodian executed such
endorsements on the Mortgage Notes and Assignments of Mortgages without the
prior written consent of the Owner, the Custodian shall execute such
endorsements on the Mortgage Notes and Assignments of Mortgages at its own
expense. In the event of any such appointment the Owner shall be responsible for
the fees and expenses of the existing and successor Custodian.
Section 12. Transfer of Custodial Files.
Upon the Custodian's receipt of written notification from the
Owner, the Custodian shall release to such persons as the Owner shall designate
all or a portion of the Custodial Files relating to the Mortgage Loans subject
to any Trust Receipt. If the Assignments of Mortgages and the endorsements on
the Mortgage Notes have been completed in the name of the Custodian, the
Custodian shall, at the Owner's direction and expense, execute such Assignments
of Mortgages and endorsements of the Mortgage Notes as the Owner shall request;
provided, however, if the Custodian executed such endorsements on the Mortgage
Notes and Assignments of Mortgages without the prior written consent of the
Owner, the Custodian shall execute such endorsements on the Mortgage Notes and
Assignments of Mortgages at its own expense. In the event that no successor
Custodian shall have been appointed within such sixty (60) any notice period,
the terminating Custodian may petition any court of competent jurisdiction to
appoint a successor custodian.
Section 13. Examination of Custodial Files.
Upon reasonable prior notice to the Custodian but not less
than two (2) Business Days notice, the Owner and its agents, accountants,
attorneys and auditors will be permitted during normal business hours to examine
the Custodial Files, documents, records and other papers in the possession of or
under the control of the Custodian relating to any or all of the Mortgage Loans
at the Owner's expense. The Custodial Files shall be maintained at the
Custodian's office at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000 or
at such other office acceptable to the parties.
Section 14. Insurance of Custodian.
At its own expense, the Custodian shall maintain at all times
during the existence of this Agreement and keep in full force and effect such
insurance in amounts, with standard coverage
-11-
and subject to deductibles, all as is customary for insurance typically
maintained by banks which act as Custodian. The minimum coverage under any such
bond and insurance policies shall be at least equal to the corresponding amounts
required by FNMA in the FNMA Servicing Guide or by FHLMC in the FHLMC Sellers' &
Servicers' Guide. Upon request, the Owner shall be entitled to receive evidence
satisfactory to the Owner that such insurance is in full force and effect.
Section 15. Counterparts.
For the purpose of facilitating the execution of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute and be one and the same instrument.
Section 16. Periodic Statements.
Within 10 days of each anniversary of the date of this
Agreement, or upon the request of the Owner at any other time, the Custodian
shall provide to the Owner a list of all the Mortgage Loans for which the
Custodian holds a Custodial File pursuant to this Agreement. Such list may be in
the form of a copy of the Mortgage Loan Schedule with manual deletions to
specifically denote any Mortgage Loans paid off, repurchased or sold since the
date of this Agreement.
SECTION 17. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 18. Copies of Mortgage Documents.
Upon the request of the Owner and at the cost and expense of
the Owner, the Custodian shall provide the Owner with copies of the Mortgage
Notes, Mortgages, Assignments of Mortgage and other documents relating to one or
more of the Mortgage Loans.
Section 19. No Adverse Interest of Custodian.
By execution of this Agreement, the Custodian represents and
warrants that it currently holds, and during the existence of this Agreement
shall hold, no interest adverse to the Owner, by way of security or otherwise,
in any Mortgage Loan, and hereby waives and releases any such interest which it
may have in any Mortgage Loan as of the date hereof.
Section 20. Termination by Custodian.
The Custodian may terminate its obligations under this
Agreement upon at least 60 days' prior notice to the Seller and the Owner. In
the event of such termination, the Owner shall appoint a successor Custodian.
The payment of such successor Custodian's fees and expenses shall
-12-
be solely the responsibility of the Owner. Upon such appointment, the Custodian
shall promptly transfer to the successor Custodian, as directed, all Custodial
Files being administered under this Agreement. If the endorsements on the
Mortgage Notes and the Assignments of Mortgages have been completed in the name
of the Custodian, the Custodian shall, at the Owner's direction and expense,
execute such endorsements on the Mortgage Notes and Assignments of Mortgages as
are necessary to transfer legal title thereto to the successor Custodian, the
Owner or in blank; provided, however, if the Custodian executed such
endorsements on the Mortgage Notes and Assignments of Mortgages without the
prior written consent of the Owner, the Custodian shall execute such
endorsements on the Mortgage Notes and Assignments of Mortgages at its own
expense.
Section 21. Term of Agreement.
Unless terminated pursuant to Section 11 or Section 20 hereof,
this Agreement shall terminate upon the final payment or other liquidation (or
advance with respect thereto) of the last Mortgage Loan or the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan, and the final remittance of all funds due the Owner under the
Servicing Agreement. In such event, Owner shall notify Custodian of such
termination and all documents remaining in the Custodial Files shall be released
in accordance with the written instructions and at the expense of the Owner.
Section 22. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when received by the
recipient party at the address shown on the first page hereof, or at such other
addresses as may hereafter be furnished to the other parties by like notice. Any
such demand, notice or communication hereunder shall be deemed to have been
received on the date delivered to or received at the premises of the addressee.
Section 23. Successors and Assigns.
This Agreement shall inure to the benefit of the successors
and assigns of the parties hereto; provided however, that the form of any
assignment by any party of its interests hereunder shall be in a form reasonably
acceptable to the Owner and the Custodian. Such assignment shall be executed by
an authorized representative of the assignor and any assignee shall forward a
list of authorized representatives to each party to this Agreement pursuant to
Section 28 of this Agreement. Any assignment of the Owner's interest pursuant to
an instrument substantially in the form attached hereto as Exhibit 6 shall be
deemed to be acceptable to the Custodian.
Section 24. Custodial Delivery Failure.
In the event that the Custodian fails to produce a Mortgage
Note, Assignment of Mortgage or any other document related to a Mortgage Loan
that was in its possession pursuant to Section 2 within five (5) Business Days
after written request therefor by the Owner in accordance with the terms and
conditions of this Agreement; provided that (i) Custodian previously delivered
to the Owner a Trust Receipt and an exception report which did not list such
document as an exception; (ii) such document is not outstanding pursuant to a
Request for Release of Documents
-13-
and Receipt; and (iii) such document was held by the Custodian on behalf of the
Owner (a "Custodial Delivery Failure"), then the Custodian shall (a) with
respect to any missing Mortgage Note, promptly deliver to the Owner, upon
request, a Lost Note Affidavit in the form of Exhibit 7 hereto and (b) with
respect to any missing document related to such Mortgage Loan, including but not
limited to a missing Mortgage Note, indemnify the Owner in accordance with the
succeeding paragraph of this Section 24.
The Custodian agrees to indemnify and hold the Owner, and its
respective designees harmless against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, or out-of-pocket
expenses, including reasonable attorney's fees, that may be imposed on, incurred
by, or asserted against it or them in any way relating to or arising out of a
Custodial Delivery Failure or the Custodian's negligence, lack of good faith or
misconduct or any breach of the conditions, representations or warranties
contained herein. The foregoing indemnification shall survive any termination or
assignment of this Agreement.
Section 25. Indemnification of Custodian.
Neither the Custodian nor any of its directors, officers,
agents or employees, shall be liable for any action taken or omitted to be taken
by it or them hereunder or in connection herewith in good faith and believed by
it or them to be within the purview of this Agreement, except for its or their
own negligence, lack of good faith or willful misconduct. In no event shall the
Custodian or its directors, officers, agents and employees be held liable for
any special, indirect or consequential damages resulting from any action taken
or omitted to be taken by it or them hereunder or in connection herewith even if
advised of the possibility of such damages.
The Seller agrees to indemnify and hold the Custodian and its
directors, officers, agents and employees harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever, including
reasonable attorney's fees, that may be imposed on, incurred by, or asserted
against it or them in any way relating to or arising out of this Agreement or
any action taken or not taken by it or them hereunder unless such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements were imposed on, incurred by or asserted against the
Custodian because of the breach by the Custodian of its obligations hereunder,
which breach was caused by negligence, lack of good faith or willful misconduct
on the part of the Custodian or any of its directors, officers, agents or
employees. The indemnification set forth in this section shall survive any
termination of or assignment of this Agreement and the termination or removal of
the Custodian.
Section 26. Reliance of Custodian.
In the absence of bad faith on the part of the Custodian, the
Custodian may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any request, instructions,
certificate, opinion or other document furnished to the Custodian, reasonably
believed by the Custodian to be genuine and to have been signed or presented by
the proper party or parties and conforming to the requirements of this
Agreement; but in the case of any loan document or other request, instruction,
document or certificate which by any provision
-14-
hereof is specifically required to be furnished to the Custodian, the Custodian
shall be under a duty to examine the same to determine whether or not it
conforms to the requirements of this Agreement.
The Custodian undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement. The Custodian shall not
have any duties or responsibilities except those expressly set forth in this
Agreement.
The Custodian shall not be liable for any error of judgment
made in good faith by an officer or officers of the Custodian, unless it shall
be conclusively determined by a court of competent jurisdiction that the
Custodian was grossly negligent in ascertaining the pertinent facts.
The Custodian shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with any
direction of the Owner or the Seller given under this Agreement.
None of the provisions of this Agreement shall require the
Custodian to expend or risk its own funds or otherwise to incur any liability,
financial or otherwise, in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or indemnity satisfactory to it
against such risk or liability is not assured to it.
The Custodian may consult with counsel and the written advice
or any written opinion of counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in accordance with such advice or opinion of counsel.
Section 27. Transmission of Custodial Files.
Written instructions as to the method of shipment and
shipper(s) the Custodian is directed to utilize in connection with transmission
of mortgage files and loan documents in the performance of the Custodian's
duties hereunder shall be delivered by the Seller or the Owner (each a
"Requesting Party") to the Custodian prior to any shipment of any mortgage files
and loan documents hereunder. The Requesting Party will arrange for the
provision of such services at its sole cost and expense (or, at the Custodian's
option, reimburse the Custodian for all costs and expenses incurred by the
Custodian consistent with such instructions) and will maintain such insurance
against loss or damage to mortgage files and loan documents as the Requesting
Party deems appropriate. Without limiting the generality of the provisions of
Section 25 above, it is expressly agreed that in no event shall the Custodian
have any liability for any losses or damages to any person, including without
limitation, any Requesting Party, arising out of actions of the Custodian
consistent with instructions of the Requesting Party. In the event that the
Custodian does not receive such written instructions, the Custodian shall be
permitted to, and shall be indemnified as provided here for, using any
nationally recognized overnight courier service.
Section 28. Authorized Representatives.
Each individual designated as an authorized representative of
the Seller and the Owner, respectively (an "Authorized Representative"), is
authorized to give and receive notices,
-15-
requests and instructions and to deliver certificates and documents in
connection with this Agreement on behalf of the Seller or the Owner, as the case
may be, and the specimen signature for each such Authorized Representative of
the Seller and each such Authorized Representative of the Owner, initially
authorized hereunder, is set forth on Exhibits 4 and 5 hereof, respectively.
From time to time, the Seller and the Owner may, by delivering to each other and
to the Custodian a revised exhibit, change the information previously given
pursuant to this Section 28, but each of the parties hereto shall be entitled to
rely conclusively on the then current exhibit until receipt of a superseding
exhibit.
Section 29. Reproduction of Documents.
This Agreement and all documents relating thereto except with
respect to the Custodial File, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, and (b) certificates
and other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, microcard, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
-16-
IN WITNESS WHEREOF, the Seller, the Owner and the Custodian
have caused their names to be duly signed hereto by their respective officers
thereunto duly authorized, all as of the date first above written.
GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC., as Owner
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
THE NEW YORK MORTGAGE CORPORATION
L.L.C., Seller
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: President
----------------------------------
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Custodian
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
-----------------------------------
Title: Assistant Vice President
----------------------------------
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
-----------------------------------
Title: Assistant Vice President
----------------------------------
