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EXHIBIT 10.19
WHOLE LOANS
WHOLE LOAN PURCHASE AND SALE AGREEMENT
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
between
---------------------------
Seller,
and
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
Purchaser
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 0000
DATED:__________________________________
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TABLE OF CONTENTS
PAGE
Section 1. Definitions......................................................................1
Section 2. Procedures for Purchases of Mortgage Loans.......................................6
Section 3. Sale of Mortgage Loans to Takeout Investor.......................................7
Section 4. Completion Fee...................................................................9
Section 5. Servicing of the Mortgage Loans.................................................10
Section 6. Trade Assignments...............................................................11
Section 7. Transfers of Beneficial Interest in Mortgage Loans by Purchaser.................11
Section 8. Record Title to Mortgage Loans; Intent of Parties; Security Interest............11
Section 9. Representations and Warranties..................................................12
Section 10. Covenants of Seller............................................................19
Section 11. Term...........................................................................22
Section 12. Exclusive Benefit of Parties; Assignment.......................................22
Section 13. Amendments; Waivers; Cumulative Rights.........................................22
Section 14. Execution in Counterparts......................................................22
Section 15. Effect of Invalidity of Provisions.............................................22
Section 16. Governing Law..................................................................22
Section 17. Notices........................................................................22
Section 18. Entire Agreement...............................................................22
Section 19. Costs of Enforcement...........................................................23
Section 20. Consent to Service.............................................................23
Section 21. Submission to Jurisdiction.....................................................23
Section 22. Jurisdiction Not Exclusive.....................................................23
Section 23. Construction...................................................................23
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MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement ("Agreement"),
dated as of the date set forth on the cover page hereof, is by and between
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. ("Purchaser") and the Seller whose
name is set forth on the cover page hereof ("Seller").
PRELIMINARY STATEMENT
Seller may, in its sole discretion, offer to sell to Purchaser
from time to time a 100% undivided ownership interest in certain Mortgage Loans,
and Purchaser, in its sole discretion, may agree to purchase such Mortgage Loans
from Seller in accordance with the terms and conditions set forth in this
Agreement. Seller, subject to the terms hereof, will cause each Mortgage Loan to
be purchased by Takeout Investor. During the period from the purchase of a
Mortgage Loan to the sale of the Mortgage Loan to Takeout Investor, Purchaser
expects to rely entirely upon Seller to service such Mortgage Loan.
The parties hereto hereby agree as follows:
Section 1. Definitions.
Capitalized terms used but not defined herein shall have the
meanings set forth in the Custodial Agreement. As used in this Agreement, the
following terms shall have the following meanings:
"Act of Insolvency": With respect to Seller, (a) the commencement
by Seller as debtor of any case or proceeding under any bankruptcy, insolvency,
reorganization, liquidation, dissolution or similar law, or Seller's seeking the
appointment of a receiver, trustee, custodian or similar official for Seller or
any substantial part of its property, or (b) the commencement of any such case
or proceeding against Seller, or another's seeking such appointment, or the
filing against Seller of an application for a protective decree which (1) is
consented to or not timely contested by Seller, (2) results in the entry of an
order for relief, such an appointment, the issuance of such a protective decree
or the entry of an order having a similar effect, or (3) is not dismissed within
thirty (30) days, (c) the making by Seller of a general assignment for the
benefit of creditors, or (d) the admission in writing by Seller that Seller is
unable to pay its debts as they become due or the nonpayment generally by Seller
of its debts as they become due.
"Agency Guide": The FHLMC Guide, the FNMA Guide or the GNMA
Guide, as applicable.
"Agency Program": The FHLMC Program, the FNMA Program or the GNMA
Program, as applicable.
"Applicable Agency": GNMA, FNMA or FHLMC, as applicable.
"Assignee": As defined in Section 7.
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"Business Day": Any day other than (a) a Saturday, Sunday or
other day on which banks located in The City of New York, New York are
authorized or obligated by law or executive order to be closed or (b) any day on
which Purchaser or Seller is closed for business, provided that notice thereof
shall have been given not less than seven (7) calendar days prior to such day,
and provided further that such closing does not conflict with any business
between Seller and Purchaser scheduled for such date prior to the giving of such
notice.
"Collateral": As defined in Section 8(c).
"Commitment Amount": The aggregate outstanding principal amount
of Mortgage Loans to be purchased pursuant to a Takeout Commitment. If the
Commitment Amount is expressed as a fixed amount plus or minus a percentage in
the related Takeout Confirmation, then the amount required to be delivered by
Seller shall be the minimum amount of such range and the amount required to be
purchased by Takeout Investor shall be the maximum amount of such range.
"Commitment Date": The date set forth in a Takeout Confirmation
as the commitment date.
"Commitment Guidelines": The guidelines, if any, issued by
Takeout Investor regarding the issuance of Takeout Commitments, as amended from
time to time by Takeout Investor.
"Commitment Number": With respect to a Takeout Commitment, the
number identified on the Takeout Confirmation as the commitment number.
"Completion Fee": With respect to each Mortgage Loan Pool, an
amount equal to the Discount plus the Net Carry Adjustment, less any reduction
pursuant to Section 4(c), which amount shall be payable to Seller by Purchaser
as compensation to Seller for its services hereunder in connection with the
purchase of a Mortgage Loan Pool.
"Confirmation": A written confirmation of Purchaser's intent to
purchase a Mortgage Loan Pool, which written confirmation shall be substantially
in the form attached hereto as Exhibit F.
"Credit File": All Mortgage Loan papers and documents required to
be maintained pursuant to the Sale Agreement, and all other papers and records
of whatever kind or description whether developed or originated by Seller or
others, required to document or service the Mortgage Loan provided, however,
that such Mortgage Loan papers, documents and records shall not include any
Mortgage Loan papers, documents or records which are contained in the Custodial
File.
"Cure Date": With respect to a Mortgage Loan, the date occurring
15 Business Days after the expiration of the Takeout Commitment unless extended
in writing by the Purchaser.
"Custodial Account": As defined in Section 5(b).
"Custodial Agreement": The Custodial Agreement, dated as of the
date set forth on the cover sheet thereof, among Seller, Purchaser and
Custodian.
"Custodial File": As defined in the Custodial Agreement.
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"Custodian": The Custodian whose name is set forth on the cover
page of the Custodial Agreement and its permitted successors thereunder.
"Cut-off Date": With respect to a Mortgage Loan, the last day of
a month on which the Settlement Date can occur if accrued interest for such
month is to be collected by Takeout Investor.
"Defective Mortgage Loan": With respect to any Mortgage Loan,
either (i) the Document File does not contain a document required to be
contained therein, (ii) a document within a Document File is, in the judgment of
Takeout Investor, defective or inaccurate in any material respect, as determined
upon evaluation of the Document File against the requirements of the Sale
Agreement, or (iii) a document in the Document File is not legal, valid and
binding.
"Discount": With respect to Mortgage Loan Pool sold by Seller to
Purchaser, the amount set forth on the related Confirmation as the Discount.
"Document File": The Credit File and the Custodial File.
"Due Date": The day of the month on which the Monthly Payment is
due on a Mortgage Loan.
"Exhibit B-1 Letter": As defined in Section 2(a).
"Exhibit C-1 Letter": As defined in Section 2(a).
"Expiration Date": With respect to any Takeout Commitment, the
expiration date thereof.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor
thereto.
"FNMA": Federal National Mortgage Association or any successor
thereto.
"GNMA": Government National Mortgage Association or any successor
thereto.
"HUD": United States Department of Housing and Urban Development
or any successor thereto.
"Losses": Any and all losses, claims, damages, liabilities or
expenses (including interest and reasonable attorneys' fees) incurred by any
person specified; provided, however, that "Losses" shall not include any losses,
claims, damages, liabilities or expenses which would have been avoided had such
person taken reasonable actions to mitigate such losses, claims, damages,
liabilities or expenses.
"Monthly Payment": The scheduled monthly payment of principal and
interest on a Mortgage Loan.
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"Mortgage": The mortgage, deed of trust or other instrument
creating a lien on an estate in fee simple in real property securing a Mortgage
Note.
"Mortgage File": Each of the documents identified on Exhibit I
hereto.
"Mortgage Interest Rate": The annual rate of interest borne on a
Mortgage Note.
"Mortgage Loan": A mortgage loan which is subject to this
Agreement, and which satisfies the requirements of the Sale Agreement as the
same may be modified from time to time.
"Mortgage Loan Pool": A group of Mortgage Loans purchased by
Purchaser hereunder and subject to a single Confirmation.
"Mortgage Note": The note or other evidence of the indebtedness
of a Mortgagor secured by a Mortgage.
"Mortgaged Property": The property subject to the lien of the
Mortgage securing a Mortgage Note.
"Mortgagor": The obligor on a Mortgage Note.
"NCUA": National Credit Union Administration, or any successor
thereto.
"Net Carry Adjustment": As defined in Section 4(b).
"Notice of Rejection of Trade Assignment": With respect to any
Mortgage Loan that Purchaser elects not to purchase, a notification by Purchaser
to Takeout Investor in the form of Exhibit G.
"OTS": Office of Thrift Supervision or any successor thereto.
"Parent Company": A corporation or other entity owning at least
50% of the outstanding shares of voting stock of Seller.
"Pass-Through Rate": With respect to each Mortgage Loan Pool
purchased by Purchaser hereunder, the rate at which interest from the Mortgage
is passed through to Purchaser which initially shall be the rate of interest
specified in the related Confirmation as the Pass-Through Rate, subject to
adjustment in the manner agreed to by Purchaser and Seller.
"Price Adjustment": With respect to a Takeout Commitment, the
incremental percentage by which the trade price is adjusted by applying the
appropriate formula set forth in a price adjustment summary sheet when delivered
by Purchaser to Seller which price adjustment summary sheet may be amended from
time to time by Purchaser's delivery to Seller of a new price adjustment summary
sheet.
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"Purchase Date": With respect to any Mortgage Loan Pool purchased
by Purchaser hereunder, the date of payment thereof by Purchaser to Seller of
the Purchase Price.
"Purchase Price": With respect to each Mortgage Loan Pool
purchased by Purchaser hereunder, an amount equal to the Trade Principal less an
amount equal to the product of the Trade Principal and the Discount.
"Purchaser": Greenwich Capital Financial Products, Inc. and its
successors in interest, including, but not limited to, a party to whom a Trust
Receipt is assigned as provided hereunder and in the Custodial Agreement.
"Purchaser's Wire Instructions": The wire instructions set forth
in a letter in the form of Exhibit E.
"RTC": Resolution Trust Corporation or any successor thereto.
"Sale Agreement": The agreement providing for the purchase by
Takeout Investor of Mortgage Loans from Seller.
"Seller": The Seller whose name is set forth on the cover page
hereof and its permitted successors hereunder.
"Seller's Wire Instructions": The wire instructions set forth in
a letter in the form of Exhibit C-2.
"Settlement Date": With respect to any Mortgage Loan, the date of
payment thereof by Takeout Investor to Purchaser of the Takeout Proceeds.
"Settlement Modification Letter": A letter in the form of Exhibit
H.
"Security": A GNMA Security, a FNMA Security or a FHLMC Security.
"Successor Servicer": An entity designated by Purchaser, with
notice provided in conformity with Section 17, to replace Seller as issuer and
servicer, mortgagee or seller/servicer of the Mortgage Loans evidenced by a
Trust Receipt.
"Takeout Commitment": A commitment of Seller to sell one or more
Mortgage Loans to Takeout Investor and of Takeout Investor to purchase one or
more Mortgage Loans from Seller.
"Takeout Confirmation": The written notification to Seller from
Takeout Investor containing all of the relevant details of the Takeout
Commitment, which notification may take the form of a trade confirmation.
"Takeout Investor": An Agency or a Conduit, as applicable.
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"Takeout Proceeds": With respect to any Mortgage Loan Pool, the
related Trade Principal plus accrued interest as calculated in accordance with
Section 3(a)(2), as amended by any related Settlement Modification Letter
accepted by Purchaser.
"Third Party Underwriter": Any third party, including but not
limited to a mortgage loan pool insurer, who underwrites the Mortgage Loan(s)
prior to the purchase by Purchaser of the related Mortgage Loan Pool.
"Third Party Underwriter's Certificate": A certificate issued by
a Third Party Underwriter with respect to a Mortgage Loan, certifying that such
Mortgage Loan complies with its underwriting requirements.
"Trade Assignment": The assignment by Seller to Purchaser of
Seller's rights under a specific Takeout Commitment, in the form of Exhibit D-1,
or of Seller's rights under all Takeout Commitments, in the form of Exhibit D-2.
"Trade Price": The trade price set forth on a Takeout Commitment
less any applicable Price Adjustment.
"Trade Principal": With respect to any Mortgage Loan Pool, the
aggregate outstanding principal balance of such Mortgage Loan multiplied by a
percentage equal to the Trade Price.
"Warehouse Lender": Any lender providing financing to Seller for
the purpose of originating or purchasing Mortgage Loans which has a security
interest in such Mortgage Loans as collateral for the obligations of Seller to
such lender.
"Warehouse Lender's Wire Instructions": The wire instructions set
forth in a letter in the form of Exhibit B-2.
Section 2. Procedures for Purchases of Mortgage Loans
(a) Purchaser may, in its sole discretion, from time to time,
purchase one or more Mortgage Loan Pools from Seller. Prior to Purchaser's
actual purchase of any Mortgage Loan Pool, Purchaser shall have received from
Custodian (i) an original Trust Receipt relating to all Mortgage Loans
(including the Mortgage Loan Pool being purchased) relating to Cash Window
Transactions or Conduit Transactions, as applicable, fully completed and
authenticated by Custodian, (ii) a copy of the Takeout Confirmation related to
the Mortgage Loan(s) in such Mortgage Loan Pool together with a Trade Assignment
in the form of Exhibit D-1 and/or an Acknowledgement of Assignment in the form
of Exhibit D-2, executed by Seller and Takeout Investor, and (iii) an original
letter in the form of Exhibit B-1 (an "Exhibit B-1 Letter") from the applicable
Warehouse Lender (if any), or an original letter in the form of Exhibit C-1 (an
"Exhibit C-1 Letter") in the event that there is no Warehouse Lender.
Simultaneously with the payment by Purchaser of the Purchase Price, in
accordance with the Warehouse Lender's Wire Instructions or Seller's Wire
Instructions, as applicable, with respect to a Mortgage Loan pool, Seller hereby
conveys to Purchaser all of Seller's right, title and interest in and to the
related Mortgage Loan(s) free and clear of any lien, claim or encumbrance.
Notwithstanding the
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satisfaction by Seller of the conditions specified in this Section 2(a),
Purchaser is not obligated to purchase any Mortgage Loans offered to it
hereunder.
(b) If Purchaser elects to purchase any Mortgage Loan Pool,
Purchaser shall pay the amount of the Purchase Price for such Mortgage Loan Pool
by wire transfer of immediately available funds in accordance with the Warehouse
Lender's Wire Instructions or if there is no Warehouse Lender, Seller's Wire
Instructions. Upon such payment and not otherwise, Purchaser shall be deemed to
have accepted the related Trade Assignment. In the event that Purchaser rejects
a Mortgage Loan for purchase for any reason and/or does not transmit the
applicable Purchase Price, (i) the Trust Receipt delivered by Custodian to
Purchaser in anticipation of such purchase shall automatically be null and void
and the previously existing Trust Receipt for that type of transaction shall be
in full force and effect, (ii) Purchaser shall not consummate the transactions
contemplated in the applicable Takeout Confirmation and shall deliver to Takeout
Investor (with a copy to Seller and Custodian) a Notice of Rejection of Trade
Assignment, provided, however, that failure of Purchaser to give such notice
shall not affect the rejection by Purchaser of the Trade Assignment, and (iii)
if Purchaser shall nevertheless receive any portion of the related Takeout
Proceeds, Purchaser shall promptly pay such Takeout Proceeds to Seller in
accordance with Seller's Wire Instructions.
(c) The terms and conditions of the purchase of each Mortgage
Loan Pool shall be as set forth in this Agreement.
Section 3. Sale of Mortgage Loans to Takeout Investor.
(a) With respect to Mortgage Loan(s) that Purchaser has elected
to purchase, Purchaser may, at its option, either (i) instruct Custodian to
deliver to Takeout Investor, in accordance with Takeout Investor's instructions,
the Custodial File in respect of such Mortgage Loans, in the manner and at the
time set forth in the Custodial Agreement, or (ii) provide for the delivery of
the Custodial File through an escrow arrangement satisfactory to Purchaser and
Takeout Investor. Seller shall on or after the Purchase Date, but in no event
later than the related Expiration Date, promptly deliver to Takeout Investor the
related Credit File and thereafter any and all additional documents requested by
Takeout Investor to enable Takeout Investor to purchase such Mortgage Loan(s) on
or before the related Cure Date.
(b) Except when Purchaser has accepted a Settlement Modification
Letter, unless the Takeout Proceeds are received by Purchaser (in immediately
available funds in accordance with Purchaser's Wire Instructions) with respect
to the Mortgage Loans in a Mortgage Pool, on or before the related Cure Date,
the Completion Fee relating to such Mortgage Pool shall not be payable until the
earlier to occur of (1) the date of receipt by Purchaser of the Takeout Proceeds
and, (2) the satisfaction by Seller of its obligations pursuant to the exercise
by Purchaser of any remedial election authorized by this Section 3. Upon receipt
by Purchaser, prior to the Cure Date, of a Settlement Modification Letter, duly
executed by Takeout Investor and Seller, Purchaser may, at its election, agree
to the postponement of the Settlement Date and such other matters as are set
forth in the Settlement Modification Letter. If Purchaser elects to accept a
Settlement Modification Letter, Purchaser shall, not later than two (2) Business
Days after receipt of such Settlement Modification Letter execute the Settlement
Modification Letter and send, via facsimile, copies of such fully executed
Settlement Modification Letter to Seller and Takeout Investor. Upon execution by
Purchaser of a Settlement Modification Letter, Purchaser
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shall recalculate the amount of the Completion Fee, if any, due to Seller using
the new terms included in the Settlement Modification Letter and shall pay to
Seller, not later than two (2) Business Days after Purchaser's execution of such
Settlement Modification Letter, the amount of such recalculated Completion Fee.
(c)(1) If a breach by Seller of this Agreement results in any
Mortgage Loan being a Defective Mortgage Loan at the time of the delivery of the
related Trust Receipt to Purchaser and in Purchaser's sole judgment the defects
in such Mortgage Loan will not be cured (or in fact are not cured) by Seller
prior to the Cure Date, Purchaser, at its election, may require that Seller,
upon receipt of notice from Purchaser of its exercise of such right, either (i)
immediately repurchase Purchaser's ownership interest in such Defective Mortgage
Loan by remitting to Purchaser (in immediately available funds in accordance
with Purchaser's Wire Instructions) the amount paid by Purchaser for such
Defective Mortgage Loan plus interest at the Pass-Through Rate on the principal
amount thereof from the date of Purchaser's purchase of the related Mortgage
Loan Pool to the date of such repurchase or (ii) deliver to Custodian a Mortgage
Loan in exchange for such Defective Mortgage Loan, which newly delivered
Mortgage Loan shall be in all respects acceptable to Purchaser in Purchaser's
reasonable discretion. If the aggregate principal balance of all Mortgage
Loan(s) that are accepted by Purchaser pursuant to clause (ii) of the
immediately preceding sentence is less than the aggregate principal balance of
all Defective Mortgage Loan(s) that are being replaced by such Mortgage Loan(s),
Seller shall remit with such Mortgage Loan to Purchaser an amount equal to the
difference between the aggregate principal balance of the new Mortgage Loan(s)
accepted by Purchaser and the aggregate principal balance of the Defective
Mortgage Loan(s) being replaced thereby.
(c)(2) If Seller fails to comply with its obligations in the
manner described in Section 3(c)(1), not later than the third day after receipt
by Seller of notice from Purchaser, Seller's rights and obligations to service
Mortgage Loan(s) as provided in this Agreement, shall terminate. If an Act of
Insolvency occurs at any time, Seller's rights and obligations to service the
Mortgage Loan(s), as provided in this Agreement, shall terminate immediately,
without any notice or action by Purchaser. Upon any such termination, Purchaser
is hereby authorized and empowered as the exclusive agent for Seller to sell and
transfer such rights to service the Mortgage Loan(s) for such price and on such
terms and conditions as Purchaser shall reasonably determine, and Seller shall
not otherwise attempt to sell or transfer such rights to service without the
prior consent of Purchaser. Seller shall perform all acts and take all action so
that the Mortgage Loan(s) and all files and documents relating to such Mortgage
Loan(s) held by Seller, together with all escrow amounts relating to such
Mortgage Loan(s), are delivered to Successor Servicer. To the extent that the
approval of any Third Party Underwriter or any other insurer or guarantor is
required for any such sale or transfer, Seller shall fully cooperate with
Purchaser to obtain such approval. Upon exercise by Purchaser of its remedies
under this Section 3(c)(2), Seller hereby authorizes Purchaser to receive all
amounts paid by any purchaser of such rights to service the Mortgage Loan(s) and
to remit such amounts to Seller subject to Purchaser's rights of set-off under
this Agreement. Upon exercise by Purchaser of its remedies under this Section
3(c)(2), Purchaser's obligation to pay and Seller's right to receive any portion
of the Completion Fee relating to such Mortgage Loan(s) shall automatically be
canceled and become null and void, provided that such cancellation shall in no
way relieve Seller or otherwise affect the obligation of Seller to indemnify and
hold Purchaser harmless as specified in Section 3(f).
(d) Each Mortgage Loan required to be delivered to Successor
Servicer by Section 3(c)(2) shall be delivered free of any servicing rights in
favor of Seller and free of any title, interest,
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lien, encumbrance or claim of any kind of Seller and Seller hereby waives its
right to assert any interest, lien, encumbrance or claim of any kind. Seller
shall deliver or cause to be delivered all files and documents relating to each
Mortgage Loan held by Seller to Successor Servicer. Seller shall promptly take
such actions and furnish to Purchaser such documents that Purchaser deems
necessary or appropriate to enable Purchaser to cure any defect in each such
Mortgage Loan or to enforce such Mortgage Loans, as appropriate.
(e) In the event that a Mortgage Loan or Mortgage Pool is not
purchased by a Takeout Investor on or before the Cure Date, upon not less than
five (5) days notice from Purchaser to Seller, Seller shall either obtain a
Takeout Commitment from another Takeout Investor to purchase such Mortgage Loan
or Mortgage Pool or issue a Takeout Commitment on its own behalf to purchase
such Mortgage Loan or Mortgage Pool.
(f) Seller agrees to indemnify and hold Purchaser and its assigns
harmless from and against all Losses resulting from or relating to any breach or
failure to perform by Seller of any representation, warranty, covenant, term or
condition made or to be performed by Seller under this Agreement.
(g) No exercise by Purchaser of its rights under this Section 3
shall relieve Seller of responsibility or liability for any breach of this
Agreement.
(h) Seller hereby grants Purchaser a right of set-off against the
payment of any amounts that may be due and payable to Purchaser from Seller,
such right to be upon any and all monies or other property of Seller held or
received by Purchaser, or due and owing from Purchaser to Seller.
Section 4. Completion Fee.
(a) With respect to each Mortgage Loan Pool that Purchaser elects
to purchase hereunder, Purchaser shall pay to Seller a Completion Fee. The
Completion Fee shall be payable by Purchaser as provided in subsection (e)
below.
(b) For purposes of calculating that portion of the Completion
Fee composed of the "Net Carry Adjustment", the Net Carry Adjustment shall be an
amount (which may be a negative number) equal to (A) the product obtained by
multiplying the number of days in the period beginning on the Purchase Date to
but not including the Settlement Date and the difference between (i) the product
of the rate of interest to be borne by the related Mortgage Loans in the
Mortgage Pool and the aggregate principal amount of such Mortgage Loans and (ii)
the daily application of the applicable Pass-Through Rate to the Purchase Price;
divided by (B) 360.
(c)(i) If a Mortgage Loan Pool is purchased by Purchaser in the
month prior to the month in which the related Settlement Date occurs, (A) all
interest which accrues on the related Mortgage Loans, on and after the Purchase
Date, through the last day of the month prior to the month in which such
Settlement Date occurs, shall be paid to Purchaser by Seller, as servicer, on
the related Settlement Date and (B) all interest which accrues on the Mortgage
Loans in such Mortgage Loan Pool on and after the first day of the month in
which such Settlement Date occurs, through the day immediately prior to such
Settlement Date, will be paid to Purchaser by Takeout Investor on such
Settlement Date unless such Settlement Date occurs after the Cut-off Date of
such month in which event
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Seller, as servicer, shall pay such amount to Purchaser on such Settlement Date.
If a Mortgage Loan Pool is purchased by Purchaser in the same month in which the
related Settlement Date occurs, (A) all interest, if any, which accrues on such
Mortgage Loan(s) from the first day of such month to but not including the
related Purchase Date shall be paid by Purchaser to Seller on such Settlement
Date, and (B) all interest which accrues on such Mortgage Loan(s), on and after
the Purchase Date to but not including the Settlement Date will be paid to
Purchaser by Takeout Investor on the Settlement Date unless such Settlement Date
occurs after the Cut-off Date or in a month in which interest has been prepaid
by the Mortgagor in either of which events Seller, as servicer, shall pay such
amount to Purchaser on such Settlement Date. For purposes of this paragraph all
interest payments shall be deemed to accrue at the applicable rate set forth in
the related Takeout Commitment.
(ii) In circumstances where a Mortgage Loan is not purchased by
the Takeout Investor on or before the Settlement Date, in the event Purchaser
elects not to declare a default hereunder, Purchaser may adjust and reduce the
Completion Fee as specified by Purchaser in the Confirmation. Notwithstanding
the preceding sentence, Purchaser is under no obligation to waive any default or
forebear from exercising its remedies hereunder and one waiver or forebearance
shall not constitute evidence of any pattern or create any obligation by
Purchaser to waive or forebear in the future.
(d) It is understood by Seller and Purchaser that, if Seller
requests and Purchaser agrees to pay the Completion Fee prior to the Settlement
Date, the amount of such Completion Fee shall be adjusted as mutually agreed by
Seller and Purchaser.
(e) The Completion Fee relating to each Mortgage Loan Pool is
payable on the earlier to occur of (1) the date of receipt by Purchaser of the
Trade Price, and (2) the satisfaction by Seller of its obligations pursuant to
this Agreement notwithstanding the exercise by Purchaser of any remedial
election authorized herein.
Section 5. Servicing of the Mortgage Loans.
(a) Seller shall service and administer the Mortgage Loan(s) on
behalf of Purchaser in accordance with prudent mortgage loan servicing standards
and procedures generally accepted in the mortgage banking industry and in
accordance with the requirements of Takeout Investor, provided that Seller shall
at all times comply with applicable law, and the requirements of any applicable
insurer or guarantor including, without limitation, any Third Party Underwriter,
so that the insurance in respect of any Mortgage Loan is not voided or reduced.
Seller shall at all times maintain accurate and complete records of its
servicing of each Mortgage Loan, and Purchaser may, at any time during Seller's
business hours on reasonable notice, examine and make copies of such records. In
addition, if a Mortgage Loan is not purchased by Takeout Investor on or before
the Cure Date, Seller shall at Purchaser's request deliver to Purchaser monthly
reports regarding the status of such Mortgage Loan, which reports shall include,
but shall not be limited to, a description of each Mortgage Loan in default for
more than thirty (30) days, and such other circumstances with respect to any
Mortgage Loan (whether or not such Mortgage Loan is included in the foregoing
list) that could materially adversely affect any such Mortgage Loan, Purchaser's
ownership of any such Mortgage Loan or the collateral securing any such Mortgage
Loan. Seller shall deliver such a report to Purchaser every thirty (30) days
until (i) the purchase by Takeout Investor of such Mortgage Loan pursuant to the
related Takeout Commitment or (ii) the exercise by Purchaser of any remedial
election pursuant to Section 3.
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(b) Within five (5) business days of notice from Purchaser,
Seller shall establish and maintain a separate custodial account (the "Custodial
Account") entitled "Greenwich Capital Financial Products, Inc. and its assignees
under the Mortgage Loan Purchase and Sale Agreement dated [the date of this
Agreement]" and shall promptly deposit into such account in the form received
with any necessary endorsements all collections received in respect of each
Mortgage Loan that are payable to Purchaser as the owner of each such Mortgage
Loan.
(c) Amounts deposited in the Custodial Account with respect to
any Mortgage Loan shall be held in trust for Purchaser as the owner of such
Mortgage Loan and shall be released only as follows:
(1) Except as otherwise provided in Section 5(c)(2),
following receipt by Purchaser or its designee of the Takeout
Proceeds for such Mortgage Loan from Takeout Investor, amounts
deposited in the Custodial Account related to such Mortgage Loan
not otherwise subject to setoff as provided hereunder shall be
released to Seller. The amounts paid to Seller (if any) pursuant
to this Section 5(c)(1) shall constitute Seller's sole
compensation for servicing the Mortgage Loans as provided in this
Section 5.
(2) If Successor Servicer takes delivery of such Mortgage
Loan (either under the circumstances set forth in Section 3 or
otherwise), all amounts deposited in the Custodial Account shall
be paid to Purchaser promptly upon such delivery.
(3) If a Mortgage Loan is not purchased by Takeout
Investor on or before the Cure Date, during the period thereafter
that Seller remains as servicer, all amounts deposited in the
Custodial Account shall be released only in accordance with a
Purchaser's written instructions.
Section 6. Trade Assignments. Seller hereby assigns to Purchaser,
free of any security interest, lien, claim or encumbrance of any kind, Seller's
rights, under each Takeout Commitment to deliver the Mortgage Loan(s) specified
therein to the related Takeout Investor and to receive the Takeout Proceeds
therefor from such Takeout Investor. Purchaser shall not be deemed to have
accepted any Trade Assignment unless and until it purchases the related Mortgage
Loans, and nothing set forth herein shall be deemed to impair Purchaser's right
to reject any Mortgage Loan for any reason, in its sole discretion.
Section 7. Transfers of Beneficial Interest in Mortgage Loans by
Purchaser. Purchaser may, in its sole discretion, assign all of its right, title
and interest in or grant a security interest in any Mortgage Loan sold by Seller
hereunder and all rights of Purchaser under this Agreement and the Custodial
Agreement, in respect of such Mortgage Loan to a tri-party custody and clearing
agent ("Assignee"), subject only to an obligation on the part of Assignee to
deliver each such Mortgage Loan to Takeout Investor pursuant to Section 6 or to
Purchaser to permit Purchaser or its designee to make delivery thereof to a
Takeout Investor pursuant to Section 6. It is anticipated that such assignment
to an Assignee will be made by Purchaser, and Seller hereby irrevocably consents
to such assignment. No notice of such assignment shall be given by Purchaser to
Seller or Takeout Investor. Assignment by
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Purchaser of the Mortgage Loans as provided in this Section 7 shall not release
Purchaser from its obligations under this Agreement.
Without limitation of the foregoing, an assignment of the
Mortgage Loans to an Assignee, as described in this Section 7, shall be
effective upon delivery to the Assignee of a duly executed and authenticated
Trust Receipt.
Section 8. Record Title to Mortgage Loans; Intent of Parties;
Security Interest.
(a) From and after the issuance and delivery of the related Trust
Receipt, and subject to the remedies of Purchaser in Section 3, Seller shall
remain the last named payee or endorsee of each Mortgage Note and the mortgagee
or assignee of record of each Mortgage in trust for the benefit of Purchaser,
for the sole purpose of facilitating the servicing of such Mortgage Loan.
(b) Seller shall maintain a complete set of books and records for
each Mortgage Loan which shall be clearly marked to reflect the ownership
interest in each Mortgage Loan of the holder of the related Trust Receipt.
(c) Purchaser and Seller confirm that the transactions
contemplated herein are intended to be sales of the Mortgage Loans by Seller to
Purchaser rather than borrowings secured by the Mortgage Loans. In the event,
for any reason, any transaction is construed by any court or regulatory
authority as a borrowing rather than as a sale, Seller and Purchaser intend that
Purchaser or its Assignee, as the case may be, shall have a perfected first
priority security interest in the Mortgage Loans, the Custodial Account, and all
proceeds thereof, the Takeout Commitments and the proceeds of any and all of the
foregoing (collectively, the "Collateral"), free and clear of adverse claims. In
such case, Seller shall be deemed to have hereby granted to Purchaser or
Assignee, as the case may be, a first priority security interest in and lien
upon the Collateral, free and clear of adverse claims. In such event, this
Agreement shall constitute a security agreement, the Custodian shall be deemed
to be an independent custodian for purposes of perfection of the security
interest granted to Purchaser or Assignee, as the case may be, and Purchaser or
Assignee, as the case may be, shall have all of the rights of a secured party
under applicable law.
(d) Upon not less than two Business Days prior written notice,
Seller shall deliver to Custodian (or if so requested, directly to Purchaser or
its Assignee) a complete Mortgage File containing all of the documents listed in
Exhibit I hereto.
Section 9. Representations and Warranties.
(a) Seller hereby represents and warrants to Purchaser as of the
date hereof and as of the date of each issuance and delivery of a Trust Receipt
that:
(i) Seller is duly organized, validly existing and in good
standing under the laws of the state of its organization and has
all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in the
state where the Mortgaged Property is located if the laws of such
state require licensing
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or qualification in order to conduct business of the type
conducted by Seller. Seller has all requisite power and authority
(including, if applicable, corporate power) to execute and
deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this
Agreement) by Seller and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this
Agreement evidences the valid, binding and enforceable obligation
of Seller; and all requisite action (including, if applicable,
corporate action) has been taken by Seller to make this Agreement
valid and binding upon Seller in accordance with its terms;
(ii) No approval of the transactions contemplated by this
Agreement from the OTS, the NCUA, the FDIC or any similar federal
or state regulatory authority having jurisdiction over Seller is
required, or if required, such approval has been obtained. There
are no actions or proceedings pending or affecting Seller which
would adversely affect its ability to perform hereunder. The
transfers, assignments and conveyances provided for herein are
not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(iii) The consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of Seller
and will not result in the breach of any term or provision of the
charter or by-laws of Seller or result in the breach of any term
or provision of, or conflict with or constitute a default under
or result in the acceleration of any obligation under, any
agreement, indenture or loan or credit agreement or other
instrument to which Seller or its property is subject, or result
in the violation of any law, rule, regulation, order, judgment or
decree to which Seller or its property is subject;
(iv) This Agreement, the Custodial Agreement and every
document to be executed by Seller pursuant to this Agreement is
and will be valid, binding and subsisting obligations of Seller,
enforceable in accordance with their respective terms. No
consents or approvals are required to be obtained by Seller or
its Parent Company for the execution, delivery and performance of
this Agreement or the Custodial Agreement by Seller;
(v) Seller has not sold, assigned, transferred, pledged or
hypothecated any interest in any Mortgage Loan sold hereunder to
any person other than Purchaser, and upon delivery of a related
Trust Receipt to Purchaser, Purchaser will be the sole owner
thereof, free and clear of any lien, claim or encumbrance; and
(vi) All information relating to Seller that Seller has
delivered or caused to be delivered to Purchaser, including, but
not limited to, all documents related to this Agreement, the
Custodial Agreement or Seller's financial statements, does not
contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made therein or
herein in light of the circumstances under which they were made,
not misleading.
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(b) Seller hereby represents and warrants to Purchaser as of the date
hereof and as of each Purchase Date the Custodian is an eligible custodian as
determined by FNMA, FHMLC and GNMA, and is not an Affiliate of the Seller.
(c) Seller hereby represents, warrants and covenants to Purchaser with
respect to each Mortgage Loan as of each Purchase Date of the related Mortgage
Loan that:
(i) The Mortgage Loan conforms in all respects to the
requirements of this Agreement, the Sale Agreement, the
Commitment Guidelines and the requirements of the related Third
Party Underwriter's Certificate;
(ii) Seller is the sole owner and holder of the Mortgage
Loan free and clear of any and all liens, pledges, charges or
security interests of any nature and has full right and
authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same
pursuant to this Agreement;
(iii) No servicing agreement has been entered into with
respect to the Mortgage Loan, or any such servicing agreement has
been terminated and there are no restrictions, contractual or
governmental, which would impair the ability of Purchaser or
Purchaser's designees from servicing the Mortgage Loan;
(iv) The Mortgage is a valid and subsisting lien on the
property therein described and the Mortgaged Property is free and
clear of all encumbrances and liens having priority over the lien
of the Mortgage except for liens for real estate taxes and
special assessments not yet due and payable and other liens
permitted by Purchaser. In the event that the Mortgage is not a
first priority lien on the property described therein, there is
no event of default or situation which upon the passage of time
would become a default under any obligation secured by a senior
lien on the Mortgaged Property. Any pledge account, security
agreement, chattel mortgage or equivalent document related to,
and delivered to Purchaser with the Mortgage, establishes in
Seller a valid and subsisting lien on the property described and
the priority provided therein, and Seller has full right to sell
and assign the same to Purchaser;
(v) Neither Seller nor any prior holder of the Mortgage
has modified the Mortgage in any material respect; satisfied,
canceled or subordinated the Mortgage in whole or in part;
released the Mortgaged Property in whole or in part from the lien
of the Mortgage; or executed any instrument of release,
cancellation, modification or satisfaction unless such release,
cancellation, modification or satisfaction does not adversely
affect the value of the Mortgage Loan and is contained in the
related Document File;
(vi) The Mortgage Loan is not in default, and all Monthly
Payments due prior to the Purchase Date and all taxes,
governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents have been
paid. Seller has not advanced funds, or induced or solicited any
advance of funds by a party other than the Mortgagor directly or
indirectly, for the payment of any amount required by the
Mortgage Loan. The collection practices used by each entity which
has
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serviced the Mortgage Loan have been in all respects legal,
proper, prudent, and customary in the mortgage servicing
business. With respect to escrow deposits and payments in those
instances where such were required, there exist no deficiencies
in connection therewith for which customary arrangements for
repayment thereof have not been made and no escrow deposits or
payments or other charges or payments have been capitalized under
any Mortgage or the related Mortgage Note;
(vii) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage
Note and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute
a default, breach, violation or event of acceleration; and Seller
has not waived any default, breach, violation or event of
acceleration;
(viii) The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of
the Mortgage Note or the Mortgage, or the exercise of any right
thereunder, render either the Mortgage Note or the Mortgage
unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the
defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto;
(ix) The Mortgage Note and the related Mortgage are
genuine and each is the legal, valid and binding obligation of
the maker thereof, enforceable in accordance with its terms. All
parties to the Mortgage Note and the Mortgage had legal capacity
to execute the Mortgage Note and the Mortgage and each Mortgage
Note and Mortgage have been duly and properly executed by the
Mortgagor;
(x) The Mortgage Loan meets, or is exempt from, applicable
state or federal laws, regulations and other requirements
pertaining to usury, and the Mortgage Loan is not usurious;
(xi) Any and all requirements of any federal, state or
local law including, without limitation, truth-in-lending, real
estate settlement procedures, consumer credit protection, equal
credit opportunity or disclosure laws applicable to the Mortgage
Loan have been complied with, and Seller shall deliver to
Purchaser upon demand, evidence of compliance with all such
requirements;
(xii) Either: (A) Seller and every other holder of the
Mortgage, if any, were authorized to transact and do business in
the jurisdiction in which the Mortgaged Property is located at
all times when such party held the Mortgage; or (B) the loan of
mortgage funds, the acquisition of the Mortgage (if Seller was
not the original lender), the holding of the Mortgage and the
transfer of the Mortgage did not constitute the transaction of
business or the doing of business in such jurisdiction;
(xiii) Not less than 95% of the proceeds of the Mortgage
Loan have been fully disbursed, there is no requirement for
future advances thereunder greater than 5% of the Mortgage Loan
and any and all requirements as to completion of any on site or
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off-site improvements and as to disbursements of any escrow
funds, therefore, have been or will be complied with. All costs,
fees and expenses incurred in making, closing or recording the
Mortgage Loans were paid;
(xiv) The related Mortgage contains customary and
enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security, including,
(i) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (ii) otherwise by judicial foreclosure. There
is no homestead or other exemption available to the Mortgagor
which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the
Mortgage;
(xv) The Mortgage Loan was originated free of any
"original issue discount" with respect to which the owner of the
Mortgage Loan could be deemed to have income pursuant to Sections
1271 et seq. of the Internal Revenue Code;
(xvi) Each Mortgage Loan was originated by an institution
described in Section 3(a)(41)(A)(ii) of the Securities Exchange
Act of 1934, as amended;
(xvii) At origination, the Mortgaged Property was free and
clear of all mechanics' and materialmen's liens or liens in the
nature thereof which are or could be prior to the Mortgage lien
except as provided in the Mortgage, and no rights are outstanding
that under law could give rise to any such lien;
(xviii) All of the improvements which are included for the
purpose of determining the appraised value of the Mortgaged
Property lie wholly within the boundaries and building
restriction lines of such property, and no improvements on
adjoining properties encroach upon the Mortgaged Property;
(xix) At origination, no improvement located on or being
part of the Mortgaged Property was in violation of any applicable
zoning law or regulation and all inspections, licenses and
certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property, and with respect to
the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, had
been made or obtained from the appropriate authorities and the
Mortgaged Property was lawfully occupied under applicable law. No
improvement located on or being part of the Mortgaged Property is
in violation of any applicable zoning law or regulation and all
inspections, licenses and certificates required to be made or
issued with respect to the Mortgaged Property, and with respect
to the use and occupancy of the same, including but not limited
to certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities and
the Mortgaged Property is lawfully occupied under applicable law;
(xx) There is no proceeding pending for the total or
partial condemnation of the Mortgaged Property and said property
is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty;
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(xxi) The Custodial File contains and the Credit File
contains or shall contain prior to the Cure Date each of the
documents and instruments specified to be included therein duly
executed and in due and proper form and each such document or
instrument is either in form acceptable to the Applicable Agency
or is a uniform instrument. Each Mortgage Note and Mortgage are
on forms approved by or to the best of the Seller's knowledge
would be approved by the Applicable Agency with such riders as
have been approved by or to the best of the Seller's knowledge
would be approved by the Applicable Agency; Seller is currently
in possession of the Custodial File for each Mortgage Loan and is
in possession or shall be prior to the Expiration Date of the
Credit File for each Mortgage Loan and there are no custodial
agreements in effect adversely affecting the rights of Seller to
make the deliveries required within the required time. Seller
shall not deliver a Credit File to Takeout Investor after the
related Commitment Date;
(xxii) Each Mortgage Loan is covered by a mortgage title
insurance policy acceptable to FNMA, issued by, and the valid and
binding obligation of, a title insurer acceptable to FNMA and
qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring Seller, its successors and assigns,
as to the validity and appropriate priority of the lien created
by the Mortgage in the original principal amount of the Mortgage
Loan, Seller is the named insured and the sole insured of such
mortgage title insurance policy, the assignment to Purchaser of
Seller's interest in such mortgage title insurance policy does
not require the consent of or notification to the insurer, such
mortgage title insurance policy is in full force and effect and
will be in full force and effect and inure to the benefit of
Purchaser upon the consummation of the transactions contemplated
by this Agreement and no claims have been made under such
mortgage title insurance policy and no prior holder of the
related Mortgage, including Seller, has done, by act or omission,
anything which would impair the coverage of such mortgage title
insurance policy;
(xxiii) All buildings upon the Mortgaged Property are
insured against loss by fire, hazards of extended coverage and
such other hazards as are customary in the area where the
Mortgaged Property is located, pursuant to fire and hazard
insurance policies with extended coverage or other insurance
required by the Sale Agreement, in an amount at least equal to
the lesser of (i) the outstanding principal balance of the
Mortgage Loan or (ii) the maximum insurable value (replacement
cost without deduction for depreciation) of the improvements
constituting the Mortgaged Property. If applicable laws limit the
amount of such insurance to the replacement cost of the
improvements constituting the Mortgaged Property or to some other
amount, then such insurance is in an amount equal to the maximum
allowed by such laws. Such insurance amount is sufficient to
prevent the Mortgagor or the loss payee under the policy from
becoming a co-insurer. The insurer issuing such insurance is
acceptable pursuant to the Sale Agreement. All individual
insurance policies contain a standard mortgagee clause naming
Seller, its successors and assigns, as mortgagee and all premiums
thereon have been paid. Each Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at Mortgagor's cost and
expense, and upon the Mortgagor's failure to do so, authorizes
the holder of the Mortgage to obtain and maintain such insurance
at
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Mortgagor's cost and expense and to seek reimbursement therefor
from the Mortgagor. Any flood insurance required by applicable
law has been obtained;
(xxiv) The original principal amount of the related
Mortgage Note (plus the amount of all other prior obligations for
which their is a senior lien on the Mortgaged Property) either
(a) was not more than 80% of the lesser of (i) the purchase price
of the Mortgaged Property paid by the Mortgagor at the
origination of the Mortgage Loan and (ii) the appraised value of
the Mortgaged Property, such appraised value being, for the
purposes hereof, the amount set forth in an appraisal made in
connection with the origination of such Mortgage Loan, or (b) is
and will be insured as to payment defaults by a policy of primary
mortgage guaranty insurance in accordance with the Sale Agreement
and all provisions of such primary mortgage guaranty insurance
policy have been and are being complied with, such policy is in
full force and effect, and all premiums due thereunder have been
paid. Any Mortgage Loan subject to any such policy of primary
mortgage guaranty insurance obligates the Mortgagor thereunder to
maintain such insurance and pay all premiums and charges in
connection therewith. The original principal amount of each
Mortgage Note was not more than 95% of the purchase price of the
related Mortgaged Property paid by the Mortgagor at the
origination of the Mortgage Loan. No action, event or state of
facts exists or has existed which, because involving or arising
from any dishonest, fraudulent, criminal, negligent or knowingly
wrongful act, error or omission by the Mortgagor or the
originator or servicer of the Mortgage Loan, would result in the
exclusion from, denial of, or defense to coverage which otherwise
would be provided by such insurance;
(xxv) At the time that the related Mortgage Loan was made
the Mortgagor represented that the Mortgagor would occupy such
Mortgaged Property as Mortgagor's primary residence;
(xxvi) The Mortgaged Property consists of a single parcel
of real property;
(xxvii) There are no circumstances or conditions with
respect to the Mortgage, the Mortgaged Property, the Mortgagor or
the Mortgagor's credit standing that can be reasonably expected
to cause private institutional investors to regard the Mortgage
Loan as an unacceptable investment, cause the Mortgage Loan to
become delinquent or adversely affect the value or marketability
of the Mortgage Loan;
(xxviii) Such Mortgage Loan was, immediately prior to the
sale to Purchaser of the related Mortgage Loan Pool, owned solely
by Seller, is not subject to any lien, claim or encumbrance,
including, without limitation, any such interest pursuant to a
loan or credit agreement for warehousing mortgage loans, and was
originated and serviced in accordance with all applicable law and
regulations, including without limitation the Federal
Truth-in-Lending Act, the Real Estate Settlement Procedures Act,
regulations issued pursuant to any of the aforesaid, and any and
all rules, requirements, guidelines and announcements of the
Applicable Agency, and, as applicable, the FHA and VA, as the
same may be amended from time to time;
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(xxix) The improvements on the land securing such Mortgage
Loan are and will be kept insured at all times by responsible
insurance companies reasonably acceptable to Purchaser against
fire and extended coverage hazards under policies, binders or
certificates of insurance with a standard mortgagee clause in
favor of Seller and its assigns, providing that such policy may
not be canceled without prior notice to Seller. Any proceeds of
such insurance shall be held in trust for the benefit of
Purchaser. The scope and amount of such insurance shall satisfy
the rules, requirements, guidelines and announcements of the
Applicable Agency, and shall in all cases be at least equal to
the lesser of (A) the principal amount of such Mortgage Loan or
(B) the maximum amount permitted by applicable law, and shall not
be subject to reduction below such amount through the operation
of a coinsurance, reduced rate contribution or similar clause;
(xxx) Each Mortgage is a valid first lien on the mortgaged
property and is covered by an attorney's opinion of title
acceptable to GNMA, FNMA or FHLMC, as applicable, or by a policy
of title insurance on a standard ALTA or similar lender's form in
favor of Seller and its assigns, subject only to exceptions
permitted by the GNMA, FNMA or FHLMC Program, as applicable.
Seller shall hold in trust for Purchaser such policy of title
insurance, and, upon request of Purchaser, shall immediately
deliver such policy to Purchaser or to the Custodian on behalf of
Purchaser;
(xxxi) To the extent applicable, such Mortgage Loan is
either insured by the FHA under the National Housing Act,
guaranteed by the VA under the Servicemen's Readjustment Act of
1944 or is otherwise insured or guaranteed in accordance with the
requirements of the GNMA, FNMA or FHLMC Program, as applicable,
and is not subject to any defect that would prevent recovery in
full or in part against the FHA, VA or other insurer or
guarantor, as the case may be;
(xxxii) Such Mortgage Loan is in strict compliance with
the requirements and specifications (including, without
limitation, all representations and warranties required in
respect thereof) set forth in the GNMA Guide, FNMA Guide or FHLMC
Guide, as applicable; and
(xxxiii) To the extent applicable, each Mortgage Loan is
being serviced by a mortgage sub-servicer having all Approvals
necessary to make such Mortgage Loan eligible to back a GNMA,
FNMA or FHLMC Security, as applicable.
(d) Seller hereby represents and warrants to Purchaser as of the date
hereof and as of the date of each delivery of a Mortgage Loan Pool that the
Custodian is an eligible custodian under the Agency Guide and Agency Program,
and is not an Affiliate of the Seller.
The representations and warranties of Seller in this Section 9 are
unaffected by and supersede any provision in any endorsement of any Mortgage
Loan or in any assignment with respect to such Mortgage Loan to the effect that
such endorsement or assignment is without recourse or without representation or
warranty.
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Section 10. Covenants of Seller. Seller hereby covenants and
agrees with Purchaser as follows:
(a) Seller shall deliver to Purchaser:
(i) Within one hundred twenty (120) days after the end of
each fiscal year of Seller, consolidated balance sheets of Seller
and its consolidated subsidiaries and the related consolidated
statements of income showing the financial condition of Seller
and its consolidated subsidiaries as of the close of such fiscal
year and the results of operations during such year, and a
consolidated statement of cash flows, as of the close of such
fiscal year, setting forth, in each case, in comparative form the
corresponding figures for the preceding year, all the foregoing
consolidated financial statements to be reported on by, and to
carry the report (acceptable in form and content to Purchaser) of
an independent public accountant of national standing acceptable
to Purchaser;
(ii) Within sixty (60) days after the end of each of the
first three fiscal quarters of each fiscal year of Seller,
unaudited consolidated balance sheets and consolidated statements
of income, all to be in a form acceptable to Purchaser, showing
the financial condition and results of operations of Seller and
its consolidated subsidiaries on a consolidated basis as of the
end of each such quarter and for the then elapsed portion of the
fiscal year, setting forth, in each case, in comparative form the
corresponding figures for the corresponding periods of the
preceding fiscal year, certified by a financial officer of Seller
(acceptable to Purchaser) as presenting fairly the financial
position and results of operations of Seller and its consolidated
subsidiaries and as having been prepared in accordance with
generally accepted accounting principles consistently applied, in
each case, subject to normal year-end audit adjustments;
(iii) Promptly upon receipt thereof, a copy of each other
report submitted to Seller by its independent public accountants
in connection with any annual, interim or special audit of
Seller;
(iv) Promptly upon becoming aware thereof, notice of (1)
the commencement of, or any determination in, any legal, judicial
or regulatory proceedings, (2) any dispute between Seller or its
Parent Company and any governmental or regulatory body, (3) any
event or condition, which, in any case of (1) or (2) if adversely
determined, would have a material adverse effect on (A) the
validity or enforceability of this Agreement, (B) the financial
condition or business operations of Seller, or (C) the ability of
Seller to fulfill its obligations under this Agreement or (4) any
material adverse change in the business, operations, prospects or
financial condition of Seller, including, without limitation, the
insolvency of Seller or its Parent Company;
(v) Promptly upon becoming available, copies of all
financial statements, reports, notices and proxy statements sent
by its Parent Company, Seller or any of Seller's consolidated
subsidiaries in a general mailing to their respective
stockholders and of all reports and other material (including
copies of all registration statements under the Securities Act of
1933, as amended) filed by any of them with any securities
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exchange or with the Securities and Exchange Commission or any
governmental authority succeeding to any or all of the functions
of said Commission;
(vi) Promptly upon becoming available, copies of any press
releases issued by its Parent Company or Seller and copies of any
annual and quarterly financial reports and any reports on Form
H-(b)12 which its Parent Company or Seller may be required to
file with the OTS or the RTC or comparable reports which a Parent
Company or Seller may be required to file with the FDIC or any
other federal banking agency containing such financial statements
and other information concerning such Parent Company's or
Seller's business and affairs as is required to be included in
such reports in accordance with the rules and regulations of the
OTS, the RTC, the FDIC or such other banking agency, as may be
promulgated from time to time;
(vii) Such supplements to the aforementioned documents and
such other information regarding the operations, business,
affairs and financial condition of its Parent Company, Seller or
any of Seller's consolidated subsidiaries as Purchaser may
request;
(viii) A copy of (1) the articles of incorporation of
Seller and any amendments thereto, certified by the Secretary of
State of Seller's state of incorporation, (2) a copy of Seller's
by-laws, together with any amendments thereto, (3) a copy of the
resolutions adopted by Seller's Board of Directors authorizing
Seller to enter into this Agreement and the Custodial Agreement
and authorizing one or more of Seller's officers to execute the
documents related to this Agreement and the Custodial Agreement,
and (4) a certificate of incumbency and signature of each officer
of Seller executing any document in connection with this
Agreement;
(ix) Neither Seller nor any affiliate thereof will acquire
at any time any economic interest in or obligation with respect
to any Mortgage Loan;
(x) Under generally accepted accounting principles
("GAAP") and for federal income tax purposes, Seller will report
each sale of a Mortgage Loan to the Purchaser hereunder as a sale
of the ownership interest in the Mortgage Loan. Seller has been
advised by or has confirmed with its independent public
accountants that the foregoing transactions will be so classified
under GAAP;
(xi) The consideration received by Seller upon the sale of
each Mortgage Loan Pool will constitute reasonably equivalent
value and fair consideration for the ownership interest in the
Mortgage Loans included therein;
(xii) Seller will be solvent at all relevant times prior
to, and will not be rendered insolvent by, any sale of a Mortgage
Loan to the Purchaser; and
(xiii) Seller will not sell any Mortgage Loan to the
Purchaser with any intent to hinder, delay or defraud any of
Seller's creditors.
-21-
24
(b) Seller shall comply, in all material respects, with all laws,
rules and regulations to which it is or may become subject.
(c) Seller shall, upon request of Purchaser, promptly execute and
deliver to Purchaser all such other and further documents and instruments of
transfer, conveyance and assignment, and shall take such other action as
Purchaser may require more effectively to transfer, convey, assign to and vest
in Purchaser and to put Purchaser in possession of the property to be
transferred, conveyed, assigned and delivered hereunder and otherwise to carry
out more effectively the intent of the provisions under this Agreement.
Section 11. Term. This Agreement shall continue in effect until
terminated as to future transactions by written instruction signed by either
Seller or Purchaser and delivered to the other, provided that no termination
will affect the obligations hereunder as to any of the Mortgage Loans purchased
hereunder.
Section 12. Exclusive Benefit of Parties; Assignment. This
Agreement is for the exclusive benefit of the parties hereto and their
respective successors and assigns and shall not be deemed to give any legal or
equitable right to any other person, including the Custodian. Except as provided
in Section 7, no rights or obligations created by this Agreement may be assigned
by any party hereto without the prior written consent of the other parties.
Section 13. Amendments; Waivers; Cumulative Rights. This
Agreement may be amended from time to time only by written agreement of Seller
and Purchaser. Any forbearance, failure or delay by either party in exercising
any right, power or remedy hereunder shall not be deemed to be a waiver thereof,
and any single or partial exercise by Purchaser of any right, power or remedy
hereunder shall not preclude the further exercise thereof. Every right, power
and remedy of Purchaser shall continue in full force and effect until
specifically waived by Purchaser in writing. No right, power or remedy shall be
exclusive, and each such right, power or remedy shall be cumulative and in
addition to any other right, power or remedy, whether conferred hereby or
hereafter available at law or in equity or by statute or otherwise.
Section 14. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
Section 15. Effect of Invalidity of Provisions. In case any one
or more of the provisions contained in this Agreement should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 16. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflict of laws rules.
-22-
25
Section 17. Notices. Any notices, consents, elections, directions
and other communications given under this Agreement shall be in writing and
shall be deemed to have been duly given when telecopied or delivered by
overnight courier, personally delivered, or on the third day following the
placing thereof in the mail, first class postage prepaid, to the respective
addresses set forth on the cover page hereof for Seller and Purchaser, or to
such other address as either party shall give notice to the other party pursuant
to this Section 17. Notices to any Assignee shall be given to such address as
Assignee shall provide to Seller in writing.
Section 18. Entire Agreement. This Agreement and the Custodial
Agreement contain the entire agreement between the parties hereto with respect
to the subject matter hereof, and supersede all prior and contemporaneous
agreements between them, oral or written, of any nature whatsoever with respect
to the subject matter hereof.
Section 19. Costs of Enforcement. In addition to any other
indemnity specified in this Agreement, in the event of a breach by Seller of
this Agreement, the Custodial Agreement or a Takeout Commitment, Seller agrees
to pay the reasonable attorneys' fees and expenses of Purchaser and/or Assignee
incurred as a consequence of such breach.
Section 20. Consent to Service. Each party irrevocably consents
to the service of process by registered or certified mail, postage prepaid, to
it at its address given in or pursuant to Section 17.
Section 21. Submission to Jurisdiction. With respect to any claim
arising out of this Agreement each party (a) irrevocably submits to the
nonexclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New York City, and
(b) irrevocably waives (i) any objection which it may have at any time to the
laying of venue of any suit, action or proceeding arising out of or relating
hereto brought in any such court, (ii) any claim that any such suit, action or
proceeding brought in any such court has been brought in any inconvenient forum
and (iii) the right to object, with respect to such claim, suit, action or
proceeding brought in any such court, that such court does not have jurisdiction
over such party.
Section 22. Jurisdiction Not Exclusive. Nothing herein will be
deemed to preclude either party hereto from bringing an action or proceeding in
respect of this Agreement in any jurisdiction other than as set forth in Section
21.
Section 23. Construction. The headings in this Agreement are for
convenience only and are not intended to influence its construction. References
to Sections, Exhibits and Annexes in this Agreement are to the Sections of and
Exhibits to this Agreement. The Exhibits are part of this Agreement, and are
incorporated herein by reference. The singular includes the plural, the plural
the singular, and the words "and" and "or" are used in the conjunctive or
disjunctive as the sense and circumstances may require.
-23-
26
IN WITNESS WHEREOF, Purchaser and Seller have duly executed this
Agreement as of the date and year set forth on the cover page hereof.
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
By:
----------------------------------------------
Name:
Title:
-------------------------------------------------
By:
----------------------------------------------
Name:
Title:
Address (if different from cover page):
-24-
27
EXHIBIT A
THIS TRUST RECEIPT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS
TRUST RECEIPT OR ANY INTEREST HEREIN WITHOUT REGISTRATION HEREOF
UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT.
TRUST RECEIPT
RESIDENTIAL MORTGAGE LOANS
No.________ Date:________
______ , as custodian (the "Custodian"), certifies that GREENWICH CAPITAL
FINANCIAL PRODUCTS, INC. ("Purchaser") is the registered owner of this Trust
Receipt evidencing ownership of certain mortgage loans (the "Mortgage Loans")
listed by identifying number on the schedule attached to this Trust Receipt and
further identified in the books and records of the Custodian, owned of record
and serviced by __________ (the "Seller"). The Mortgage Note and Mortgage for
each Mortgage Loan are held by Custodian, pursuant to the terms and conditions
of that certain Custodial Agreement dated as of ______ , 199_ (the "Agreement")
among Purchaser, Seller and Custodian. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Trust Receipt is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the holder of this Trust Receipt
by virtue of the acceptance hereof assents and by which such holder is bound.
This Trust Receipt supersedes any Trust Receipt applying to the same
transaction type (i.e., Cash Window Transaction or Conduit Transaction) bearing
an earlier date.
This Trust Receipt shall not be valid or become obligatory for any purpose
unless and until the Certificate of Authentication appearing below has been duly
executed by the Custodian.
28
IN WITNESS WHEREOF, the Custodian has caused this Trust Receipt to be duly
executed under its official seal.
-----------------------------,
as Custodian
By:
--------------------------
Authorized Officer
(Seal)
Attest:
By:
---------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This Trust Receipt is one of
the Trust Receipts issued under
the above-described Agreement.
Dated:
By:
-----------------------------
Authorized Officer
29
TRUST RECEIPT NO.
RESIDENTIAL MORTGAGE LOANS
Following are the identifying numbers of the Mortgage Loans subject to this
Trust Receipt:
30
EXHIBIT B-1
[WAREHOUSE LENDER'S RELEASE]
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
We hereby release all right, interest or claim of any kind,
including any security interest or lien, with respect to the mortgage loan(s)
referenced below, such release to be effective automatically without any further
action by any party, upon receipt, in one or more installments, from Greenwich
Capital Financial Products, Inc., in accordance with the wire instructions which
we delivered to you in a letter dated , 199-, in immediately available funds, of
an aggregate amount equal to the product of A multiplied by B (such product
being rounded to the nearest $0.01) multiplied by X.*
Xxxxxx
Xxxx # Xxxxxxxxx Xxxxxxx Xxxx Xxxxx Zip
Very truly yours,
[WAREHOUSE LENDER]
By:
------------------------
Name:
---------------------
Title:
---------------------
*A = weighted average trade price
B = principal amount of the mortgage loan(s)
C = 1 minus the discount set forth on the related
participation certificate
31
EXHIBIT B-2
[WAREHOUSE LENDER'S WIRE INSTRUCTIONS]
Greenwich Capital Financial
Products, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Re: Greenwich Capital Financial Products, Inc. Mortgage Loan
Purchase Program with [Seller]
Ladies and Gentlemen:
Set forth below are [Warehouse Lender's] wire instructions
applicable to the above-referenced Non-Conforming Purchase Program.
Wire Instructions:
Bank Name:
City, State:
ABA #:
Account #:
Account Name:
32
Please acknowledge receipt of this letter in the space provided
below. This letter supersedes and replaces any prior notice specifying the name
of [Warehouse Lender] and setting forth wire instructions and shall remain in
effect until superseded and replaced by a letter, in the form of this letter,
executed by each of us and acknowledged by you.
Very truly yours,
[SELLER]
By:
------------------------------------
Name:
Title:
[WAREHOUSE LENDER(S)]*
By:
------------------------------------
Name:
Title:
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
By:__________________________
Name:________________________
Title:_______________________
-----------------------
* The authorized officer of each warehouse lender executing this letter must be
the same authorized officer as signs the Exhibit B-1 Letter. Not applicable
if there is no warehouse lender.
33
EXHIBIT C-1
[SELLER'S RELEASE]
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
With respect to the mortgage loan(s) referenced below (a) we
hereby certify to you that the mortgage loan(s) is not subject to a lien of any
warehouse lender and (b) we hereby release all right, interest or claim of any
kind with respect to such mortgage loan, such release to be effective
automatically without any further action by any party upon payment from
Purchaser to Seller of an aggregate amount equal to the product of A multiplied
by B (such product being rounded to the nearest $0.01) multiplied by C* in
accordance with our wire instructions in effect on the date of such payment.
Street
Loan # Mortgagor Address City State Zip
Very truly yours,
[SELLER]
By:
------------------------
Name:
---------------------
Title:
---------------------
**Confirmed by:
[WAREHOUSE LENDER]
By:
---------------------------
Name:
Title:
*A = weighted average trade price
B = principal amount of the mortgage loan(s)
C = 1 minus the discount set forth on the related participation certificate
** If applicable.
34
EXHIBIT C-2
[SELLER'S WIRE INSTRUCTIONS]
Greenwich Capital Financial
Products, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Re: Custodial Agreement dated as of ________________, 199_,
among Greenwich Capital Financial Products, Inc.
[Seller] and [Custodian]______________________________
Ladies and Gentlemen:
Capitalized terms used herein and not defined herein shall have
the meanings ascribed to such terms in the above-referenced Custodial Agreement.
Set forth below are Seller's Wire Instructions applicable to the
above-referenced Custodial Agreement.
Wire Instructions:
Bank Name:
City, State:
ABA #:
Account #:
Account Name:
Please acknowledge receipt of this letter in the space provided
below. This letter supersedes and replaces any prior notice specifying the name
of Seller and Seller's Wire Instructions and shall remain in effect until
superseded and
35
replaced by a letter, in the form of this letter, executed by each of us and
acknowledged by you.
Very truly yours,
[SELLER]*
By:
------------------------
Name:
---------------------
Title:
---------------------
Receipt acknowledged by:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
------------------------------
Name:
Title:
-----------
* The authorized officer executing this letter must be the same authorized
officer as signs the Exhibit C-1 Letter. Applicable only if there is no
Warehouse Lender.
36
EXHIBIT D-1
[TRADE ASSIGNMENT]
___________ ("Takeout Investor")
[Address]
Attention:
Ladies and Gentlemen:
Attached hereto is a correct and complete copy of your
confirmation of commitment (the "Commitment"), trade-dated ______ _, 19 , to
purchase $ of mortgage loans (the "Mortgage Loans") at a purchase price of .
This is to confirm that (i) the Commitment is in full force and effect, (ii) the
Commitment is hereby assigned to Greenwich Capital Financial Products, Inc.
("GCFP"), (iii) you will accept delivery of such Mortgage Loans directly from
GCFP, (iv) you will pay GCFP for such Mortgage Loans, (v) upon GCFP's acceptance
of this assignment, GCFP is obligated to make delivery of such Mortgage Loans to
you in accordance with the attached Commitment and (vi) upon GCFP's acceptance
of this assignment, you will release Seller from its obligation to deliver the
Mortgage Loans to you under the Commitment. Upon GCFP's determination not to
accept an assignment, GCFP will notify you that this assignment is rejected. Not
later than 2:00 P.M. Eastern Standard Time one business day prior to your
satisfaction of the Commitment, you shall fax a purchase confirmation to GCFP at
(000) 000-0000, Attention:__________. Payment will be made to GCFP in
immediately available funds.
Very truly yours,
[SELLER]
By:
------------------------
Name:
---------------------
Title:
---------------------
Agreed to, confirmed and accepted:
[TAKEOUT INVESTOR]
By:
------------------------------
Name:
Title:
37
EXHIBIT D-2
[ACKNOWLEDGEMENT OF ASSIGNMENT]
Date:
___________ ("Takeout Investor")
[Address]
Attention:
Ladies and Gentlemen:
As you are aware, from time to time mortgage loans, which are
currently subject to a purchase commitment issued by you to us, are delivered to
you under bailment. Please acknowledge that notwithstanding anything to the
contrary contained in any agreement between us, we may assign to Greenwich
Capital Financial Products, Inc. our rights to sell such mortgage loans to you
and our right to receive payment from you on account of such mortgage loans as
set forth in the purchase commitment.
Nothing herein shall release us from any and all obligations to
you under any agreements between us.
Very truly yours,
[SELLER]
By:
------------------------
Name:
---------------------
Title:
---------------------
Agreed to, confirmed and accepted:
[TAKEOUT INVESTOR]
By:
------------------------------
Name:
Title:
38
EXHIBIT 1 to EXHIBIT D-2
[WITHDRAWAL OF CONSENT TO BLANKET TRADE ASSIGNMENT]
[Seller]
[Address]
Ladies and Gentlemen:
The undersigned hereby terminates its agreement to Seller's assignment of
Commitments to GCFP, which approval was given pursuant to the Trade Assignment
dated . This termination shall be effective as of but shall not affect the
assignment of any Commitment which assignment was made prior to the date hereof.
Capitalized terms not defined herein shall have the meanings set forth in the
Trade Assignment.
Very truly yours,
[TAKEOUT INVESTOR]
By:
------------------------
Name:
---------------------
Title:
---------------------
Copy to: [Purchaser]
39
EXHIBIT E
[PURCHASER'S WIRE INSTRUCTIONS]
[Takeout Investor]
[Address]
Re: Custodial Agreement dated as of , 199_, among
Greenwich Capital Financial Products, Inc.,
[Seller] and [Custodian]_______________________
Ladies and Gentlemen:
Capitalized terms used herein and not defined herein shall have
the meanings ascribed to such terms in the above-referenced Custodial Agreement.
Set forth below are the Purchaser's Wire Instructions applicable
to the above-referenced Custodial Agreement.
Wire Instructions:
Bank Name:
City, State:
ABA #:
Account #:
Account Name:
Please acknowledge receipt of this letter in the space provided
below. This letter supersedes and replaces any prior notice specifying the name
of Purchaser and the Purchaser's Wire Instructions and shall remain in effect
until superseded and replaced by a letter, in the form of this letter, executed
by each of us and acknowledged by you.
Very truly yours,
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
------------------------
Name:
---------------------
Title:
---------------------
Receipt acknowledged by:
[TAKEOUT INVESTOR]
By:
---------------------------
Name:
Title:
cc: [Seller]
40
[Custodian]
41
EXHIBIT F
[FORM OF CONFIRMATION]
TO: [NAME AND ADDRESS OF SELLER]
DATE:
RE: Confirmation of Purchase of Mortgage Loans
Greenwich Capital Financial Products, Inc. ("Purchaser") is pleased to
confirm its agreement to purchase and your agreement to sell the Mortgage Loans
relating to the pool number referred to herein, pursuant to the Mortgage Loan
Purchase and Sale Agreement, dated as of , 199 (the "Mortgage Loan Purchase and
Sale Agreement"), between Purchaser and Seller, under the following terms and
conditions:
Pool No.__________________
Check as appropriate:
Cash Window Transaction
___Conduit Transaction (Conduit:____) Purchase Date__________
Settlement Date_________________________
Discount________________________________
Purchase Price__________________________
Pass-Through Rate_______________________
Total Principal Amount of the Pool______
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed in the Mortgage Loan Purchase and Sale Agreement.
Very truly yours,
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
------------------------
Name:
---------------------
Title:
---------------------
42
EXHIBIT G
[NOTICE OF REJECTION OF TRADE ASSIGNMENT]
("Takeout Investor") [Address]
Attention:
Ladies and Gentlemen:
Greenwich Capital Financial Products, Inc. ("GCFP") hereby
notifies you that it does not intend to purchase a 100% ownership interest in $
in mortgage loans (the "Mortgage Loans") that you committed to purchase from the
[Seller] pursuant to your confirmation of commitment (the "Commitment")
trade-dated , 19 a copy of which is attached hereto. Accordingly, the assignment
of the Commitment by Seller to GCFP is hereby rejected, and GCFP shall have no
obligations thereunder.
Very truly yours,
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
------------------------
Name:
---------------------
Title:
---------------------
cc: [Seller]
[Custodian]
43
EXHIBIT H
[SETTLEMENT MODIFICATION LETTER]
Greenwich Capital Financial Products, Inc. [DATE]
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention:_________
[SELLER]
[ADDRESS]
Re: The Attached Confirmation of Commitment
Ladies and Gentlemen:
Attached hereto is a correct and complete copy of our
confirmation of commitment ("Commitment"). We hereby confirm that we have
irrevocably approved the Mortgage Loans subject to the Commitment for purchase
by us and we hereby agree to purchase such Mortgage Loan(s) from Greenwich
Capital Financial Products, Inc. ("GCFP") in accordance with the terms of the
Commitment or, if this letter is executed by GCFP and [SELLER], in accordance
with the terms of the Commitment as amended hereby.
We hereby request that the Commitment be amended as follows:
(i) the Settlement Date set forth in the Commitment shall be ;
(ii)the aggregate outstanding principal balance of the Mortgage
Loans shall be $ _________________ ;
(iii) the aggregate amount of accrued interest on the Mortgage
Loans shall be $ ;
(iv) the trade price shall be %; and
(v) the total amount payable to GCFP shall be $
If we fail to pay you the amount set forth in clause (v) above on the amended
Settlement Date, interest shall accrue on such amount at a rate equal to the
weighted average of the Pass-Through Rates related to such Mortgage Loans.
44
If the amendments to the Commitment set forth above are acceptable to you,
please so indicate by executing this letter in the appropriate space provided
below and return it to us via facsimile at
[TAKEOUT INVESTOR]
By:
-------------------------
Title:
Agreed to:
[SELLER]
By:
---------------------
Title:
Facsimile #:.
Agreed to:
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
By:
---------------------
Title:
------------------
45
EXHIBIT I
(Mortgage File)
I (i) The original Mortgage Note bearing all intervening
endorsements with the last endorsement endorsed, "Pay to the order of ,
without recourse" and signed in the name of Seller by an authorized
officer of Seller; (if applicable), and if the Mortgage Note has been
signed by a third party on behalf of the Mortgagor, the original power
of attorney or other instrument that authorized and empowered such
Entity to sign or a copy of such power of attorney together with an
officer's certificate (or a certificate from the recorder's office)
certifying that such copy presents a true and correct reproduction of
the original and that such original has been duly recorded or delivered
for recordation in the appropriate records of the jurisdiction in which
the related Mortgaged Property is located;
(ii) The original of the guarantee executed in connection with
the Mortgage Note (if any);
(iii) The original Mortgage with evidence of recording indicated
thereon, subject to paragraph II below;
(iv) If Seller did not originate a Mortgage Loan, all necessary
original intervening assignments to show a complete chain of title from
the originating mortgagee to Seller;
(v) An original Assignment of Mortgage, in blank, in recordable
form but unrecorded (which Assignment of Mortgage may be in the form of
a blanket assignment of two or more such Mortgages to the extent
permitted by applicable law) signed in the name of Seller by an
authorized officer;
(vi) Any assumption, modification (with evidence of recording
thereon), consolidation or extension agreements;
(vii) The original policy of title insurance (or a commitment for
title insurance, if the policy is being held by the title insurance
company pending recordation of the Mortgage);
(viii) The original of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage Loan;
(ix) The original assignment of leases and rents, if any, with
evidence of recording thereon, or a copy thereof together with an
officer's certificate of the Seller certifying that such copy represents
a true and correct copy of the original that has been submitted for
recordation in the appropriate governmental recording office of the
jurisdiction where the Mortgaged Property is located;
(x) The original assignment of assignment of leases and rents, if
any, from the Seller in blank, in form and substance acceptable for
recording; and
(xi) The certificate of primary mortgage guaranty insurance, if
any, issued with repsect to such Mortgage Loan.
46
II With respect to all Mortgage Files
From time to time, the Seller shall forward to the Custodian
additional original documents or additional documents evidencing any
assumption, modification, consolidation or extension of a Mortgage Loan
approved by the Seller, in accordance with the terms of the Purchase and
Sale Agreement, and upon receipt of any such other documents, the
Custodian shall hold such other documents for the Purchaser.
With respect to any documents which have been delivered or are
being delivered to recording offices for recording and have not been
returned to the Borrower in time to permit their delivery hereunder at
the time required, in lieu of delivering such original documents, Seller
shall deliver to Purchaser a true copy thereof with an Officer's
Certificate certifying that such copy is a true, correct and complete
copy of the original, which has been transmitted for recordation. The
Seller shall deliver such original documents to Custodian promptly when
they are received.
