EXECUTION
GREENWICH CAPITAL ACCEPTANCE, INC.,
as Purchaser
and
XXXXXXXXX MORTGAGE HOME LOANS, INC.,
as Seller
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of October 1, 2001
Adjustable-Rate Mortgage Loans
Xxxxxxxxx Mortgage Securities Trust 2001-1
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS AND SCHEDULES...........................................1
Section 1.01. Definitions............................................1
ARTICLE II. SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE..................1
Section 2.01. Sale of Mortgage Loans.................................1
Section 2.02. Obligations of the Seller Upon Sale....................2
Section 2.03. Payment of Purchase Price for the Mortgage Loans.......3
ARTICLE III. REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH...............3
Section 3.01 Seller Representations and Warranties Relating to
the Mortgage Loans.....................................3
Section 3.02. Seller's Representations and Warranties................3
Section 3.03 Remedies for Breach of Representations and Warranties..5
ARTICLE IV. SELLER'S COVENANTS ................................................5
Section 4.01. Covenants of the Seller................................5
ARTICLE V. INDEMNIFICATION ....................................................5
Section 5.01. Indemnification........................................5
ARTICLE VI. TERMINATION .......................................................9
Section 6.01. Termination............................................9
ARTICLE VII. MISCELLANEOUS PROVISIONS..........................................9
Section 7.01. Amendment..............................................9
Section 7.02. Governing Law..........................................9
Section 7.03. Notices................................................9
Section 7.04. Severability of Provisions.............................9
Section 7.05. Counterparts..........................................10
Section 7.06. Further Agreements....................................10
Section 7.07. Intention of the Parties..............................10
Section 7.08. Successors and Assigns: Assignment of
Purchase Agreement....................................10
Section 7.09. Survival..............................................11
Schedule I: Mortgage Loan Schedule........................................I-1
Schedule II: [Reserved]...................................................II-1
Schedule III: Seller's Representations and Warranties Relating to
Mortgage Loans............................................III-A-1
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THIS MORTGAGE LOAN PURCHASE AGREEMENT, dated as of October 1, 2001 (the
"AGREEMENT"), is made and entered into between Xxxxxxxxx Mortgage Home Loans,
Inc. (the "SELLER") and Greenwich Capital Acceptance, Inc. (the "PURCHASER").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the notes or other evidence of
indebtedness (the "MORTGAGE NOTES") so indicated on Schedule I hereto referred
to below, and the other documents or instruments constituting the Mortgage File
(collectively, the "MORTGAGE LOANS"); and
WHEREAS, the Seller, as of the date hereof, owns the mortgages or deeds
of trust (the "MORTGAGES") on the properties (the "MORTGAGED PROPERTIES")
securing such Mortgage Loans, including rights to (a) any property acquired by
foreclosure or deed in lieu of foreclosure or otherwise and (b) the proceeds of
any insurance policies covering the Mortgage Loans or the Mortgaged Properties
or the obligors on the Mortgage Loans; and
WHEREAS, the parties hereto desire that the Seller sell the Mortgage
Loans, including the Mortgages, to the Purchaser pursuant to the terms of this
Agreement; and
WHEREAS, pursuant to the terms of that certain Pooling and Servicing
Agreement dated as of October 1, 2001 (the "POOLING AND SERVICING AGREEMENT")
among the Purchaser, as depositor, the Seller, as seller, Washington Mutual
Mortgage Securities Corp., as master servicer, The Murrayhill Company, as loss
mitigation advisor (the "LOSS MITIGATION ADVISOR"), Bankers Trust (Delaware), as
co-trustee and Bankers Trust Company of California, N.A., as trustee (in such
capacity, the "TRUSTEE"), the Purchaser will convey the Mortgage Loans to
Xxxxxxxxx Mortgage Securities Trust 2001-1 (the "TRUST").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS AND SCHEDULES
Section 1.01. Definitions. Any capitalized term used but not defined
herein and below shall have the meaning assigned thereto in the Pooling and
Servicing Agreement or the related Prospectus Supplement dated October 29, 2001
(the "PROSPECTUS SUPPLEMENT").
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01. Sale of Mortgage Loans. The Seller, concurrently with the
execution and delivery of this Agreement, does hereby sell, assign, set over,
and otherwise convey to the
Purchaser, without recourse, all of its right, title and interest in, to and
under (i) each Mortgage Loan, including the related Cut-Off Date Principal
Balance, all interest due thereon after the Cut-Off Date and all collections in
respect of interest and principal due after the Cut-Off Date (and all principal
received before the Cut-Off Date to the extent such principal relates to a
Monthly Payment due after the Cut-Off Date); (ii) property which secured such
Mortgage Loan and which has been acquired by foreclosure or deed in lieu of
foreclosure; (iii) its interest in any insurance policies in respect of the
Mortgage Loans; (iv) any Additional Collateral with respect to the Mortgage
Loans; and (v) all proceeds of any of the foregoing.
Section 2.02. Obligations of the Seller Upon Sale. In connection with
the transfer pursuant to Section 2.01 hereof, the Seller further agrees, at its
own expense, on or prior to the Closing Date, (a) to indicate in its books and
records that the Mortgage Loans have been sold to the Purchaser pursuant to this
Agreement and (b) to deliver to the Purchaser and the Trustee a computer file
containing a true and complete list of all such Mortgage Loans specifying for
each such Mortgage Loan, as of the Cut-Off Date, (i) its account number and (ii)
the Cut-Off Date Principal Balance and such file, which forms a part of Schedule
A to the Pooling and Servicing Agreement, shall also be marked as Schedule I to
this Agreement and is hereby incorporated into and made a part of this
Agreement.
In connection with such conveyance by the Seller, the Seller shall on
behalf of the Purchaser deliver to, and deposit with the Trustee, as assignee of
the Purchaser, on or before the Closing Date, the documents described in Section
2.01 of the Pooling and Servicing Agreement.
The Seller hereby confirms to the Purchaser and the Trustee that it has
made the appropriate entries in its general accounting records, to indicate that
the Mortgage Loans have been transferred to the Trustee, or a custodian
appointed pursuant to the Pooling and Servicing Agreement to act on behalf of
the Trustee, and that the Mortgage Loans constitute part of the Trust in
accordance with the terms of the Pooling and Servicing Agreement.
The Purchaser hereby acknowledges its acceptance of all right, title
and interest in, to and under the Mortgage Loans and other property, now
existing or hereafter created, conveyed to it pursuant to Section 2.01 hereof.
The parties hereto intend that the transaction set forth herein be a
non-recourse sale by the Seller to the Purchaser of all of the Seller's right,
title and interest in, to and under the Mortgage Loans and other property
described in Section 2.01. Nonetheless, in the event the transaction set forth
herein is deemed not to be a sale, the Seller hereby grants to the Purchaser a
security interest in all of the Seller's right, title and interest in, to and
under the Mortgage Loans and other property described in Section 2.01, whether
now existing or hereafter created, to secure all of the Seller's obligations
hereunder; and this Agreement shall constitute a security agreement under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of the Pooling and Servicing Agreement.
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Section 2.03. Payment of Purchase Price for the Mortgage Loans. In
consideration of the sale of the Mortgage Loans from the Seller to the Purchaser
on the Closing Date, the Purchaser agrees to pay to the Seller on the Closing
Date by transfer of immediately available funds, an amount equal to $516,915,349
and will also transfer the Class LTA-R Certificate to the Seller or its designee
(the "PURCHASE PRICE"). The Seller shall pay, and be billed directly for, the
amounts set forth in the Xxxxxxxxx Securitization Engagement Letter dated
October 18, 2001 including all reasonable expenses incurred by the Purchaser in
connection with the issuance of the Certificates, including, without limitation,
printing fees incurred in connection with the prospectus relating to the
Certificates, fees and expenses of Purchaser's counsel, fees of the rating
agencies requested to rate the Certificates, accountant's fees and expenses and
the fees and expenses of the Trustee and other out-of-pocket costs, if any.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01. Seller Representations and Warranties Relating to the
Mortgage Loans. The Seller hereby makes the representations and warranties set
forth in Schedule III hereto applicable to the Mortgage Loans and by this
reference incorporated herein, to the Depositor and the Trustee, as of the
Closing Date or, if applicable, such other date as may be specified therein.
Section 3.02. Seller's Representations and Warranties. The Seller
represents, warrants and covenants to the Purchaser as of the Closing Date or as
of such other date specifically provided herein:
(i) the Seller is duly organized, validly existing and in good
standing as a corporation under the laws of the State of Delaware and is and
will remain in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to fulfill its obligations
hereunder;
(ii) the Seller has the power and authority to hold each Mortgage
Loan, to sell each Mortgage Loan, to execute, deliver and perform, and to enter
into and consummate, all transactions contemplated by this Agreement. The Seller
has duly authorized the execution, delivery and performance of this Agreement,
has duly executed and delivered this Agreement and this Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization or other similar laws in relation to
the rights of creditors generally;
(iii) the execution and delivery of this Agreement by the Seller
and the performance of and compliance with the terms of this Agreement will not
violate the Seller's articles of incorporation or by-laws or constitute a
default under or result in a material breach or acceleration of, any material
contract, agreement or other instrument to which the Seller is a party or which
may be applicable to the Seller or its assets;
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(iv) the Seller is not in violation of, and the execution and
delivery of this Agreement by the Seller and its performance and compliance with
the terms of this Agreement will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction over the Seller or its
assets, which violation might have consequences that would materially and
adversely affect the condition (financial or otherwise) or the operation of the
Seller or its assets or might have consequences that would materially and
adversely affect the performance of its obligations and duties hereunder;
(v) the Seller does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained in
this Agreement;
(vi) the Seller has good, marketable and indefeasible title to the
Mortgage Loans, free and clear of any and all liens, pledges, charges or
security interests of any nature encumbering the Mortgage Loans and upon the
payment of the Purchase Price by the Purchaser, the Purchaser will have good and
marketable title to the Mortgage Notes and Mortgage Loans, free and clear of all
liens or encumbrances;
(vii) the Mortgage Loans are not being transferred by the Seller
with any intent to hinder, delay or defraud any creditors of the Seller;
(viii) there are no actions or proceedings against, or
investigations known to it of, the Seller before any court, administrative or
other tribunal (A) that might prohibit its entering into this Agreement, (B)
seeking to prevent the sale of the Mortgage Loans or the consummation of the
transactions contemplated by this Agreement or (C) that might prohibit or
materially and adversely affect the performance by the Seller of its obligations
under, or validity or enforceability of, this Agreement;
(ix) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this Agreement
or the consummation of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations or orders, if any, that have been
obtained; and
(x) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by
the Seller pursuant to this Agreement are not subject to the bulk transfer or
any similar statutory provisions.
(b) On the Closing Date, the Seller shall deliver to the Purchaser a
certificate of an authorized officer of the Seller to the effect that, as of the
Settlement Date:
(i) the information set forth in the Prospectus Supplement, as it
relates to the Seller Information (as defined herein) does not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein, in light of the circumstances under
which they were made, not misleading;
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(ii) the information set forth in the Private Placement
Memorandum, as it relates to the second and third paragraph of the first page of
the Private Placement Memorandum, does not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
Section 3.03. Remedies for Breach of Representations and Warranties. It
is understood and agreed that (i) the representations and warranties set forth
in Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to the
Purchaser and shall inure to the benefit of the Purchaser and the Trustee,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment or the examination or lack of examination of any Mortgage File and
(ii) the remedies for the breach of such representations and warranties and for
the failure to deliver the documents referred to in Section 2.02 hereof shall be
as set forth in Section 2.03 of the Pooling and Servicing Agreement.
It is understood and agreed that the representations and warranties set
forth in Section 3.01 hereof shall survive delivery of the respective Mortgage
Files to the Trustee on behalf of the Purchaser.
ARTICLE IV
SELLER'S COVENANTS
Section 4.01. Covenants of the Seller. The Seller hereby covenants
that, except for the transfer hereunder, it will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on any Mortgage Loan, or any interest therein; it will notify the
Trustee, as assignee of the Purchaser, of the existence of any Lien on any
Mortgage Loan immediately upon discovery thereof; and it will defend the right,
title and interest of the Trust, as assignee of the Purchaser, in, to and under
the Mortgage Loans, against all claims of third parties claiming through or
under the Seller; provided, however, that nothing in this Section 4.01 shall
prevent or be deemed to prohibit the Seller from suffering to exist upon any of
the Mortgage Loans any Liens for municipal or other local taxes and other
governmental charges if such taxes or governmental charges shall not at the time
be due and payable or if the Seller shall currently be contesting the validity
thereof in good faith by appropriate proceedings and shall have set aside on its
books adequate reserves with respect thereto.
ARTICLE V
INDEMNIFICATION
Section 5.01. Indemnification. (a) The Seller agrees to indemnify and
hold harmless the Purchaser, each of its directors, each of its officers and
each person or entity who controls the Purchaser or any such person, within the
meaning of Section 15 of the Securities Act of 1933, as amended (the "1933
ACT"), against any losses, claims, damages or liabilities to which the
Purchaser, or any such person or entity may become subject, under the Securities
Act or otherwise, to the extent that such losses, claims, damages or
liabilities, insofar as such losses,
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claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Prospectus Supplement or any amendment or supplement
thereto or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, but only to the extent (i) that such untrue statement
or alleged untrue statement or omission or alleged omission in the Prospectus
Supplement relates to the information set forth in the Seller Information or
that such omission or alleged omission in the Prospectus Supplement relates to
information set forth in "The Master Servicer -- Washington Mutual Mortgage
Securities Corp." (except for the first paragraph thereof) (the "WAMU
Information"), (ii) any untrue statement or alleged untrue statement of any
material fact contained in the information on any computer tape furnished to the
Purchaser or any affiliate thereof by or on behalf of the Seller containing
information regarding the assets of the Trust, or (iii) any untrue statement or
alleged untrue statement of any material fact contained in any information
provided by the Seller to the Purchaser or any affiliate thereof, or any
material omission in the information purported to be provided thereby and
disseminated to the Rating Agency, Deloitte & Touche LLP or prospective
investors (directly or indirectly through available information systems) in
connection with the issuance, marketing or offering of the Certificates. This
indemnity provision will be in addition to any liability which the Seller may
otherwise have.
(b) The Purchaser agrees to indemnify and hold harmless the Seller,
each of its officers, directors and each person or entity who controls the
Seller, within the meaning of the 1933 Act, against any losses, claims, damages
or liabilities to which the Seller, or any such person or entity may become
subject, under the 1933 Act or otherwise to the extent that such losses, claims,
damages or liabilities insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus Supplement or any amendment or supplement thereto, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
but only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission does not relate to the Seller Information or the
WAMU Information in the Prospectus Supplement. For the purposes hereof, "SELLER
INFORMATION" means the information in the Prospectus Supplement as follows: in
the first and second sentences of the first bullet point, the first sentence of
the second bullet point, and the first and second sentences of the third bullet
point under the heading "RISK FACTORS--Certain features of the mortgage loans
may adversely affect your interest in the certificates", the first and second
sentences under the heading "Risk Factors--Conversion of the mortgage loans may
reduce the yields on the certificates", the first sentence under the heading
"RISK FACTORS--Geographic concentration of the mortgage loans may adversely
affect your certificates", and under the headings "THE MORTGAGE LOANS" and "THE
SELLER. This indemnity provision will be in addition to any liability which the
Purchaser may otherwise have.
(c) Promptly after receipt by any indemnified party under this Article
V of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Article V, notify the
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indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have under this
Article V, except to the extent it has been materially prejudiced by such
failure and, provided further, that the failure to notify any indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under this Article V.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Article V for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised in writing by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel, or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties under
this Article V consist of the Purchaser, or by the Seller, if the indemnified
parties under this Article V consist of the Seller.
Each indemnified party, as a condition of the indemnity provisions
contained in Section 5.01(a) and (b) hereof, shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to consent to a settlement of any action, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its
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written consent if such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and the indemnifying
party has not previously provided the indemnified party with written notice of
its objection to such settlement. No indemnifying party shall effect any
settlement of any pending or threatened proceeding in respect of which an
indemnified party is or could have been a party and indemnity is or could have
been sought hereunder, without the written consent of such indemnified party,
unless settlement includes an unconditional release of such indemnified party
from all liability and claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Article V
are for any reason held to be unenforceable although applicable in accordance
with its terms, the Seller, on the one hand, and the Purchaser, on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity provision incurred by the
Seller and the Purchaser in such proportions as shall be appropriate to reflect
the relative benefits received by the Seller on the one hand and the Purchaser
on the other from the sale of the Certificates such that the Purchaser is
responsible for the 0.0625% of the aggregate proceeds to the Seller from the
sale of the Certificates and the Seller shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 5.01, each officer and director of the Purchaser and
each person, if any, who controls the Purchaser within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as the Purchaser,
each director and officer of the Seller and each person, if any, who controls
the Seller within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Seller.
(e) The Seller agrees to indemnify and to hold each of the Purchaser,
the Trustee, each of the officers and directors of each such entity and each
person or entity who controls each such entity or person harmless against any
and all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments, and any other costs, fees and expenses that the Purchaser, the
Trustee, or any such person or entity may sustain in any way related to the
failure of the Seller to perform its duties in compliance with the terms of this
Agreement. The Seller shall immediately notify the Purchaser and the Trustee if
a claim is made under this provision. The Seller shall assume the defense of any
such claim and pay all expenses in connection therewith, including reasonable
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against the Purchaser, the Trustee or any such person or
entity in respect of such claim.
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ARTICLE VI.
TERMINATION
Section 6.01. Termination. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate,
except for the respective indemnity obligations as provided herein, upon the
termination of the Trust as provided in Article X of the Pooling and Servicing
Agreement.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment. This Agreement may be amended from time to
time by the Seller and the Purchaser by written agreement signed by the parties
hereto.
Section 7.02. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws (without regard to its material conflict of laws
rules).
Section 7.03. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, postage prepaid, addressed
as follows:
if to the Seller:
Xxxxxxxxx Mortgage Home Loans, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxx
or such other address as may hereafter be furnished to the Purchaser in writing
by the Seller.
if to the Purchaser:
Greenwich Capital Acceptance, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Legal Department
or such other address as may hereafter be furnished to Xxxxxxxxx Mortgage Home
Loans, Inc. in writing by the Purchaser.
Section 7.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions of terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable
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from the remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity of enforceability of the other
provisions of this Agreement.
Section 7.05. Counterparts. This Agreement may be executed in one or
more counterparts and by the different parties hereto on separate counterparts,
which may be transmitted by telecopier each of which, when so executed, shall be
deemed to be an original and such counterparts, together, shall constitute one
and the same agreement.
Section 7.06. Further Agreements. The parties hereto each agree to
execute and deliver to the other such additional documents, instruments or
agreements as may be necessary or reasonable and appropriate to effectuate the
purposes of this Agreement or in connection with the issuance of the
Certificates representing interests in the Trust Fund, including the Mortgage
Loans.
Without limiting the generality of the foregoing, as a further
inducement for the Purchaser to purchase the Mortgage Loans from the Seller, the
Seller will cooperate with the Purchaser in connection with the sale of the
Certificates. In that connection, the Seller will provide to the Purchaser any
and all information and appropriate verification of information, whether through
letters of its auditors and counsel or otherwise, as the Purchaser shall
reasonably request and will provide to the Purchaser such additional
representations and warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller as are
reasonably required in connection with the offering of the Certificates.
Section 7.07. Intention of the Parties. It is the intention of the
parties that the Purchaser is purchasing, and the Seller is selling, the
Mortgage Loans rather than pledging such Mortgage Loans to secure a loan by the
Purchaser to the Seller. Accordingly, the parties hereto each intend to treat
the transaction as a sale by the Seller, and a purchase by the Purchaser, of the
Mortgage Loans. The Purchaser will have the right to review the Mortgage Loans
and the related Mortgage Files to determine the characteristics of the Mortgage
Loans which will affect the Federal income tax consequences of owning the
Mortgage Loans and the Seller will cooperate with all reasonable requests made
by the Purchaser in the course of such review.
Section 7.08. Successors and Assigns: Assignment of Purchase Agreement.
This Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser and the Trustee. The obligations of the Seller under this
Agreement cannot be assigned or delegated to a third party without the consent
of the Purchaser which consent shall be at the Purchaser's sole discretion,
except that the Purchaser acknowledges and agrees that the Seller may assign its
obligations hereunder to any Person into which the Seller is merged or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party or any Person succeeding to the business of the Seller. The
parties hereto acknowledge that the Purchaser is acquiring the Mortgage Loans
for the purpose of contributing them to a trust that will issue the Certificates
representing undivided interests in such Mortgage Loans. As an inducement to the
Purchaser to purchase the Mortgage Loans, the Seller acknowledges and consents
to the assignment by the Purchaser to the Trustee of all of the Purchaser's
rights against the Seller pursuant to this Agreement insofar as such rights
relate to Mortgage Loans transferred
10
to the Trustee and to the enforcement or exercise of any right or remedy against
the Seller pursuant to this Agreement by the Trustee. Such enforcement of a
right or remedy by the Trustee shall have the same force and effect as if the
right or remedy had been enforced or exercised by the Purchaser directly.
Section 7.09. Survival. The representations and warranties set forth in
Sections 3.01 and 3.02 and the provisions of Article V hereof shall survive the
purchase of the Mortgage Loans hereunder.
11
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed to this Mortgage Loan Purchase Agreement by their respective
officers thereunto duly authorized as of the day and year first above written.
GREENWICH CAPITAL ACCEPTANCE, INC.,
as Purchaser
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
XXXXXXXXX MORTGAGE HOME LOANS, INC.
as Seller
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
STATE OF )
)ss.:
COUNTY OF )
On the 1st day of November, 2001 before me, a Notary Public in and for
said State, personally appeared _____________________, known to me to be a
____________ of GREENWICH CAPITAL ACCEPTANCE, INC., the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------
Notary Public
STATE OF )
)ss.:
COUNTY OF )
On the 1st day of November, 2001 before me, a Notary Public in and for
said State, personally appeared ______________________, known to me to be a
_______________ XXXXXXXXX MORTGAGE HOME LOANS, INC., the company that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------
Notary Public
SCHEDULE I
MORTGAGE LOAN SCHEDULE
[See Schedule I of the Pooling and Servicing Agreement]
I-1
SCHEDULE II
[RESERVED]
II-1
SCHEDULE III
SELLER'S REPRESENTATIONS AND
WARRANTIES RELATING TO
MORTGAGE LOANS
The Seller hereby represents and warrants to, and covenants with, the
Purchaser that, as to each Mortgage Loan, as of the Cut-off Date or such other
date specifically set forth herein, and with respect to representation (i)
listed below, as of the Closing Date:
(i) (a) The information set forth in the Mortgage Loan Schedule is
complete, true and correct in all material respects and (b) The Mortgage File
with respect to each Mortgage Loan has been delivered to the Trustee or its
designee and each Mortgage File contains the documents required to be contained
therein.
(ii) 1.10% of the Mortgage Loans (by Principal Balance) are more
than 30 days delinquent and no Mortgage Loan is more than 60 days delinquent and
neither the Mortgage Loans nor the Additional Collateral (if applicable) has
been dishonored; Seller has not advanced funds to, or induced, solicited or
knowingly received any advance of funds from a party other than the owner of the
Mortgaged Property subject to the Mortgage, directly or indirectly, for the
payment of any amount required by the Mortgage Loan.
(iii) To Seller's best knowledge, there are no delinquent taxes,
ground rents, water charges, sewer rents, assessments, insurance premiums,
leasehold payments, including assessments payable in future installments or
other outstanding charges affecting the related Mortgaged Property.
(iv) The terms of the Mortgage Note, the Mortgage and the
Additional Collateral (if applicable) have not been impaired, waived, altered or
modified in any respect, except by written instruments which have been recorded,
if necessary to protect the interests of the Trustee, and which are included in
the Mortgage File, the substance of which waiver, alteration or modification has
been approved by the primary mortgage guaranty insurer, if any, and by the title
insurer, to the extent required by the related policy and is reflected on the
Mortgage Loan Schedule. Except for any modification agreement or similar
document contained in the Mortgage File permitting a borrower to modify his
loan, no instrument of waiver, alteration or modification has been executed, and
no Mortgagor has been released, in whole or in part, except in connection with
an assumption agreement approved by the primary mortgage insurer, if any, and
title insurer, to the extent required by the policy, and which assumption
agreement is part of the Mortgage File.
(v) None of the Mortgage Note, the Mortgage or the Additional
Collateral (if applicable) are 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 and Mortgage, or the exercise of any
right thereunder, render the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense, including
the
III-1
defense of usury, and to the Seller's knowledge no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto.
(vi) All buildings upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are customary in the area where the Mortgaged Property
is located. All such insurance policies contain a standard mortgagee clause
naming the Master Servicer or the applicable Servicer, their successors and
assigns as mortgagee and to the Seller's knowledge all premiums thereon have
been paid. If upon origination of the Mortgage Loan, the Mortgaged Property was
in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards (and such flood insurance has
been made available) a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration is in effect which
policy conforms to the requirements of Xxxxxx Mae or Xxxxxxx Mac. The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at Mortgagor's
cost and expense, and on the Mortgagor's failure to do so, authorizes the holder
of the Mortgage to maintain such insurance at Mortgagor's cost and expense and
to seek reimbursement therefor from the Mortgagor.
(vii) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws applicable to the Mortgage Loan and the Additional Collateral Mortgage
Loans have been complied with in all material respects.
(viii) Except for six Mortgage Loans with an aggregate principal
balance of $1,881,903.19, the Mortgage has not been satisfied, canceled or
subordinated, or rescinded, in whole or in part, and the Mortgaged Property has
not been released from the lien of the Mortgage except for a release that does
not materially impair the security of the Mortgage Loan or is reflected in the
loan-to-value ratio, in whole or in part, nor has any instrument been executed
that would effect any such release, cancellation, subordination or rescission.
(ix) The Mortgage is a valid, existing and enforceable first lien
on the Mortgaged Property, including all improvements on the Mortgaged Property
subject only to (A) the lien of current real property taxes and assessments not
yet due and payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of recording
being acceptable to mortgage lending institutions generally and specifically
referred to in lender's title insurance policy delivered to the originator of
the Mortgage Loan and which do not adversely affect the Value of the Mortgaged
Property, and (C) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security intended to
be provided by the Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property. Any security agreement, chattel mortgage or
equivalent document related to and delivered in connection with the Mortgage
establishes and creates a valid, existing and enforceable first lien and first
priority security interest on the property described therein and the Seller has
full right to sell and assign the same to the Purchaser.
(x) 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
III-2
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, or reorganization or other laws relating to the rights of creditors.
(xi) All parties to the Mortgage Note and the Mortgage had legal
capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage
Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly and
properly executed by such parties.
(xii) The proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or Mortgage.
(xiii) The Seller has acquired its ownership of each Mortgage Loan
in good faith without notice of any adverse claim, and as of the Closing Date,
the Mortgage Note and the Mortgage are not assigned or pledged, and immediately
prior to the sale of the Mortgage Loan to the Purchaser, the Seller was the sole
owner and holder thereof and with full right to transfer and sell the Mortgage
Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest and with full right and authority subject to
no interest or participation of, or agreement with, any other party, to sell and
assign each Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement.
(xiv) To the Seller's best knowledge, the Seller or, if the
Mortgage Loan was not originated by the Seller, the originator is or was (or,
during the period in which they held and disposed of such interest, were) (A) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (B) either (i) organized
under the laws of such state, or (ii) qualified to do business in such state, or
(iii) federal savings and loan associations or national banks or subsidiaries
having preemptive authority under federal law or under applicable state law to
engage in business in such state without qualification, or (iv) not doing
business in such state.
(xv) The Mortgage Loan is covered by an ALTA lender's title
insurance policy acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title
insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in
the jurisdiction where the Mortgaged Property is located, insuring (subject to
the exceptions contained in (ix)(A) through (C) above) the originator or the
Seller, their respective successors and assigns as to the first priority lien of
the Mortgage in the original principal amount of the Mortgage Loan.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The Seller is the sole insured of such lender's title
insurance policy, and such lender's title insurance policy is in full force and
effect and will be in full force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made under such
lender's title insurance policy, and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which would impair
the coverage of such lender's title insurance policy.
III-3
(xvi) There is no default, breach, violation or event of
acceleration existing under the Mortgage, the Mortgage Note, or the Additional
Collateral (if applicable) 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 the Seller has not
waived any default, breach, violation or event of acceleration.
(xvii) To the best of the Seller's knowledge, there are no
mechanics' or similar liens or claims which have been filed for work, labor or
material (and no rights are outstanding that under law could give rise to such
lien) affecting the related Mortgaged Property which are or may be liens prior
to, or equal or on parity with, the lien of the related Mortgage.
(xviii) To the Seller's best knowledge, all improvements which
were considered in determining the Appraised Value of the related Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property.
(xix) The Mortgage Loan was originated by the Seller or a
subsidiary of the Seller or was purchased by the Seller from a third party, each
of which was, at the time of origination, (A) a Xxxxxx Xxx-approved or Xxxxxxx
Mac-approved seller/servicer and (B) a HUD-approved mortgage banker, or a
savings and loan association, a savings bank, a commercial bank or similar
banking institution which is supervised and examined by a federal or state
authority. Each Mortgage Note has a Loan Rate that adjusts periodically (not
always in correlation to the index calculation term), based on the One-Month
LIBOR, Six-Month LIBOR, or One-Year LIBOR, One-Year CMT, Three-Year CMT or
Five-Year CMT index except that most Mortgage Loans first adjust after an
initial period of three, five, seven or ten years following origination.
(xx) The origination practices used by the Seller or the
originator of the loan and the collection practices used by the Master Servicer
or the applicable Servicer with respect to each Mortgage Note and Mortgage have
been in all respects legal, proper, prudent and customary in the mortgage
origination and servicing business. With respect to escrow deposits and escrow
payments, if any, all such payments are in the possession of, or under the
control of, the applicable Servicer and there exist no deficiencies in
connection therewith for which customary arrangements for repayment thereof have
not been made.
(xxi) At the time of origination of the Mortgage Loan the
Mortgaged Property was free of damage and waste and there is no proceeding
pending for the total or partial condemnation thereof.
(xxii) The 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
provided thereby, including, (A) in the case of a Mortgage designated as a deed
of trust, by trustee's sale, and (B) otherwise by judicial foreclosure. There is
no 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.
III-4
(xxiii) The Mortgage Loan was underwritten generally in accordance
with the Seller's underwriting standards in effect at the time the Mortgage Loan
was originated.
(xxiv) The mortgage file in possession of the related Servicer
contains an appraisal of the related Mortgaged Property signed prior to the
approval of the Mortgage Loan application by a qualified appraiser, duly
appointed by the originator of the Mortgage Loan, who had no interest, direct or
indirect in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of the
Mortgage Loan.
(xxv) In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees or
expenses are or will become payable by the Depositor to the trustee under the
deed of trust, except, in connection with a trustee's sale after default by the
Mortgagor.
(xxvi) No Mortgage Loan (A) contains provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor or paid by any source other than the Mortgagor or (B) contains any
provision permitting a temporary "buydown" of the related Mortgage Rate. No
Mortgage Loan was a graduated payment mortgage loan as of the date of its
origination. No Mortgage Loan has a shared appreciation or other contingent
interest feature.
(xxvii) No Mortgage Loan had a Loan-To-Value Ratio in excess of
100%. Except with respect to Additional Collateral Mortgage Loans, no Mortgage
Loan has a Loan-To-Value Ratio in excess of 95%. Except with respect to
Additional Collateral Mortgage Loans, and with respect to one Mortgage Loan with
an original Loan-to-Value Ratio of 80.02%, or as otherwise disclosed and agreed
to on the Mortgage Loan Schedule, the portion of the unpaid principal balance of
each Mortgage Loan which is in excess of 80% of the Value is and will be insured
as to payment defaults under a Primary Mortgage Insurance Policy issued by
primary mortgage insurer licensed to do business in the state in which the
Mortgaged Property is located and acceptable to Xxxxxx Xxx as of the Closing
Date, so as to reduce the Mortgagee's exposure in accordance with the standards
of Xxxxxx Mae and applicable law. All provisions of such Primary Mortgage
Insurance Policy have been and are being complied with; such policy is valid and
in full force and effect and all premiums due thereunder have been paid.
(xxviii) Except for any Additional Collateral Mortgage Loans as
identified on the Mortgage Loan Schedule, the Mortgage Note is not and has not
been secured by any collateral, pledged account, or other security except the
lien of the Mortgage, and the security interest of any applicable security
agreement or chattel mortgage referred to above.
(xxix) The Additional Collateral Mortgage Loans originated by
Xxxxxx Xxxxxxx Xxxx Xxxxxx Credit Corporation are insured under the terms and
provisions of the Surety Bond. The Surety Bond is in full force and effect with
respect to each such Additional Collateral Mortgage Loan subject to the
limitations set forth therein and such Surety Bond will be enforceable by the
Purchaser with respect to each Additional Collateral Mortgage Loan.
III-5
(xxx) The Mortgaged Property is lawfully occupied under applicable
law. All inspections, licenses and certificates required to be made or issued
with respect to all occupied portions of the related Mortgaged Property and,
with respect to the use and occupancy of the same, including but not limited to
certificates of occupancy, had been made or obtained from the appropriate
authorities.
(xxxi) No defense against coverage under any Primary Mortgage
Insurance Policy (including, without limitation, any exclusions, denials or
defenses which would limit or reduce the availability of the timely payment of
the full amount of the loss otherwise due thereunder to the insured) exists
arising out of actions, representations, errors, omissions, negligence, or fraud
of the Seller, and the Seller is not aware of any fact that could reasonably
lead the Seller to believe that any such defense exists arising out of the
actions, representations, errors, omissions, negligence or fraud of the related
Mortgagor or any party involved in the application for such coverage.
(xxxii) The Assignment is in recordable form, is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged Property is
located and includes all applicable recording information, except where the
related original Mortgage has been delivered for recording to the appropriate
public recording office but has not yet been returned to the Seller.
(xxxiii) If the Mortgaged Property is a condominium unit or a
planned unit development (other than a de minimis planned unit development) such
condominium or planned unit development project meets Xxxxxx Mae or Xxxxxxx Mac
eligibility requirements.
(xxxiv) Each Mortgage is a "qualified mortgage" for purposes of
the REMIC Provisions.
(xxxv) To the Seller's best knowledge, no fraud was committed by
the originator of the Mortgage Loan and the Seller is not aware of any fact that
would reasonably lead the Seller to believe that any Mortgagor had committed
fraud in connection with the origination of such Mortgage Loan.
(xxxvi) As of the Cut-off Date, the Mortgagor has not notified the
Seller, and Seller has no knowledge of any relief requested or allowed to the
Mortgagor under the Relief Act; and
(xxxvii) The Seller has no knowledge of any toxic or hazardous
substances affecting the Mortgaged Property or any violation of any local,
state, or federal environmental law, rule, or regulation. The Seller has no
knowledge of any pending action or proceeding directly involving any Mortgaged
Property in which compliance with any environmental law, rule, or regulation is
an issue.
(xxxviii) As to any Additional Collateral Mortgage Loan, such
Mortgage Loan is secured by a perfected first priority security interest in the
related Additional Collateral.
(xxxix) As to any Additional Collateral Mortgage Loan, the
applicable pledge agreement is in place, is genuine and is the legal, valid and
binding obligation of the maker
III-6
thereof, enforceable in accordance with its terms subject to bankruptcy,
insolvency and other laws of general application affecting the rights of
creditors.
III-7
