EXHIBIT 4.4
EXECUTION COPY
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MORTGAGE LOAN PURCHASE AGREEMENT
Between
GREENPOINT MORTGAGE FUNDING, INC.,
as Seller
and
GREENPOINT MORTGAGE SECURITIES INC.,
as Purchaser
Dated as of December 1, 1999
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TABLE OF CONTENTS
Page
ARTICLE I Definitions.............................................................................................1
ARTICLE II Procedures for Purchases of Mortgage Loans; Conditions Precedent; Settlements..........................1
Section 2.01. Purchase and Sale...........................................................................1
Section 2.02. Delivery of Documents; Purchase of Initial Mortgage Loans...................................2
Section 2.03. Delivery of Documents; Purchases of Subsequent Mortgage Loans...............................2
Section 2.04. Purchase Requests...........................................................................3
Section 2.05. Survival of Representations.................................................................3
Section 2.06. Proceeds of Mortgage Loans..................................................................3
Section 2.07. Defective Mortgage Loans....................................................................3
ARTICLE III Intent of Parties; Security Interest..................................................................4
Section 3.01. Intent of Parties; Security Interest........................................................4
ARTICLE IV Representations and Warranties.........................................................................4
Section 4.01. Representations and Warranties of Seller....................................................4
Section 4.02. Representations and Warranties Regarding Mortgage Loans.....................................6
Section 4.03. Representations and Warranties of Purchaser................................................12
Section 4.04. Remedies for Breach of Representations and Warranties; Repurchase
Obligation.................................................................................13
ARTICLE V Covenants and Warranties of Seller.....................................................................14
Section 5.01. Affirmative Covenants......................................................................14
Section 5.02. Negative Covenants.........................................................................15
ARTICLE VI Sale of Mortgage Loans from the Purchaser to the Trust................................................16
Section 6.01. Sale and Servicing Agreement...............................................................16
ARTICLE VII Seller's Servicing Obligations.......................................................................17
Section 7.01. Seller's Servicing Obligations.............................................................17
ARTICLE VIII Fees and Expenses...................................................................................18
ARTICLE IX Termination; Additional Remedies......................................................................18
ARTICLE X Payment of Purchase Price..............................................................................18
Section 10.01. Purchase Price Payments....................................................................18
Section 10.02. The Purchaser Note.........................................................................19
ARTICLE XI Confidentiality.......................................................................................20
ARTICLE XII Term.................................................................................................20
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ARTICLE XIII Exclusive Benefit of Parties; Assignment............................................................20
ARTICLE XIV Amendment; Waivers...................................................................................20
ARTICLE XV Execution in Counterparts.............................................................................21
ARTICLE XVI Effect of Invalidity of Provisions...................................................................21
ARTICLE XVII Governing Law.......................................................................................21
ARTICLE XVIII Notices............................................................................................21
ARTICLE XIX Entire Agreement.....................................................................................22
ARTICLE XX Indemnities...........................................................................................22
ARTICLE XXI RESPA Obligations....................................................................................23
ARTICLE XXII Survival............................................................................................23
ARTICLE XXIII Right of Set-off...................................................................................23
ARTICLE XXIV Consent to Service..................................................................................24
ARTICLE XXV Submission to Jurisdiction; Waiver of Trial by Jury..................................................24
ARTICLE XXVI Construction........................................................................................24
ARTICLE XXVII Further Agreements.................................................................................25
EXHIBIT A Form of Non-Negotiable GreenPoint Mortgage Securities Inc.
Promissory Note
SCHEDULE I: Mortgage Loan Schedule
ii
MORTGAGE LOAN PURCHASE AGREEMENT ("Agreement") dated as of
December 1, 1999 between GreenPoint Mortgage Funding, Inc., a New York
corporation ("Seller"), and GreenPoint Mortgage Securities Inc., a Delaware
corporation ("Purchaser").
WHEREAS, Seller desires to sell from time to time to Purchaser
the Initial Mortgage Loans and Subsequent Mortgage Loans (each as hereinafter
defined), and Purchaser desires to purchase such Initial Mortgage Loans and
Subsequent Mortgage Loans in accordance with the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, the parties, in consideration of good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, hereby agree as follows:
ARTICLE I
Definitions
All capitalized terms used in this Agreement and not otherwise
defined herein, shall have the meanings assigned thereto in Annex A to the
Indenture dated as of December 1, 1999, between the Issuer and the Indenture
Trustee, as the same may be amended and supplemented from time to time.
ARTICLE II
Procedures for Purchases of Mortgage Loans; Conditions
Precedent; Settlements
Section 2.01. Purchase and Sale. (a) On the Closing Date in
consideration for the Purchase Price the Seller hereby sells, transfers,
assigns, sets over and otherwise conveys to the Purchaser, without recourse, all
of its right, title and interest in, to and under, whether now existing or
hereafter created, (i) each Initial Mortgage Loan, including its Principal
Balance (and any Additional Balances) and all collections in respect thereof
received on or after the Initial Cut-Off Date; (ii) property that secured a
Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure;
(iii) the Seller's rights under the hazard insurance policies; (iv) any and all
Subsequent Mortgage Loans (including any Additional Balances related thereto)
and (v) all proceeds with respect to the foregoing.
(b) Each such purchase with respect to the Subsequent Mortgage
Loans shall be initiated by the Seller pursuant to the delivery to the Purchaser
of a Purchase Request in the manner set forth in Section 2.04.
(c) To the extent that the fair market value of any Additional
Balance or Subsequent Mortgage Loan sold by the Seller to the Purchaser is
greater than the cash consideration paid by the Purchaser for such Additional
Balance or Subsequent Mortgage Loan, the difference between such fair market
value and the amount of such cash consideration shall be deemed to be a capital
contribution made to the Seller by the Purchaser.
Section 2.02. Delivery of Documents; Purchase of Initial
Mortgage Loans. Prior to the purchase of the Initial Mortgage Loans:
(a) Seller shall have delivered to the Purchaser or any agent
appointed by the Purchaser the Mortgage File for each of the Mortgage Loans.
(b) Purchaser shall have received a Mortgage Loan Schedule
pertaining to the related Mortgage Loans.
(c) Purchaser shall have received copies of the resolutions of
the Board of Directors of Seller, certified by its respective Secretary,
approving this Agreement.
(d) Purchaser shall have received the Certificate of
Incorporation of Seller certified by the Secretary of State of the State of New
York.
(e) Purchaser shall have received a certificate of the
Secretary or Assistant Secretary of Seller certifying (i) the names and
signatures of the officers authorized on its behalf to execute this Agreement,
and any other documents to be delivered by it hereunder and (ii) a copy of
Seller's By-laws.
(f) Purchaser shall have received an opinion of counsel to
Seller as to the due authorization, execution and delivery by the Seller of this
Agreement and as to the validity and enforceability of the transfers
contemplated hereunder and addressing such other matters as the Purchaser may
reasonably request.
(g) Seller shall have instructed the applicable debtor,
trustee, paying agent, authenticating agent, transfer agent, registrar,
predecessor in interest, owner (if the Mortgage Loans are in the form of a
security agreement), or servicer, if any, in respect of the related Mortgage
Loans to reflect on their books and records the transfer of such Mortgage Loans
to Purchaser, as owner or secured party (if the Mortgage Loans are in the form
of a security agreement).
(h) Purchaser shall have received the most recent available
standard servicing or lien reports in summary form, if any, with respect to all
of the mortgages in Seller's portfolio similar to the Mortgage Loans.
(i) The Purchaser shall be permitted to perform its standard
loan review of each Mortgage Loan to be purchased.
(j) UCC-1 financing statements duly executed by Seller as
debtor shall have been filed in California naming the Purchaser as secured party
and the Indenture Trustee on behalf of the Trust as assignee.
Section 2.03. Delivery of Documents; Purchases of Subsequent
Mortgage Loans. Prior to any purchase of Subsequent Mortgage Loans after the
purchase of Initial Mortgage Loans, the actions, conditions and deliveries
specified in Section 2.02 shall have been taken or made, as the case may be with
respect to the Subsequent Mortgage Loans.
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Section 2.04. Purchase Requests. Seller shall deliver to
Purchaser a Purchase Request at least three Business Days prior to the proposed
Purchase Date for any Purchase of Subsequent Mortgage Loans (unless otherwise
agreed by the parties). Purchaser shall indicate its acceptance or declination
of each Purchase Request by completing the appropriate section of the Purchase
Request and returning the copy thereof to Seller; provided, however, that
Purchaser hereby agrees to accept each Purchase Request if all of the conditions
to such Purchase provided for in this Agreement (including, without limitation,
Section 2.02 hereof and the conditions with respect to the purchase of
Subsequent Mortgage Loans) have been satisfied.
With respect to all Purchase Requests, if Purchaser does not
send a copy of a completed Purchase Request to Seller within at least three
Business Days prior to the proposed Purchase Date (five Business Days, if the
related Purchase Request was received by Purchaser at least two calendar weeks
prior to the proposed Purchase Date), Purchaser shall be deemed to have accepted
such Purchase Request. Each Purchase Request accepted by Purchaser shall be
irrevocable and binding on Purchaser and Seller. Seller shall indemnify
Purchaser and hold it harmless against any Losses incurred by Purchaser as a
result of any failure by Seller to timely deliver the Subsequent Mortgage Loans
subject to such Purchase. On the applicable Purchase Date, the Purchaser shall
pay Seller the Purchase Price for the related Subsequent Mortgage Loans against
receipt of the documents required to be delivered by Seller pursuant to Section
2.03.
Section 2.05. Survival of Representations. The terms and
conditions of the purchase of each Mortgage Loan shall be as set forth in this
Agreement. Seller will be deemed on the Closing Date and on each Purchase Date
to have made to Purchaser the representations and warranties set forth in
Article IV hereof and such representations and warranties of Seller shall be
true and correct on and as of the Closing Date and on and as of such Purchase
Date. Each Purchase Request made by Seller shall be deemed to be a restatement
of each of the covenants of Seller made pursuant to Article V of this Agreement.
In addition, Seller shall reaffirm the representations and warranties contained
in Article IV on the date of disposition of the Mortgage Loans by the Purchaser
pursuant to the Sale and Servicing Agreement.
Section 2.06. Proceeds of Mortgage Loans. The transfer and
sale hereby of all of the Seller's right, title and interest in and to each
Mortgage Loan shall include all proceeds, products and profits derived
therefrom, including, without limitation, all scheduled payments of principal of
and interest on such Mortgage Loans and other amounts due or payable or to
become due or payable in respect thereof and proceeds thereof, including,
without limitation, all moneys, goods and other tangible or intangible property
received upon the liquidation or sale thereof.
Section 2.07. Defective Mortgage Loans. If any Mortgage Loan
is re-transferred to the Purchaser pursuant to Section 2.03 of the Sale and
Servicing Agreement, the Seller shall, at the Purchaser's option, either (a)
repurchase such Mortgage Loan at the Repurchase Price, or (b) provide an
Eligible Substitute Mortgage Loan if the Seller has any such loans available for
sale at the time, subject to the terms and conditions of the Sale and Servicing
Agreement.
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ARTICLE III
Intent of Parties; Security Interest
Section 3.01. Intent of Parties; Security Interest. Purchaser
and Seller confirm that the transactions contemplated herein are intended as
purchases and sales rather than as loan transactions. In the event, for any
reason, and solely in such event, any transaction hereunder is construed by any
court or regulatory authority as a loan or other purchase and sale of the
related Mortgage Loans, Seller shall be deemed to have hereby pledged to
Purchaser as security for the performance by Seller of all of its obligations
from time to time arising hereunder and under any and all Purchases effected
pursuant thereto, and shall be deemed to have granted to Purchaser a security
interest in, the related Mortgage Loans and all distributions in respect
thereof, and the proceeds of any and all of the foregoing (collectively, the
"Collateral"). In furtherance of the foregoing, (i) this Agreement shall
constitute a security agreement, (ii) Purchaser shall have all of the rights of
a secured party with respect to the Collateral pursuant to applicable law and
(iii) Seller shall execute all documents, including, but not limited to,
financing statements under the Uniform Commercial Code as in effect in any
applicable jurisdictions, as the Purchaser may reasonably require to effectively
perfect and evidence Purchaser's first priority security interest in the
Collateral. Seller also covenants not to pledge, assign or grant any security
interest to any other party in any Mortgage Loan sold to Purchaser.
ARTICLE IV
Representations and Warranties
Section 4.01. Representations and Warranties of Seller. The
Seller represents, warrants and covenants to the Purchaser as of the Closing
Date and, with respect to the Subsequent Mortgage Loans, as of each related
Subsequent Transfer Date, that:
(i) the Seller is duly organized, validly existing and in good
standing under the laws of the State of New York and is duly authorized and
qualified to transact any and all business contemplated by this Agreement
to be conducted by the Seller in any state in which a Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and the servicing of the Mortgage Loan in accordance with the
terms of this Agreement;
(ii) the Seller has the full corporate power and authority to
service each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by this Agreement
and the execution, delivery and performance of this Agreement by the Seller
has been duly authorized by all necessary corporate action on the part of
the Seller; and this Agreement, assuming the due authorization, execution
and delivery thereof by the Purchaser, constitutes a legal, valid and
binding obligation of the Seller, enforceable against the Seller in
accordance with its respective terms, except to the extent that (a) the
enforceability thereof may be limited by federal or state bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of
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equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought;
(iii) the execution and delivery of this Agreement by the
Seller, the servicing of the Mortgage Loans by the Seller hereunder, the
consummation by the Seller of the transactions herein contemplated, and the
fulfillment by the Seller of or compliance by the Seller with the terms
hereof will not (A) result in a breach of any term or provision of the
charter or by-laws of the Seller or (B) conflict with, result in a breach,
violation or acceleration of, or result in a default under, the terms of
any other material agreement or instrument to which the Seller is a party
or by which it may be bound, or any statute, order or regulation applicable
to the Seller of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Seller, which breach,
violation, default or non-compliance would have a material adverse effect
on (a) the business, operations, financial condition, properties or assets
of the Seller taken as a whole or (b) the ability of the Seller to perform
its obligations under this Agreement; and the Seller is not a party to,
bound by, or in breach or violation of any material indenture or other
material agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially
and adversely affects or, to the Seller's knowledge, would in the future
reasonably be expected to materially and adversely affect, (x) the ability
of the Seller to perform its obligations under this Agreement or (y) the
business, operations, financial condition, properties or assets of the
Seller taken as a whole;
(iv) the Seller is, and currently intends to remain, in good
standing and qualified to do business in each jurisdiction where failure to
be so qualified or licensed would have a material adverse effect on (a) the
business, operations, financial condition, properties or assets of the
Seller taken as a whole or (b) the enforceability of any Mortgage Loan or
the servicing of the Mortgage Loans in accordance with the terms of this
Agreement;
(v) there is no litigation pending or, to the Seller's actual
knowledge, overtly threatened against the Seller that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Seller to service the Mortgage Loans or for
the Seller to perform any of its other obligations hereunder in accordance
with the terms hereof;
(vi) 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 hereby
(except for such consents, approvals, authorizations, or orders to be
obtained in connection with each Purchase Date with respect to future
transactions to be consummated hereunder), or if any such consent,
approval, authorization or order not relating to a future transaction is
required, the Seller has obtained the same; and
(vii) the Seller has caused to be performed any and all acts
required to preserve the rights and remedies of the Purchaser in any
insurance policies of the Seller or a mortgagee applicable to the Mortgage
Loans sold by the Seller.
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Section 4.02. Representations and Warranties Regarding
Mortgage Loans. (a) Seller represents and warrants to Purchaser as of the
Closing Date with respect to each Initial Mortgage Loan, and, as of the related
Subsequent Transfer Date, with respect to each Subsequent Mortgage Loan, as
follows:
(i) As of the Closing Date with respect to the Initial
Mortgage Loans and as of the related Transfer Date with respect to the
Subsequent Mortgage Loans and any Eligible Substitute Mortgage Loans and,
with respect to any HELOC Mortgage Loan, as of the date any Additional
Balance is created, the information set forth in the Mortgage Loan Schedule
for such Mortgage Loans is true and correct in all material respects;
(ii) Each Mortgage Loan is being serviced by the Servicer or a
Person controlling, controlled by or under common control with the Servicer
and qualified to service mortgage loans;
(iii) The applicable Cut-Off Date Principal Balance has not
been assigned or pledged, and the Sponsor is the sole owner and holder of
such Cut-Off Date Principal Balance free and clear of any and all liens,
claims, encumbrances, participation interests, equities, pledges, charges
or security interests of any nature, and has full right and authority,
under all governmental and regulatory bodies having jurisdiction over the
ownership of the applicable Mortgage Loans, to sell, assign or transfer the
same pursuant to this Agreement;
(iv) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to any
Subsequent Mortgage Loans and any Eligible Substitute Mortgage Loans, the
Mortgage Loans have not been assigned or pledged, and the Sponsor is the
sole owner and holder of such Mortgage Loans free and clear of any and all
liens, claims, encumbrances, participation interests, equities, pledges,
charges or security interests of any nature, and has full right and
authority, under all governmental and regulatory bodies having jurisdiction
over the ownership of the applicable Mortgage Loans, to sell and assign the
same pursuant to this Agreement;
(v) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to any
Subsequent Mortgage Loans and any Eligible Substitute Mortgage Loans, the
related Mortgage is a valid and subsisting first or second lien, as set
forth on the Mortgage Loan Schedule with respect to each related Mortgaged
Property, and as of the applicable Cut-Off Date the related Mortgaged
Property is free and clear of all encumbrances and liens having priority
over the first or second lien, as applicable, of such Mortgage except for
liens for (i) real estate taxes and special assessments not yet delinquent;
(ii) any first mortgage loan secured by such Mortgaged Property and
specified on the Mortgage Loan Schedule; (iii) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording that are acceptable to mortgage lending
institutions generally; and (iv) 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 such Mortgage;
(vi) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to any
Subsequent Mortgage Loans and any Eligible
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Substitute Mortgage Loans, there is no valid offset, defense or
counterclaim of any obligor under any Loan Agreement or Mortgage;
(vii) To the best knowledge of the Sponsor, as of the Closing
Date with respect to the Initial Mortgage Loans and the applicable Transfer
Date with respect to any Subsequent Mortgage Loans and any Eligible
Substitute Mortgage Loans, there is no delinquent recording or other tax or
fee or assessment lien against any related Mortgaged Property;
(viii) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to any
Subsequent Mortgage Loans and any Eligible Substitute Mortgage Loans, there
is no proceeding pending or, to the best knowledge of the Sponsor,
threatened for the total or partial condemnation of the related Mortgaged
Property, and such property is free of material damage;
(ix) To the best knowledge of the Sponsor, as of the Closing
Date with respect to the Initial Mortgage Loans and the applicable Transfer
Date with respect to any Subsequent Mortgage Loans and any Eligible
Substitute Mortgage Loans, there are no mechanics' or similar liens or
claims which have been filed for work, labor or material affecting the
related Mortgaged Property which are, or may be, liens prior or equal to
the lien of the related Mortgage, except liens which are fully insured
against by the title insurance policy referred to in clause (xiv);
(x) No Minimum Monthly Payment is more than 89 days delinquent
(measured on a contractual basis).
(xi) As of the Closing Date with respect to the Initial
Mortgage Loans and as of the applicable Transfer Date with respect to any
Subsequent Mortgage Loans and any Eligible Substitute Mortgage Loans, for
each Mortgage Loan, the related Mortgage File contains each of the
documents and instruments specified to be included therein;
(xii) The related Loan Agreement and the related Mortgage at
origination complied in all material respects with applicable state and
federal laws, including, without limitation, usury, truth-in-lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the Mortgage Loans;
(xiii) On the Closing Date with respect to the Initial
Mortgage Loans and, to the extent not already included in such filing, on
the applicable Transfer Date with respect to any Subsequent Mortgage Loans
and any Eligible Substitute Mortgage Loans, the Sponsor has filed UCC-1
financing statements with respect to such Mortgage Loans;
(xiv) Either a lender's title insurance policy or binder was
issued on the date of origination of the Mortgage Loans and each such
policy is valid and remains in full force and effect, or a title search or
guaranty of title customary in the relevant jurisdiction was obtained with
respect to a Mortgage Loans as to which no title insurance policy or binder
was issued;
(xv) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to any
Subsequent Mortgage Loans and any Eligible
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Substitute Mortgage Loans, none of the Mortgaged Properties is a mobile
home or a manufactured housing unit;
(xvi) As of the Initial Cut-Off Date for the Initial Mortgage
Loans no more than (a) 0.67% of the Initial Pool I Mortgage Loans (by
Initial Cut-Off Date Pool I Balance), or (b) 3.14% of the Initial Pool II
Mortgage Loans (by Initial Cut-Off Date Pool II Balance) are secured by
Mortgaged Properties located in one United States postal zip code;
(xvii) The Combined Loan-to-Value Ratio for each Initial Pool
I Mortgage Loan was not in excess of 100% and the Combined Loan-to-Value
Ratio for each Initial Pool II Mortgage Loan was not in excess of 100%;
(xviii) Each Pool I Mortgage Loan substantially conforms to
certain loan origination standards with respect to loan balances as of the
date of origination set forth by the Federal National Mortgage Association.
(xix) No selection procedure reasonably believed by the
Sponsor to be adverse to the interests of the Noteholders or the Insurer
was utilized in selecting the Mortgage Loans;
(xx) The Sponsor has not transferred the Mortgage Loans to the
Trust with any intent to hinder, delay or defraud any of its creditors;
(xxi) The Minimum Monthly Payment with respect to any Mortgage
Loan is not less than the interest accrued at the applicable Loan Rate on
the average daily Principal Balance during the interest period relating to
the date on which such Minimum Monthly Payment is due;
(xxii) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to any
Subsequent Mortgage Loans and any Eligible Substitute Mortgage Loans, each
Loan Agreement and each Mortgage Loan is an enforceable obligation of the
related Mortgagor, except as the enforceability thereof may be limited by
the bankruptcy, insolvency or similar laws affecting creditors' rights
generally;
(xxiii) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to any
Subsequent Mortgage Loans and any Eligible Substitute Mortgage Loans, there
has been no default of any senior mortgage loan related to a Mortgaged
Property that has not been cured by a party other than the Servicer;
(xxiv) The terms of each Mortgage Note and each Mortgage have
not been impaired, altered or modified in any respect, except by a written
instrument which (if such instrument is secured by real property) has been
recorded, if necessary, to protect the interest of the Noteholders and
which has been delivered to the Indenture Trustee. The substance of any
such alteration or modification is reflected on the related Mortgage Loan
Schedule and has been approved by the primary mortgage guaranty insurer, if
any;
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(xxv) The definition of "prime rate" in each Credit Line
Agreement relating to a HELOC Mortgage Loan does not differ materially from
the definition in the form of Credit Line Agreement in Exhibit D of the
Sale and Servicing Agreement;
(xxvi) The weighted average remaining term to maturity of the
Initial Pool I Mortgage Loans on a contractual basis as of the related
Initial Cut-Off Date is approximately 207 months and for the Initial Pool
II Mortgage Loans is approximately 209 months. On each date that the Loan
Rates relating to Initial HELOC Mortgage Loans have been adjusted, interest
rate adjustments on the Initial HELOC Mortgage Loans were made in
compliance with the related Mortgages and Credit Line Agreement and
applicable law. Over the term of each Initial HELOC Mortgage Loan, the Loan
Rate may not exceed the related Loan Rate Cap, if any. With respect to the
Initial Pool I HELOC Mortgage Loans, the weighted average Loan Rate Cap is
approximately 18.001%. With respect to the Initial Pool II HELOC Mortgage
Loans, the weighted average Loan Rate Cap is approximately 18.000%. With
respect to the Initial Pool I HELOC Mortgage Loans, the margins range
between 0.00% and 6.25% and the weighted average margin is approximately
3.23% as of the related Initial Cut-Off Date. With respect to the Initial
Pool II HELOC Mortgage Loans, the margins range between 0.00% and 6.00% and
the weighted average margin is approximately 3.00% as of the related
Initial Cut-Off Date. The Loan Rates on the Initial Pool I Mortgage Loans
range between 5.625% and 15.500%, the Loan Rates on the Initial Pool II
Mortgage Loans range between 5.875% and 14.500% and the weighted average
Loan Rate is approximately 7.084% for Pool I and 6.451% for Pool II;
(xxvii) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to any
Subsequent Mortgage Loans and any Eligible Substitute Mortgage Loans, each
Mortgaged Property consists of a single parcel of real property with a
one-to-four unit single family residence erected thereon, or an individual
condominium unit, planned unit development unit or townhouse;
(xxviii) No more than 30.73% (by Initial Pool I Balance) of
the Initial Pool I Mortgage Loans are secured by real property improved by
individual condominium units, planned development units or two-to-four
family residences erected thereon, and approximately 69.27% (by Initial
Pool I Balance) of the Initial Pool I Mortgage Loans are secured by real
property with a one-family residence erected thereon;
No more than 21.17% (by Initial Pool II Balance) of the
Initial Pool II Mortgage Loans are secured by real property improved by
individual condominium units, planned development units or two-to-four
family residences erected thereon, and approximately 78.83% (by Initial
Pool II Balance) of the Initial Pool II Mortgage Loans are secured by real
property with a one-family residence erected thereon;
(xxix) Each Mortgage Note evidencing a Closed End Mortgage
Loan is comprised of one original promissory note, and each such promissory
note constitutes an "instrument" for purposes of Section 9-105(1)(i) of the
UCC;
(xxx) The Credit Limits on the Initial Pool I HELOC Mortgage
Loans range between $10,000 and $500,000 with an average of approximately
$52,380. The Credit
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Limits on the Initial Pool II HELOC Mortgage Loans range between $15,000
and $500,000 with an average of approximately $127,774. The Principal
Balances on the Initial Pool I HELOC Mortgage Loans range between $0 and
$351,688 with an average of approximately $37,582. The Principal Balances
on the Initial Pool II HELOC Mortgage Loans range between $0 and $500,000
with an average of approximately $110,214. The Principal Balances on the
Initial Pool I Closed End Mortgage Loans range between $10,000 and $112,500
with an average of approximately $37,791. The average Credit Limit
Utilization Rate (weighted by credit line) of the Initial Pool I HELOC
Mortgage Loans is approximately 88.93% and of the Initial Pool II HELOC
Mortgage Loans is approximately 93.64%;
(xxxi) 100% of the Mortgage Loans are second liens, and either
(A) no consent for each Mortgage Loan was required by the holder of the
related senior lien prior to the making of such Mortgage Loan or (B) such
consent has been obtained and is contained in the related Mortgage File;
(xxxii) This Agreement constitutes a valid transfer and
assignment to the Trust of all right, title and interest of the Sponsor in
and to the Cut-Off Date Principal Balances with respect to the applicable
Mortgage Loans, all monies due or to become due with respect thereto and
all proceeds of such Cut-Off Date Principal Balances with respect to the
Mortgage Loans and such funds as are from time to time deposited in the
Collection Account (excluding any investment earnings thereon) and all
other property specified in the definition of "Trust" as being part of the
corpus of the Trust conveyed to the Trust, and upon payment for the
Additional Balances, will constitute a valid transfer and assignment to the
Indenture Trustee of all right, title and interest of the Sponsor in and to
the Additional Balances, all monies due or to become due with respect
thereto, and all proceeds of such Additional Balances and all other
property specified in the definition of "Trust" relating to the Additional
Balances;
(xxxiii) No Mortgagor is insolvent or bankrupt as of the
Closing Date with respect to the Initial Mortgage Loans and as of the
applicable Transfer Date with respect to any Subsequent Mortgage Loans and
any Eligible Substitute Mortgage Loans;
(xxxiv) The proceeds of each Closed End Mortgage Loan have
been fully disbursed, and there is no obligation on the part of the
mortgagee to make future advances thereunder. Any and all requirements as
to completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making or closing or recording such
Closed End Mortgage Loans were paid;
(xxxv) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related Mortgaged Property of the
benefits of the security, including (A) in the case of a Mortgage
designated as a deed of trust, by Indenture Trustee's sale and (B)
otherwise by judicial foreclosure;
(xxxvi) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to any
Subsequent Mortgage Loans and any Eligible
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Substitute Mortgage Loan, there is no default, breach, violation or event
of acceleration existing under any 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 the Sponsor has not waived any
default, breach, violation or event of acceleration;
(xxxvii) To the best knowledge of the Sponsor, 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 such parties;
(xxxviii) As of the Initial Cut-Off Date, no more than 0.32%
of the Principal Balance of the Initial Pool I Mortgage Loans nor more than
0.00% of the Principal Balance of the Initial Pool II Mortgage Loans
represents Mortgage Loans with respect to which the related Mortgagor had a
Credit Score of 600 or less at the time of origination or whose Credit
Score was unavailable;
(xxxix) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to any
Subsequent Mortgage Loan and any Eligible Substitute Mortgage Loan, no
Mortgagor has been released, in whole or in part, except in connection with
an assumption agreement which has been approved by the applicable title
insurer (to the extent required by such title insurer) and which is part of
the Mortgage File delivered to the Indenture Trustee;
(xl) At the time of origination of each Mortgage Loan, the
related prior lien was not more than 30 days delinquent;
(xli) All required inspections, licenses and certificates with
respect to the use and occupancy of all occupied portions of all property
securing the Mortgages have been made, obtained or issued, as applicable;
(xlii) With respect to each Mortgage Loan, the related prior
lien does not provide for negative amortization;
(xliii) With respect to each Mortgage Loan, the maturity date
of the Mortgage Loan is prior to the maturity date of the related prior
lien if such prior lien provides for a balloon payment;
(xliv) Each Initial Pool I Mortgage Loan is secured by a
property having an appraised value as of origination of $3,600,000 or less
and each Initial Pool II Mortgage Loan is secured by a property having an
appraised value as of origination of $6,000,000 or less.
(xlv) With respect to each Mortgage Loan, the improvements
upon each Mortgaged Property are covered by a valid and existing hazard
insurance policy with a carrier generally acceptable to the Servicer that
provides for fire and extended coverage representing coverage not less than
(a) the Credit Limit of such HELOC Mortgage Loan or (b) the Cut-Off Date
Principal Balance of such Closed End Mortgage Loan or (c) the maximum
insurable value of the Mortgaged Property.
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(xlvi) Each Subsequent Mortgage Loan was or will be originated
in accordance with the same underwriting standards that were used to
originate the Initial Mortgage Loans.
(b) Seller represents and warrants to Purchaser that each
Mortgage Loan shall have been originated in conformity with and meets, as of the
Purchase Date, the underwriting standards for the Seller's home equity loans
described in the Prospectus Supplement dated December 15, 1999 with respect to
the Class A-1 Notes and Class A-2 Notes.
(c) Each Mortgage Loan conforms to the representations and
warranties set forth in Section 2.05 of the Sale and Servicing Agreement.
Section 4.03. Representations and Warranties of Purchaser.
Purchaser hereby makes the following representations and warranties, each of
which representations and warranties (i) is material and being relied upon by
Seller and (ii) is true in all respects as of the date of this Agreement:
(i) Purchaser has been duly organized and is validly existing
as a corporation under the laws of the State of Delaware.
(ii) Purchaser has the requisite power and authority and legal
right to execute and deliver, engage in the transactions contemplated by,
and perform and observe the terms and conditions of, this Agreement to be
performed by it.
(iii) This Agreement has been duly authorized and executed by
Purchaser, is valid, binding and enforceable against Purchaser in
accordance with its terms, and the execution, delivery and performance by
Purchaser of this Agreement does not conflict with any material term or
provision of any other agreement to which Purchaser is a party or any term
or provision of the Certificate of Incorporation or the By-laws of the
Purchaser, or any law, rule, equation, order, judgment, writ, injunction or
decree applicable to Purchaser of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Purchaser.
(iv) No consent, approval, authorization or order of,
registration or filing with, or notice to any governmental authority or
court is required under applicable law in connection with the execution and
delivery by Purchaser of this agreement.
(v) To the best knowledge of Purchaser, there is no action,
proceeding or investigation pending or threatened against Purchaser before
any court, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement, or (iii) which is
likely to materially and adversely affect the performance by Purchaser of
its obligations under, or the validity or enforceability of, this
Agreement.
(vi) Each purchase of Initial Mortgage Loans and Subsequent
Mortgage Loans hereunder shall constitute a representation by Purchaser to
Seller that Purchaser understands, and that Purchaser has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of, its investment in the relevant Mortgage
Loans.
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Section 4.04. Remedies for Breach of Representations and
Warranties; Repurchase Obligation. It is understood and agreed that the
representations and warranties set forth in Section 4.01 and 4.02 shall survive
each sale of Mortgage Loans to the Purchaser and shall inure to the benefit of
the Purchaser and subsequent transferees notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Mortgage File. With respect to the
representations and warranties contained in Sections 4.01 and 4.02 which are
made to the best of the Seller's knowledge or to the actual knowledge of the
Seller, if it is discovered by either the Seller or the Purchaser that the
substance of such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage Loan or the
Purchaser's interest therein, then notwithstanding the Seller's lack of
knowledge with respect to the inaccuracy at the time the representation or
warranty was made, the Seller shall repurchase the related Mortgage Loan in
accordance with this Section 4.04 as if the applicable representation or
warranty was breached, subject to the terms and conditions of the Sale and
Servicing Agreement. Upon discovery by either the Seller or the Purchaser of a
breach of any of the foregoing representations and warranties which materially
and adversely affects the value of the Mortgage Loans or the interest of the
Purchaser (or which materially and adversely affects the interests of the
Purchaser in the related Mortgage Loan in the case of a representation and
warranty relating to a particular Mortgage Loan), the party discovering such
breach shall give prompt written notice to the others.
Within 60 days of the earlier of either discovery by or notice
to the Seller of any breach of a representation or warranty which materially and
adversely affects the value of any Mortgage Loan or the Purchaser's interest
therein, the Seller shall use its best efforts promptly to cure such breach in
all material respects and, if such breach cannot be cured or is not cured or is
not being diligently pursued as evidenced by a notice acceptable to the
Purchaser, as evidenced by the Purchaser's agreement thereto, at the end of such
60-day period, the Seller shall, at the Purchaser's option, either (a)
repurchase such Mortgage Loan at the Repurchase Price, or (b) provide an
Eligible Substitute Mortgage Loan, if the Seller has any such loans available
for sale at the time subject to the terms and conditions of the Sale and
Servicing Agreement.
At the time of repurchase or substitution, the Purchaser and
the Seller shall arrange for the assignment of such Mortgage Loan to the Seller
and the delivery by the Purchaser to the Seller of the related Mortgage Files.
In addition to such cure and repurchase obligation, the Seller
shall indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
the representations and warranties contained in this Article IV (notwithstanding
any limitation in such representation and warranty as to the Seller's
knowledge). It is understood and agreed that the obligations of the Seller set
forth in this Section 4.04 to cure or repurchase a defective Mortgage Loan and
to indemnify the Purchaser as provided in this Section 4.04 constitute the sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties.
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Any cause of action against the Seller relating to or arising
out of the breach of any representations and warranties made in Sections 4.01 or
4.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by
the Seller to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Seller by the Purchaser for compliance with the
relevant provisions of this Agreement.
ARTICLE V
Covenants and Warranties of Seller
So long as this Agreement remains in effect or Seller shall
have any obligations hereunder, Seller hereby covenants and agrees with
Purchaser as follows:
Section 5.01. Affirmative Covenants.
(a) Until the later to occur of (i) the discharge and payment
of all of Seller's obligations under this Agreement and (ii) the Termination
Date of this Agreement, Seller shall, promptly upon preparation, but in no event
later than 60 days following the end of each such party's first three fiscal
quarters, deliver to Purchaser its unaudited company-prepared financial
statements as of the end of each such fiscal quarter, prepared in accordance
with GAAP. Seller shall, promptly upon preparation, but in no event later than
90 days following the end of such party's fourth fiscal quarter, deliver to
Purchaser its audited and certified financial statements, prepared in accordance
with GAAP, as of the end of the most recently ended fiscal year, which audits
and certifications shall each be prepared by a nationally recognized independent
accounting firm or by a regionally recognized independent accounting firm with
the prior written consent of Purchaser, which consent shall not be unreasonably
withheld. In all cases, financial statements shall include, without limitation,
a balance sheet, a profit and loss statement and a statement of cash flows.
Notwithstanding anything in this Agreement to the contrary, if (x) the audited
and certified financial statements described in the immediately preceding
sentence are not delivered within the above-specified 90 days, (y) Seller is
diligently using its best efforts to deliver such financial statements, and (z)
Seller provides Purchaser with a notice specifying the reason for the delay and
a date, within a reasonable time period (as determined by Purchaser), on which
such financial statements will be delivered, and they are so delivered; then
failure to deliver such financial statements within the above-specified 90 days,
as the case may be, shall not be deemed to be an Event of Termination of this
Agreement.
(b) Upon request of Purchaser, Seller shall, to the extent
lawful, promptly upon filing, deliver to Purchaser copies of all material public
filings made by Seller with any governmental or quasi-governmental body.
(c) Seller shall (i) with respect to any Mortgage Loans
serviced by Seller or any of its affiliates or otherwise use its best efforts to
cause to be delivered to Purchaser monthly, the report, if any, prepared by the
relevant trustee or servicer setting forth payment activity, defaults and
delinquencies with respect to each Mortgage Loan acquired by Purchaser and (ii)
prepare and deliver reports each month, detailing, with respect to all
Purchases, such information as the Purchaser may from time to time reasonably
request.
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(d) Seller shall do all things necessary to remain duly
incorporated, validly existing and in good standing as a domestic corporation in
its jurisdiction of incorporation and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted
except where failure to maintain such authority would not have a material
adverse effect on the ability of Seller to conduct its business or to perform
its obligations under this Agreement.
(e) At all times during this Agreement, Seller shall possess
sufficient net capital and liquid assets (or ability to access the same) to
satisfy its obligations as they become due in the normal course of business.
(f) Seller will notify Purchaser in writing of any of the
following promptly upon learning of the occurrence thereof, describing the same
and, if applicable, any remedial steps being taken with respect thereto;
(i) The occurrence or likelihood of occurrence of an Event of
Termination hereunder;
(ii) The institution of any litigation, arbitration proceeding
or governmental proceeding which, in the opinion of counsel to Seller, will
have a material adverse effect on Seller or the Mortgage Loans;
(iii) The entry of any judgment or decree against Seller if
the aggregate amount of all judgments and decrees then outstanding against
Seller exceeds $10,000,000 after deducting (A) the amount with respect to
which Seller is insured and with respect to which the insurer has assumed
responsibility in writing, and (B) the amount for which Seller is otherwise
indemnified if the terms of such indemnification are reasonably
satisfactory to Purchaser; or
(iv) The occurrence or likelihood of any event which would
allow the obligee under any material loan agreement to which Seller is
bound to declare an event of default or accelerate the obligations of
Seller thereunder.
(g) Seller shall permit the Purchaser or its accountants,
attorneys or other agents access to all of the books and records relating to
Mortgage Loans purchased and retained by Purchaser for inspection and copying
during normal business hours at all places where Seller conducts business.
Section 5.02. Negative Covenants.
(a) Seller shall not assign or attempt to assign this
Agreement or any rights hereunder, without first obtaining the specific written
consent of Purchaser.
(b) Seller shall not amend its Articles of Incorporation or
By-laws, which amendment shall have or is likely to have an adverse effect upon
Purchaser or its interests under this Agreement, without the prior written
consent of Purchaser.
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(c) During the term of this Agreement, Seller shall not engage
in any business other than as a consumer and mortgage finance lender and
servicer, except with the prior written consent of Purchaser.
(d) Seller shall not (i) dissolve or terminate its existence
or (ii) transfer any assets to any affiliate except as otherwise expressly
permitted or contemplated hereby.
(e) Except with the written consent of the Purchaser, the
Seller shall not guarantee, endorse or otherwise in any way become or be
responsible for any obligations of any other person, entity or affiliate,
including, without limitation, whether directly or indirectly by agreement to
purchase the indebtedness of any other person or through the purchase of goods,
supplies or services, or maintenance of working capital or other balance sheet
covenants or conditions, or by way of stock purchase, capital contribution,
advance or loan for the purposes of paying or discharging any indebtedness or
obligation of such other person or otherwise; provided, however, that nothing
contained herein shall prevent Seller from indemnifying its officers, directors
and agents pursuant to its By-laws and its Articles of Incorporation.
(f) Seller will not commit any act in violation of applicable
laws, or regulations promulgated pursuant thereto that relate to the Mortgage
Loans or that materially and adversely affect the operations or financial
conditions of Seller.
ARTICLE VI
Sale of Mortgage Loans from the Purchaser to the Trust
Section 6.01. Sale and Servicing Agreement. It is the intent
of the Seller and the Purchaser that with respect to the Mortgage Loans, the
Purchaser shall concurrently sell all of its right, title and interest to the
Mortgage Loans and all other property conveyed to it hereunder to the Trust
pursuant to the Sale and Servicing Agreement.
With respect to such sale, the Seller agrees:
(i) to cooperate fully with the Purchaser and the Trust with
respect to all reasonable requests and due diligence procedures including
participating in meetings with Rating Agencies, the Insurer and such other
parties as the Purchaser shall designate and participating in meetings with
the Trust and providing information reasonably requested by the Trust;
(ii) to execute the Sale and Servicing Agreement and all other
necessary documents to effect the transactions contemplated therein;
(iii) the Seller shall make the representations and warranties
set forth herein regarding the Seller and the Mortgage Loans as of the date
of the transfer to the Trust;
(iv) to deliver to the Purchaser for inclusion in any
prospectus or other offering material such publicly available information
regarding the Seller, its financial condition and the mortgage loan
delinquency, foreclosure and loss experience of its portfolio as is
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customarily set forth in a prospectus supplement with respect to a
comparable mortgage pool, the underwriting of mortgage loans, the servicer,
the servicing and collection of mortgage loans, lending activities and loan
sales of the servicer, regulatory matters and delinquency and loss
experience and any additional information reasonably requested by the
Purchaser, and to deliver to the Purchaser unaudited consolidated financial
statements of the Seller, in which case the Purchaser shall bear the cost
of having such statements audited by certified public accountants if the
Purchaser desires such an audit, or as is otherwise reasonably requested by
the Purchaser and which the Seller is capable of providing without
unreasonable effort or expense, and to indemnify the Purchaser and its
affiliates for material misstatements or omissions contained in such
information;
(v) to deliver to the Purchaser and to any person designated
by the Purchaser, at the Purchaser's expense, such statements and audit
letters issued by reputable, certified public accountants pertaining to
information provided by the Seller pursuant to clause (iv) above as shall
be reasonably requested by the Purchaser (it being acknowledged by
Purchaser that the delivery of such statements and letters is subject to
the consent of such accountants);
(vi) to deliver to the Purchaser, and to any Person designated
by the Purchaser, such legal documents and in-house opinions of counsel as
are customarily delivered by originators or servicers, as the case may be,
and reasonably determined by the Purchaser to be necessary in connection
with the transactions contemplated by the Sale and Servicing Agreement, it
being understood that the cost of any opinions of outside special counsel
that may be required shall be the responsibility of the Seller;
(vii) to cooperate fully with the Purchaser and any
prospective Purchaser with respect to the preparation of Mortgage Loan
documents and other documents and with respect to servicing requirements
reasonably requested by the Rating Agencies and the Insurer; and
(viii) to negotiate and execute one or more custodial and
servicing agreements among the Purchaser, the Seller and a third party
custodian/trustee which is generally considered to be a prudent
custodian/trustee in the secondary mortgage market designated by the
Purchaser in its sole discretion after consultation with the Seller, in
either case for the purpose of securitizing the Mortgage Loans.
ARTICLE VII
Seller's Servicing Obligations
Section 7.01. Seller's Servicing Obligations. The Seller, as
an independent contract servicer, shall service and administer the Mortgage
Loans in accordance with the terms and provisions set forth in Articles III, IV,
V, VII and VIII of the Sale and Servicing Agreement which sections are hereby
incorporated in this Agreement in their entirety (with, however, the changes and
adjustments as provided in this Agreement) as if the same were contained in this
Article VII.
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To the extent any provision of any definition set forth in the
Sale and Servicing Agreement shall conflict with any provision set forth in this
Agreement, the provision or definition in this Agreement shall govern.
ARTICLE VIII
Fees and Expenses
The Purchaser shall pay any salaries and other compensation
due its employees and the legal fees and expenses of its attorneys and
accountants. All other costs and expenses incurred in connection with the
transfer and delivery of the Mortgage Loans pursuant to this Agreement or the
Sale and Servicing Agreement, including, without limitation, recording fees,
fees for title policy endorsements and continuations, and fees for recording
intervening assignments of Mortgage, shall be paid by the Seller. To the extent
not paid out of the Trust pursuant to Section 8.6(d)(i) of the Indenture, the
Seller shall pay the on-going fees of any custodian or trustee under the Sale
and Servicing Agreement, the Trust Agreement or the Indenture. The Seller shall
pay (i) the acceptance and file review fees of any custodian or trustee under
this Agreement, the Indenture, the Trust Agreement or the Sale and Servicing
Agreement and (ii) the costs of legal counsel and legal opinions, accounting
comfort letters and fees, printing of disclosure documents, rating agency fees,
Insurer up-front fees, SEC filing fees and the costs of any and all related
document preparations associated with the Sale and Servicing Agreement, the
Trust Agreement, the Indenture or this Agreement unless stated otherwise in the
Purchase Request with respect to any Subsequent Mortgage Loans. The Seller also
agrees to pay the fees and other amounts for which the Seller or Servicer is
obligated under the Insurance Agreement.
ARTICLE IX
Termination; Additional Remedies
Upon the occurrence of a Rapid Amortization Event due to an
act or omission of the Seller (an "Event of Termination"), the Purchaser and its
assignees shall have, in addition to all other rights and remedies under this
Agreement or otherwise, all other rights and remedies provided under the UCC of
each applicable jurisdiction and other applicable laws, which rights shall be
cumulative. Without limiting the foregoing, the occurrence of an Event of
Termination shall not deny to the Purchaser or its assignees any remedy in
addition to termination of its obligations to make purchases hereunder to which
the Purchaser or its assignee may be otherwise appropriately entitled, whether
by statute or applicable law, at law or in equity.
ARTICLE X
Payment of Purchase Price
Section 10.01. Purchase Price Payments. On the Closing Date,
and on the Business Day following each other day on which any Mortgage Loans are
purchased from the Seller by the Purchaser pursuant to Article II hereof or
Additional Balances relating to Mortgage
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Loans are funded by the Seller, on the terms and subject to the conditions of
this Agreement, the Purchaser shall pay to the Seller the applicable Purchase
Price by (i) making or causing to be made a cash payment to the Seller or its
designee in such amount determined by the Purchaser, (ii) crediting the Seller
with an additional capital contribution to the Purchaser, (iii) automatically
increasing the principal amount outstanding under the Purchaser Note by the
amount of the excess of the Purchase Price to be paid to the Seller for such
purchased assets over the amount of any cash payment made on such day to the
Seller and/or any capital contribution made by the Seller to the Purchaser,
subject to a cap on such note at any time equal to $10 million or (iv) any
combination of the foregoing. Such $10 million cap may be increased upon the
occurrence of and in the amount of any cash capital contributions made by the
Seller to the Purchaser.
Section 10.02. The Purchaser Note.
(a) On the Closing Date, the Purchaser shall deliver to the
Seller a promissory note, substantially in the form of Exhibit A, payable to the
order of the Seller (such promissory note, as the same has been or hereafter may
be amended, supplemented, endorsed or otherwise modified from time to time,
together with any promissory note issued from time to time in substitution
therefor or renewal thereof in accordance with this Agreement, being herein
called the "Purchaser Note"), which Purchaser Note shall, in accordance with its
terms, be subordinated to all interests of the Trust, all claims to the cash
flows from Trust assets and all obligations of the Purchaser, of any nature, now
or hereafter arising under or in connection with the Sale and Servicing
Agreement. The Purchaser Note shall evidence all amounts outstanding thereunder
as of the Closing Date in addition to amounts subsequently incurred thereunder
as provided in this Agreement. Subject to the foregoing, the Purchaser Note
shall be payable in full on the date which is one year and one day after the
Termination Date. The Purchaser Note shall bear interest at the "prime rate" as
determined by the Indenture Trustee from time to time in effect. The Purchaser
may prepay all or part of the outstanding balance of the Purchaser Note and
interest accrued thereon from time to time without any premium or penalty,
unless an Event of Default has occurred and is continuing or would result from
such prepayment or payment.
(b) The Servicer shall hold the Purchaser Note for the benefit
of the Seller, and shall make all appropriate recordkeeping entries with respect
to the Purchaser Note or otherwise to reflect the payments on and adjustments of
the Purchaser Note. The Servicer's books and records shall constitute rebuttable
presumptive evidence of the principal amount of and accrued interest on the
Purchaser Note at any time. The Seller hereby irrevocably authorizes the
Servicer to xxxx the Purchaser Note "CANCELLED" and to return the Purchaser Note
to the Purchaser upon the full and final payment thereof after the Termination
Date.
(c) The Seller hereby agrees not to transfer, assign, exchange
or otherwise convey or pledge, hypothecate or otherwise grant a security
interest in the Purchaser Note or any interest represented thereby, and any
attempt to transfer, assign, exchange, convey, pledge, hypothecate or grant a
security interest in the Purchaser Note or any interest represented thereby
shall be void and of no effect.
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ARTICLE XI
Confidentiality
Purchaser and Seller each acknowledges that the information
heretofore provided to them pursuant to the operation of this Agreement, is
highly confidential, proprietary information of Seller or Purchaser, as the case
may be. Purchaser and Seller each agrees that it will hold such information in
strict confidence and will not disclose any part of such information to any
person or entity, other than to its accountants and lawyers to the extent
necessary for the performance of their duties and as required by law and other
than to such other persons to the extent necessary, as determined by the
Purchaser in its sole discretion, to complete the transactions contemplated
hereunder and in the Sale and Servicing Agreement including the offering and
issuance of the Class A-1 Notes and Class A-2 Notes; provided, however, that
copies of this Agreement may be included as part of any filing made pursuant to
the Securities Act of 1933 and the Securities Exchange Act of 1934 and any
regulations promulgated thereunder. In furtherance of the foregoing, Purchaser
and Seller each covenants that it will adhere to its established procedures for
the maintenance of confidentiality with respect to such information. Purchaser
and Seller each further agrees that it will not distribute such information
within its own organization except to persons with a need to know such
information in connection with the transactions contemplated by this Agreement.
ARTICLE XII
Term
This Agreement shall terminate on the Termination Date.
ARTICLE XIII
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 except the Sponsor, the
Trust, the holders of the Class A-1 Notes and Class A-2 Notes and the Insurer.
Notwithstanding the foregoing, the Seller covenants and agrees that the
representations and warranties contained in this Agreement and the rights of the
Purchaser hereunder are intended to benefit the Trust, the holders of the Class
A-1 Notes and Class A-2 Notes and the Insurer. This Agreement may not be
assigned by any party hereto without the prior written consent of the other
party hereto except to the Trust.
ARTICLE XIV
Amendment; Waivers
This Agreement may be amended from time to time only by
written agreement of Seller and Purchaser with the prior written consent of the
Insurer, which consent shall not be
20
unreasonably withheld. Any forbearance, failure, or delay by a 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 a party of any right,
power or remedy hereunder shall not preclude the further exercise thereof. Every
right, power and remedy of a party shall continue in full force and effect until
specifically waived by it 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.
ARTICLE XV
Execution in Counterparts
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, and all of which shall constitute one
and the same instrument.
ARTICLE XVI
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 shall in no way be affected, prejudiced or disturbed thereby.
ARTICLE XVII
Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its rules
regarding conflict of laws.
ARTICLE XVIII
Notices
Any notices, consents, directions, demands and other
communications given under this Agreement (unless otherwise specified herein)
shall be in writing and shall be deemed to have been duly given when personally
delivered at or telecopied to the respective addresses or facsimile numbers, as
the case may be, set forth on the signature page hereof for Seller and
Purchaser, or to such other address or facsimile number as either party shall
give notice to the other party pursuant to this Section. Notices, consents,
etc., may also be effected by first class mail, postage prepaid sent to the
foregoing addresses and will be effective upon receipt by the intended
recipient.
21
ARTICLE XIX
Entire Agreement
This Agreement, including the Exhibits and Schedules hereto,
contains the entire agreement of the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements between
them, whether oral or written, of any nature whatsoever with respect to the
subject matter hereof.
ARTICLE XX
Indemnities
Without limiting any other rights which Purchaser or Seller
may have hereunder or under applicable law, and in addition to any other
indemnity provided hereunder, Seller hereby agrees to indemnify Purchaser and
its respective officers, directors, agents and employees (each, an "Indemnified
Party") from and against any and all Losses incurred by any of them relating to
or resulting from:
(1) any representation or warranty made by Seller (or any
officers, employees or agents of Seller) under or in connection with this
Agreement, any periodic report required to be furnished thereunder or any
other information or document delivered by Seller pursuant hereto, which
shall have been false or incorrect in any material respect when made or
deemed made;
(2) the failure by Seller to (a) comply with any applicable
law, rule or regulation with respect to any Purchase or (b) perform or
observe any material obligation or covenant hereunder; or
(3) the failure by Seller (if so requested by Purchaser) to
execute and properly file, or any delay in executing and properly filing,
financing statements or other similar instruments or documents under the
Uniform Commercial Code of any applicable jurisdiction or other applicable
laws with respect to the Mortgage Loans.
Promptly after receipt by an Indemnified Party under this
Article XX of notice of the commencement of any action, such Indemnified Party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Article XX, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any Indemnified Party
otherwise than under this Article XX. In case any such action is brought against
any Indemnified Party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the Indemnified
Party promptly after receiving the aforesaid notice from such Indemnified Party,
to assume the defense thereof, with counsel satisfactory to such Indemnified
Party; provided, however, that if the defendants in any such action include both
the Indemnified Party and the indemnifying party and the Indemnified Party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other Indemnified Parties that are different from
or additional to those available to the indemnifying party, the Indemnified
Party or
22
parties shall have the right to elect separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such Indemnified Party or parties. Upon receipt of notice from the indemnifying
party to such Indemnified Party of its election so to assume the defense of such
action and approval by the Indemnified Party of counsel, the indemnifying party
will not be liable for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof, unless (i) the
Indemnified Party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by you in
the case of Article XX, representing the Indemnified Parties under this Article
XX, who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the Indemnified Party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii).
ARTICLE XXI
RESPA Obligations
Seller agrees to discharge on Purchaser's behalf all
obligations, including, without limitation, all disclosure obligations, which
Purchaser may have under the Real Estate Settlement Procedures Act of 1974, as
amended, in connection with Purchaser's purchases of Mortgage Loans hereunder.
Purchaser agrees to provide Seller with such information as is reasonably
necessary for Seller to discharge such obligations and hereby appoints Seller as
its agent in its name for the purposes of, and only for the purposes of,
performing such obligations. Seller hereby agrees to indemnify Purchaser and its
respective officers, directors, agents and employees from any losses suffered by
any such party in connection with Seller's obligations under this Article XXI.
ARTICLE XXII
Survival
All indemnities and undertakings of Seller and Purchaser
hereunder shall survive the termination of this Agreement.
ARTICLE XXIII
Right of Set-off
Upon the occurrence of any event or circumstance which
requires Seller to make a payment hereunder, Purchaser is hereby authorized then
or at any time or times thereafter, without notice to Seller (any such notice
being expressly waived by Seller), to set-off and apply any and all deposits
(general or special, time or demand, provisional or final), at any time held
23
and other indebtedness at any time owing by Purchaser to or for the credit or
the account of Seller against any and all of the obligations of Seller now or
hereafter existing hereunder, irrespective of whether or not Purchaser shall
have made any demand hereunder. Purchaser agrees promptly to notify Seller after
any such set-off and application made by Purchaser; provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of Purchaser under this Article XXIII are in addition to other rights
and remedies which Purchaser may have.
ARTICLE XXIV
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
pursuant to Article XVIII hereof.
ARTICLE XXV
Submission to Jurisdiction; Waiver of Trial by Jury
With respect to any claim arising out of this Agreement each
party irrevocably submits to the exclusive jurisdiction of the courts of the
State of New York and the United States District Court located in the Borough of
Manhattan, City of New York, and each party irrevocably waives 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,
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in any inconvenient forum and further
irrevocably waives 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; provided that service of process is made as set
forth in Article XXIV hereof, or by any other lawful means. To the extent
permitted by applicable law, Purchaser and Seller each irrevocably waive all
right of trial by jury in any action, proceeding or counterclaim arising out of
or in connection with this Agreement or any matter arising hereunder.
ARTICLE XXVI
Construction
The headings in this Agreement are for convenience only and
are not intended to influence its construction. References to Articles,
Sections, Schedules and Exhibits in this Agreement are to the Articles, Sections
of and Schedules and Exhibits to this Agreement. The Schedules and Exhibits are
hereby incorporated into and form a part of this Agreement. In this Agreement,
the singular includes the plural, the plural the singular, the words "and" and
"or" are used in the conjunctive or disjunctive as the sense and circumstances
may require and the word "including" means "including, but not limited to."
Unless otherwise stated in this Agreement, in the computation of a period of
time from a specified date to a later specified date, the word
24
"from" means "from and including" and the words "to" and "until" each means "to
but excluding."
ARTICLE XXVII
Further Agreements
The Seller and the Purchaser each agree to execute and deliver
to the other such reasonable and appropriate additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement.
25
IN WITNESS WHEREOF, the Purchaser and the Seller have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the date first written above.
GREENPOINT MORTGAGE SECURITIES INC.,
as Purchaser
000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
GREENPOINT MORTGAGE FUNDING, INC.,
as Seller
000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
By: /s/ Xxxxxxx X. XxxXxxxxxx
----------------------------
Name: Xxxxxxx X. XxxXxxxxxx
Title: Executive Vice President and Chief
Financial Officer
[Mortgage Loan Purchase Agreement]
EXHIBIT A
FORM OF NON-NEGOTIABLE
GREENPOINT MORTGAGE SECURITIES INC.
PROMISSORY NOTE
December 22, 1999
EXCEPT TO THE EXTENT PROVIDED IN THE PURCHASE AGREEMENT REFERRED TO BELOW, THIS
PROMISSORY NOTE AND ANY INTEREST REPRESENTED HEREBY SHALL NOT BE TRANSFERRED,
ASSIGNED, EXCHANGED, CONVEYED, PLEDGED, HYPOTHECATED OR OTHERWISE THE SUBJECT OF
THE GRANT OF A SECURITY INTEREST AND ANY ATTEMPT TO TRANSFER, ASSIGN, EXCHANGE,
CONVEY, PLEDGE, HYPOTHECATE OR GRANT A SECURITY INTEREST IN THIS PROMISSORY NOTE
OR ANY INTEREST REPRESENTED HEREBY SHALL BE VOID AND OF NO EFFECT.
FOR VALUE RECEIVED, the undersigned, GREENPOINT MORTGAGE SECURITIES INC., a
Delaware corporation (the "Purchaser"), promises to pay to GREENPOINT MORTGAGE
FUNDING, INC., a California corporation (the "Seller"), on the terms and subject
to the conditions set forth herein and in the Purchase Agreement referred to
below, the aggregate unpaid Purchase Price of all assets purchased and to be
purchased by the Purchaser pursuant to the Purchase Agreement, provided that
such amount shall in no event exceed [$__________]. Such amount as shown in the
records of the Seller will be rebuttable presumptive evidence of the principal
amount owing under this Note.
1. Purchase and Sale Agreement. This Note is the Purchaser
Note described in, and is subject to the terms and conditions set forth in, that
certain Mortgage Loan Purchase Agreement dated as of December 1, 1999 (as the
same may be amended, supplemented, restated or otherwise modified in accordance
with its terms, the "Purchase Agreement"), between the Seller and the Purchaser.
Reference is hereby made to the Purchase Agreement for a statement of certain
other rights and obligations of the Purchaser and the Seller.
2. Definitions. Capitalized terms used (but not defined)
herein have the meanings ascribed thereto in the Purchase Agreement. In
addition, as used herein, the following terms have the following meanings:
"Bankruptcy Proceedings" has the meaning set forth in
clause (a) of paragraph 7 hereof."
"Final Maturity Date" means the date that falls one year
and one day after the Termination Date.
"Junior Liabilities" means all obligations of the Purchaser
to the Seller under this Note and under all similar Notes issued by the
Purchaser to the Seller in connection with any previous or future securitization
transactions.
A-1
"Senior Liabilities" means all obligations of the Purchaser
to the Trust and any other obligations of the Purchaser arising under or in
connection with the Sale and Servicing Agreement, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or thereafter
existing, or due or to become due on or before the Final Maturity Date.
"Subordination Provisions" means, collectively, clauses (a)
through (i) of paragraph 7 hereof.
3. Interest. Subject to the Subordination Provisions and
paragraph 10 hereof, the Purchaser promises to pay interest on the aggregate
unpaid principal amount of this Note outstanding on each day, at a variable rate
equal to the rate publicly announced by the Indenture Trustee from time to time
as its "prime lending rate."
4. Interest Payment Dates. Subject to the Subordination
Provisions, paragraph 10 hereof and Section 10.02 of the Purchase Agreement, the
Purchaser shall pay accrued interest on this Note on each Payment Date and on
the Final Maturity Date. The Purchaser also shall pay accrued interest on the
principal amount of each prepayment hereof on the date of each such prepayment.
5. Basis of Computation. Interest accrued hereunder shall be
computed for the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Subject to the Subordination
Provisions, any unpaid principal of this Note shall be paid on the Final
Maturity Date (or, if such date is not a Business Day, the next succeeding
Business Day). Subject to the Subordination Provisions, paragraph 10 hereof and
Section 10.02 of the Purchase Agreement, the principal amount of and accrued
interest on this Note may be prepaid on any Business Day without premium or
penalty.
7. Subordination Provisions. The Purchaser covenants and
agrees, and the Seller, by its acceptance of this Note, likewise covenants and
agrees, that the payment of all Junior Liabilities is hereby expressly
subordinated in right of payment to the payment and performance of the Senior
Liabilities to the extent and in the manner set forth in the following clauses
of this paragraph 7:
(a) (i) In the event of any dissolution, winding up,
liquidation, readjustment, reorganization or other similar event relating to the
Purchaser, whether voluntary or involuntary, partial or complete, and whether in
bankruptcy, insolvency, receivership or other similar proceedings, or upon an
assignment for the benefit of creditors, or any other marshalling of the assets
and liabilities of the Purchaser or any sale of all or substantially all of the
assets of the Purchaser except pursuant to the Sale and Servicing Agreement
(such proceedings being herein collectively called "Bankruptcy Proceedings"),
and (ii) on and after the occurrence of an Event of Default, the Senior
Liabilities shall first be paid and performed in full and in cash before the
Seller shall be entitled to receive and to retain any payment or distribution in
respect of the Junior Liabilities. In order to implement the foregoing: (x) all
payments and distributions of any kind or character in respect of the Junior
Liabilities to which the Seller would be entitled except for this clause (a)
shall be made directly to the Indenture Trustee (for the benefit of the
A-2
Noteholders); and (y) the Seller hereby irrevocably agrees that the Indenture
Trustee (on behalf of the Noteholders), in the name of the Seller or otherwise,
may demand, xxx for, collect, receive and receipt for any and all such payments
or distributions, and file, prove and vote or consent in any such Bankruptcy
Proceedings with respect to any and all claims of the Seller relating to the
Junior Liabilities, in each case until the Senior Liabilities shall have been
paid and performed in full and in cash.
(b) following the occurrence of any of the events described in
clause (a)(i) or (ii), in the event that the Seller receives any payment or
other distribution of any kind or character from the Purchaser or from any other
source whatsoever, in respect of the Junior Liabilities, such payment or other
distribution shall be received in trust for the Indenture Trustee and shall be
turned over by the Seller to the Indenture Trustee (for the benefit of the
Noteholders) forthwith. All payments and distributions received by the Indenture
Trustee in respect of this Note, to the extent received in or converted into
cash, may be applied by the Indenture Trustee (for the benefit of the
Noteholders) first to the payment of any and all reasonable expenses (including
reasonable attorneys' fees and legal expenses) paid or incurred by the Indenture
Trustee or the Noteholders in enforcing these Subordination Provisions, or in
endeavoring to collect or realize upon the Junior Liabilities, and any balance
thereof shall, solely as between the Seller and the Noteholders, be applied by
the Indenture Trustee toward the payment of the Senior Liabilities in a manner
determined by the Indenture Trustee to be in accordance with the Indenture; but
as between the Purchaser and its creditors, no such payments or distributions of
any kind or character shall be deemed to be payments or distributions in respect
of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior
Liabilities, the Seller shall be subrogated to the rights of the Indenture
Trustee to receive payments or distributions from the Purchaser that are
applicable to the Senior Liabilities until the Junior Liabilities are paid in
full.
(d) These Subordination Provisions are intended solely for the
purpose of defining the relative rights of the Seller, on the one hand, and the
Indenture Trustee (on behalf of Noteholders), on the other hand. Nothing
contained in these Subordination Provisions or elsewhere in this Note (subject
to paragraph 10 hereof) is intended to or shall impair, as between the
Purchaser, its creditors (other than the Noteholders) and the Seller, the
Purchaser's obligation, which is unconditional and absolute, to pay the Junior
Liabilities as and when the same shall become due and payable in accordance with
the terms hereof (subject to paragraph 10 hereof) and of the Purchase Agreement
or to affect the relative rights of the Seller and creditors of the Purchaser
(other than the Noteholders).
(e) The Seller shall not, until the Senior Liabilities have
been finally paid and performed in full and in cash, (i) cancel, waive, forgive,
transfer or assign, or commence legal proceedings to enforce or collect, or
subordinate to any obligation of the Purchaser, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, or now or
thereafter existing, or due or to become due (other than the Senior
Liabilities), the Junior Liabilities or any rights in respect hereof or (ii)
convert the Junior Liabilities into an equity interest in the Purchaser, unless,
in the case of each of clauses (i) and (ii) above, the Seller shall have
received the prior written consent of the Indenture Trustee and the Insurer in
each case.
A-3
(f) The Seller shall not, except without the advance written
consent of the Indenture Trustee and the Insurer, commence, or join with any
other Person in commencing, any Bankruptcy Proceedings with respect to the
Purchaser until at least one year and one day have passed since the Termination
Date.
(g) If, at any time, any of the payment (in whole or in part)
made with respect to any Senior Liabilities is rescinded or must be restored or
returned by the Indenture Trustee or Noteholders (whether in connection with any
Bankruptcy Proceedings or otherwise), these Subordination Provisions shall
continue to be effective or shall be reinstated, as the case may be, as though
such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders) may, from
time to time, with the consent of the Insurer without notice to the Seller, and
without waiving any of its rights under these Subordination Provisions, take any
or all of the following actions: retain or obtain an interest in any property to
secure any of the Senior Liabilities; (ii) retain or obtain the primary or
secondary obligations of any other obligor or obligors with respect to any of
the Senior Liabilities; (iii) extend or renew for one or more periods (whether
or not longer than the original period), alter or exchange any of the Senior
Liabilities, or release or compromise any obligation of any nature with respect
to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or
otherwise modify the Sale and Servicing Agreement or any related document; and
(v) release its security interest in or surrender, release or permit any
substitution or exchange for all or any part of any rights or property securing
any of the Senior Liabilities, or extend or renew for one or more periods
(whether or not longer than the original period) or release, compromise, alter
or exchange any obligations of any nature of any obligor with respect to any
such rights or property.
(i) The Seller hereby waives: (i) notice of acceptance of
these Subordination Provisions by any of the Noteholders, (ii) notice of the
existence, creation, non-payment or non-performance of all or any of the Senior
Liabilities; and (iii) all diligence in enforcement, collection or protection
of, or realization upon, the Senior Liabilities, or any thereof, or any security
therefor.
(j) These Subordination Provisions constitute a continuing
offer from the Purchaser to all Persons who become the holders of, or who
continue to hold, Senior Liabilities; and these Subordination Provisions are
made for the benefit of the Noteholders, and the Indenture Trustee may proceed
to enforce such provisions on behalf of each of such Persons.
8. General. No failure or delay on the part of the Seller in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
No amendment, modification or waiver of, or consent with respect to, any
provision of this Note shall in any event be effective unless (a) the same shall
be in writing and signed and delivered by the Purchaser and the Seller, and (b)
all consents required for such actions under the Purchase Agreement and the Sale
and Servicing Agreement shall have been received by the appropriate Persons. The
rights and remedies granted hereunder to the Indenture Trustee and the
Noteholders are subject to exercise as provided in the Purchase Agreement and
the Sale and Servicing Agreement.
A-4
9. Limitation on Interest. Notwithstanding anything in this
Note to the contrary, the Purchaser shall never be required to pay unearned
interest on any amount outstanding hereunder, and shall never be required to pay
interest on the principal amount outstanding hereunder at a rate in excess of
the maximum interest rate that may be contracted for, charged or received
without violation of applicable federal or state law.
10. Acknowledgment. The Seller acknowledges and agrees that it
has no rights to payment under this Note, and will not make any claim for
payment hereunder, unless funds are available for payment by the Purchaser in
excess of amounts due and payable by it at the time under the Sale and Servicing
Agreement and under all similar notes issued by the Purchaser to the Seller in
connection with any previous or future securitizations.
11. No Negotiation. This Note is not negotiable.
12. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES.
13. Captions. Paragraph captions used in this Note are
provided solely for convenience of reference only and shall not affect the
meaning or interpretation of any provision of this Note
GREENPOINT MORTGAGE SECURITIES INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
A-5
SCHEDULE I
MORTGAGE LOAN SCHEDULE
[On file with Indenture Trustee]
EXHIBIT B
Mortgage Loan Purchase Agreement
[Form of Purchase Request]
GreenPoint Mortgage Securities Inc.
000 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Pursuant to Section 2.04 of the Mortgage Loan Purchase
Agreement dated as of December 1, 1999 between GreenPoint Mortgage Funding, Inc.
and you, we hereby offer to sell, transfer and assign to you all of GreenPoint
Mortgage Funding, Inc.'s right, title and interest in and to the Subsequent
Mortgage Loans identified in the attached schedule on the following date (the
"Purchase Date"): ____________, including any Additional Balances thereto.
Please acknowledge your acceptance of such offer by executing
this Purchase Request in the space provided below and returning it to GreenPoint
Mortgage Funding, Inc. at ___________ by facsimile with an original acceptance
to follow by first class mail.
The failure of GreenPoint Mortgage Securities Inc. to return
this Purchase Request after execution by GreenPoint Mortgage Securities Inc., to
GreenPoint Mortgage Funding, Inc. in the manner provided above within three
Business Days prior to the Purchase Date (five business days, if this Purchase
Request was received by you at least two calendar weeks prior to the
above-referenced Purchase Date) shall constitute an acceptance of the offer
communicated hereby.
Very truly yours,
GreenPoint Mortgage Funding, Inc.
By:
------------------------------
Name:
Title:
Agreed to and acknowledged
this ____ day of, ____________, _____.
GreenPoint Mortgage Securities Inc.
By:
-----------------------------------
Name:
Title:
