EXHIBIT 10.5.1
WHOLE LOAN PURCHASE AND SALE AGREEMENT
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
-----------------------------------------
among
AMERICAN HOME MORTGAGE CORP.
Seller,
COLUMBIA NATIONAL, INCORPORATED
Seller
and
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
Purchaser
DATED AS OF January 1, 2004
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TABLE OF CONTENTS
Page
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Section 1.
Definitions..............................................-1-
Section 2.
Procedures for
Purchases of Mortgage Loans...............-8-
Section 3.
Sale of Mortgage Loans
to Takeout Investor...............-8-
Section 4.
Completion
Fee..........................................-11-
Section 5.
Servicing of the
Mortgage Loans.........................-12-
Section 6.
Trade
Assignments.......................................-13-
Section 7.
Transfers of Beneficial Interest in Mortgage
Loans by Purchaser......................................-13-
Section 8.
Record Title to
Mortgage Loans; Intent of Parties;
Security Interest.......................................-13-
Section 9.
Representations and
Warranties..........................-14-
Section
10. Covenants of
Sellers....................................-21-
Section
11.
Term....................................................-24-
Section
12. Exclusive Benefit of Parties;
Assignment................-24-
Section
13. Amendments; Waivers; Cumulative
Rights..................-24-
Section
14. Execution in
Counterparts...............................-24-
Section
15. Effect of Invalidity of
Provisions......................-24-
Section
16. Governing
Law...........................................-25-
Section
17.
Notices.................................................-25-
Section
18. Entire
Agreement........................................-25-
Section
19. Costs of
Enforcement....................................-25-
Section
20. Consent to
Service......................................-25-
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Section
21. Submission to
Jurisdiction..............................-25-
Section
22. Jurisdiction Not
Exclusive..............................-25-
Section
23. WAIVER OF JURY
TRIAL....................................-25-
Section
24.
Construction............................................-26-
Section
25. Further
Assurances......................................-26-
Section
26. Joint and Several
Liability.............................-27-
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EXHIBITS
Exhibit A Trust Receipt
Exhibit B-1 Warehouse Lender's Release
Exhibit B-2 Warehouse Lender's Wire
Instructions
Exhibit C-1 Seller's Release
Exhibit C-2 Seller's Wire Instructions
Exhibit D-1 Trade Assignment
Exhibit D-2 Trade Assignment (Blanket)
Exhibit E Purchaser's Wire
Instructions
Exhibit F Form of Confirmation
Exhibit G Notice of Rejection of Trade
Assignment
Exhibit H Settlement Modification
Letter
Exhibit I Seller's Officer's
Certificate
Exhibit J Seller's Officer's
Certificate
Exhibit K List of Conduits
Exhibit L Mortgage Loan Schedule
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MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement ("Agreement"),
dated
as of the date set forth on the cover page
hereof, is by and between Greenwich
Capital Financial Products, Inc., having an
address at 600 Steamboat Road,
Greenwich, Connecticut 06830 ("Purchaser")
and American Home Mortgage Corp.,
having an address at 520 Broadhollow Road,
Melville, New York 11747 ("AHMC") and
Columbia National, Incorporated, having an
address at 7142 Columbia Gateway
Drive, Columbia, MD 21046 ("CNI" and
together with AHMC, each individually, a
"Seller" and together, the "Sellers").
PRELIMINARY STATEMENT
Sellers may, in their sole discretion, offer to sell to
Purchaser
from time to time a 100% undivided
ownership interest in certain Mortgage Loans,
and Purchaser, in its sole discretion, may
agree to purchase such Mortgage Loans
from Sellers on a servicing-released basis
in accordance with the terms and
conditions set forth in this Agreement. The
related Seller, subject to the terms
hereof, will cause each Mortgage Loan to be
purchased by Takeout Investor.
During the period from the purchase of a
Mortgage Loan to the sale of the
Mortgage Loan to Takeout Investor, the
related Seller shall interim service such
Mortgage Loan for the benefit of Purchaser
pursuant to the terms of this
Agreement.
The parties hereto hereby agree as follows:
Section 1. Definitions.
Capitalized terms used but not defined herein shall have the
meanings set forth in the related Custodial
Agreement. As used in this
Agreement, the following terms shall have
the following meanings:
"Act of Insolvency": With respect to Sellers, (i) the filing of
a
petition, commencing, or authorizing the
commencement of any case or proceeding
under any bankruptcy, insolvency,
reorganization, liquidation or similar law
relating to the protection of creditors, or
suffering any such petition or
proceeding to be commenced by another; (ii)
seeking the appointment of a
receiver, trustee, custodian or similar
official for either Seller or an
Affiliate or any substantial part of the
property of either, (iii) the
appointment of a receiver, conservator, or
manager for either Seller or an
Affiliate by any governmental agency or
authority having the jurisdiction to do
so; (iv) the making or offering by either
Seller or an Affiliate of a concession
with its creditors or a general assignment
for the benefit of creditors, (v) the
admission by either Seller or an Affiliate
of either Seller's or such
Affiliate's inability to pay its debts or
discharge its obligations as they
become due or mature; or (vi) any
governmental authority or agency or any
person, agency or entity acting or
purporting to act under governmental
authority shall have taken any action to
condemn, seize or appropriate, or to
assume custody or control of, all or any
substantial part of the property of
either Seller or of any of its Affiliates,
or shall have taken any action to
displace the management of either Seller or
of any of its Affiliates or to
curtail its authority in the conduct of the
business of either Seller or of any
of its Affiliates.
"Affiliate": With respect to any specified Person, any other
Person
controlling or controlled by or under
common control with such specified Person.
For the purposes of this definition,
"control" means the power to direct the
management and policies of such Person,
directly or indirectly, whether through
the ownership of voting equity, by contract
or otherwise.
"Agency Guide": The FHLMC Guide, the FNMA Guide or the GNMA
Guide,
as applicable.
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"Agency Program": The FHLMC Program, the FNMA Program or the
GNMA
Program, as applicable.
"Applicable Agency": GNMA, FNMA or FHLMC, as applicable.
"Appraised Value": With respect to any Mortgaged Property, the
value
thereof set forth in an appraisal made for
the originator of the Mortgage Loan
at the time of origination of the Mortgage
Loan by an appraiser who met the
minimum requirements of FNMA and FHLMC and
which appraisal has been made in
accordance with and satisfies the
provisions of the Financial Institutions
Reform, Recovery, and Enforcement Act of
1989.
"Assignee": As defined in Section 7.
"Business Day": Any day other than (a) a Saturday, Sunday or
other
day on which banks located in The City of
New York, New York are authorized or
obligated by law or executive order to be
closed or (b) any day on which
Purchaser or the Custodians are authorized
or obligated by law or executive
order to be closed.
"Cash Window Transaction": A transaction initiated by the
related
Seller's delivery of a Request for
Certification which identifies an Agency as
the Takeout Investor.
"Collateral": As defined in Section 8(c).
"Commitment Amount": The aggregate outstanding principal amount
of
Mortgage Loans to be purchased pursuant to
a Takeout Commitment. If the
Commitment Amount is expressed as a fixed
amount plus or minus a percentage in
the related Takeout Confirmation, then the
amount required to be delivered by
the related Seller shall be the minimum
amount of such range and the amount
required to be purchased by Takeout
Investor shall be the maximum amount of such
range.
"Commitment Date": The date set forth in a Takeout Confirmation
as
the commitment date.
"Commitment Guidelines": The guidelines, if any, issued by
Takeout
Investor regarding the issuance of Takeout
Commitments, as amended from time to
time by Takeout Investor.
"Commitment Number": With respect to a Takeout Commitment, the
number identified on the Takeout
Confirmation as the commitment number.
"Completion Fee": With respect to each Mortgage Loan Pool, an
amount
equal to the Discount plus the Net Carry
Adjustment, less any reduction pursuant
to Section 4(c), which amount shall be
payable to the related Seller by
Purchaser as compensation to the related
Seller for its services hereunder in
connection with the purchase of a Mortgage
Loan Pool.
"Conduit": The list of investors attached hereto as Exhibit K,
which
may be modified from time to time by
Purchaser in its sole discretion and which
list shall be delivered to the Sellers
promptly after each such modification.
"Conduit Transactions": A transaction initiated by the related
Seller's delivery of a Request for
Certification which identifies a Conduit as
the Takeout Investor.
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"Confirmation": A written confirmation of Purchaser's intent to
purchase a Mortgage Loan Pool, which
written confirmation shall be delivered to
the related Seller substantially in the
form attached hereto as Exhibit F.
"Credit File": All Mortgage Loan papers and documents required to
be
maintained pursuant to the Sale Agreement,
and all other papers and records of
whatever kind or description whether
developed or originated by Sellers or
others, required to document or service the
Mortgage Loan; provided, however,
that such Mortgage Loan papers, documents
and records shall not include any
Mortgage Loan papers, documents or records
which are contained in the Custodial
File.
"Cure Date": With respect to a Mortgage Loan, the date occurring
15
Business Days after the expiration of the
Takeout Commitment.
"Custodial Account": As defined in Section 5(b).
"Custodial Agreements": The custodial agreement, dated as of
January
1, 2004, among Sellers, Purchaser and
Residential Funding Corporation and the
custodial agreement, dated as of January 1,
2004, among Sellers, Purchaser and
Deutsche Bank National Trust Company.
"Custodial File": With respect to each Mortgage Loan, the
documents
that are required to be delivered to the
related Custodian pursuant to the
related Custodial Agreement.
"Custodian": The Custodian whose name is set forth on the cover
page
of the related Custodial Agreement and its
permitted successors thereunder.
"Cut-off Date": With respect to a Mortgage Loan, the last day of
a
month on which the Settlement Date can
occur if accrued interest for such month
is to be collected by Takeout Investor.
"Defective Mortgage Loan": With respect to any Mortgage Loan,
either
(i) the Document File does not contain a
document required to be contained
therein, (ii) a document within a Document
File is, in the reasonable judgment
of Purchaser or Takeout Investor, defective
or inaccurate in any material
respect, as determined upon evaluation of
the Document File against the
requirements of the Sale Agreement,(iii) a
document in the Document File is not
legal, valid and binding, or (iv) as to
such Mortgage Loan, one of the
representations and warranties in Section 9
hereof has been breached and such
breach materially and adversely affects the
value of such Mortgage Loan or
Purchaser's interest in such Mortgage
Loan.
"Discount": With respect to Mortgage Loan Pool sold by the
related
Seller to Purchaser, the amount set forth
on the related Confirmation as the
Discount.
"Document File": The Credit File and the Custodial File.
"Due Date": The day of the month on which the Monthly Payment is
due
on a Mortgage Loan.
"Electronic Agent": Shall have the meaning assigned to such term
in
Section 2 of the Electronic Tracking
Agreement.
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"Electronic Tracking Agreement": The Electronic Tracking
Agreement,
dated as of the date hereof, among the
Purchaser, the Sellers, the Electronic
Agent and MERS, as the same shall be
amended, supplemented or otherwise modified
from time to time in accordance with its
terms.
"Exhibit B-1 Letter": As defined in Section 2(a).
"Exhibit C-1 Letter": As defined in Section 2(a).
"Expiration Date": With respect to any Takeout Commitment, the
expiration date thereof.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC": Freddie Mac or any successor thereto.
"FNMA": Fannie Mae or any successor thereto.
"GAAP": Generally accepted accounting principles as in effect
from
time to time in the United States of
America.
"GNMA": Government National Mortgage Association or any
successor
thereto.
"HUD": United States Department of Housing and Urban Development
or
any successor thereto.
"Indebtedness" shall mean, for any Person: (a) obligations
created,
issued or incurred by such Person for
borrowed money (whether by loan, the
issuance and sale of debt securities or the
sale of property to another Person
subject to an understanding or agreement,
contingent or otherwise, to repurchase
such property from such Person); (b)
obligations of such Person to pay the
deferred purchase or acquisition price of
property or services, other than trade
accounts payable (other than for borrowed
money) arising, and accrued expenses
incurred, in the ordinary course of
business so long as such trade accounts
payable are payable within 90 days of the
date the respective goods are
delivered or the respective services are
rendered; (c) Indebtedness of others
secured by a Lien on the property of such
Person, whether or not the respective
Indebtedness so secured has been assumed by
such Person; (d) obligations
(contingent or otherwise) of such Person in
respect of letters of credit or
similar instruments issued or accepted by
banks and other financial institutions
for account of such Person; (e) all
obligations of such Person to pay rent or
other amounts under a lease of (or other
agreement conveying the right to use)
property to the extent such obligations are
required to be classified and
accounted for as a capital lease on a
balance sheet of such Person under GAAP,
and, for purposes of this Agreement, the
amount of such obligations shall be the
capitalized amount thereof, determined in
accordance with GAAP; (f) obligations
of such Person under repurchase agreements
or like arrangements; (g)
Indebtedness of others guaranteed by such
Person; (h) all obligations of such
Person incurred in connection with the
acquisition or carrying of fixed assets
by such Person; (i) Indebtedness of general
partnerships of which such Person is
a general partner; and (j) any other
indebtedness of such Person by a note,
bond, debenture or similar instrument.
"Losses": Any and all actual losses, claims, damages, liabilities
or
expenses (including lost interest and
reasonable attorney's fees) incurred by
any Person specified.
"MERS": Mortgage Electronic Registration Systems, Inc., a
Delaware
corporation, or any successor in interest
thereto.
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"MERS Mortgage Loan": Any Mortgage Loan as to which the related
Mortgage or assignment of Mortgage has been
recorded in the name of MERS, as
agent for the holder from time to time of
the Mortgage Note and which is
identified as a MERS Mortgage Loan on the
related schedule attached to the
related Participation Certificate.
"MERS System": The system of recording transfers of Mortgages
electronically maintained by MERS.
"MIN": The mortgage identification number of Mortgage Loans
registered with MERS on the MERS
System.
"Monthly Payment": The scheduled monthly payment of principal
and
interest on a Mortgage Loan.
"Mortgage": The mortgage, deed of trust or other instrument
creating
a first lien on an estate in fee simple in
real property securing a Mortgage
Note.
"Mortgage Interest Rate": The annual rate of interest borne on
a
Mortgage Note.
"Mortgage Loan": A mortgage loan which is subject to this
Agreement,
and which satisfies the requirements of the
Sale Agreement as the same may be
modified from time to time.
"Mortgage Loan Pool": A group of Mortgage Loans purchased by
Purchaser hereunder and subject to a single
Confirmation.
"Mortgage Loan Schedule": The schedule of Mortgage Loans,
attached
hereto as Exhibit L, delivered to Purchaser
by the related Seller on each
Purchase Date in a form, and containing
information, acceptable to Purchaser.
"Mortgage Note": The note or other evidence of the indebtedness of
a
Mortgagor secured by a Mortgage.
"Mortgaged Property": The property subject to the lien of the
Mortgage securing a Mortgage Note.
"Mortgagor": The obligor on a Mortgage Note.
"NCUA": National Credit Union Administration, or any successor
thereto.
"Net Carry Adjustment": As defined in Section 4(b).
"Net Worth" shall mean, with respect to any Person, the excess
of
total assets of such Person, over total
liabilities of such Person, determined
in accordance with GAAP.
"Notice of Rejection of Trade Assignment": With respect to any
Mortgage Loan that Purchaser elects not to
purchase, a notification by Purchaser
to Takeout Investor in the form of Exhibit
G.
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"OTS": Office of Thrift Supervision or any successor thereto.
"Parent Company": A corporation or other entity owning at least
50%
of the outstanding shares of voting stock
of either Seller.
"Pass-Through Rate": With respect to each Mortgage Loan Pool
purchased by Purchaser hereunder, the rate
at which interest from the Mortgage
is passed through to Purchaser which
initially shall be the rate of interest
specified in the related Confirmation as
the Pass-Through Rate, subject to
adjustment in the manner agreed to by
Purchaser and the related Seller.
"Person": Any individual, corporation, company, voluntary
association, partnership, joint venture,
limited liability company, trust,
unincorporated association or government
(or any agency, instrumentality or
political subdivision thereof).
"Price Adjustment": With respect to a Takeout Commitment, the
incremental percentage by which the Trade
Price is adjusted by applying the
appropriate formula set forth in a Price
Adjustment summary sheet delivered by
Purchaser to the related Seller which Price
Adjustment summary sheet may be
amended from time to time by Purchaser's
delivery to the related Seller of a new
Price Adjustment summary sheet.
"Purchase Date": With respect to any Mortgage Loan Pool purchased
by
Purchaser hereunder, the date of payment
thereof by Purchaser to the related
Seller of the Purchase Price.
"Purchase Price": With respect to each Mortgage Loan Pool
purchased
by Purchaser hereunder, an amount equal to
the Trade Principal less an amount
equal to the product of the Trade Principal
multiplied by the Discount.
"Purchaser": Greenwich Capital Financial Products, Inc. and its
successors in interest, including, but not
limited to, a party to whom a Trust
Receipt is assigned as provided hereunder
and in the related Custodial
Agreement.
"Purchaser's Wire Instructions": The wire instructions set forth
in
a letter in the form of Exhibit E.
"Sale Agreement": The agreement providing for the purchase by
Takeout Investor of Mortgage Loans from the
related Seller.
"SEC": The Securities and Exchange Commission or any successor
thereto.
"Sellers": The Sellers whose names are set forth on the cover
page
hereof and their permitted successors
hereunder.
"Seller's Wire Instructions": The wire instructions set forth in
a
letter in the form of Exhibit C-2.
"Settlement Date": With respect to any Mortgage Loan, the date
of
payment thereof by Takeout Investor to
Purchaser of the Takeout Proceeds.
"Settlement Modification Letter": A letter in the form of Exhibit
H.
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"Security": A GNMA Security, a FNMA Security or a FHLMC
Security.
"Successor Servicer": An entity designated by Purchaser, with
notice
provided in conformity with Section 17, to
replace the related Seller as issuer
and servicer, mortgagee or the
seller/servicer of the Mortgage Loans evidenced
by a Trust Receipt.
"Takeout Commitment": A commitment of the related Seller to sell
one
or more Mortgage Loans to Takeout Investor
and of Takeout Investor to purchase
one or more Mortgage Loans from the related
Seller.
"Takeout Confirmation": The written notification to the related
Seller from Takeout Investor containing all
of the relevant details of the
Takeout Commitment, which notification may
take the form of a trade
confirmation.
"Takeout Investor": An Agency or a Conduit, as applicable.
"Takeout Proceeds": With respect to any Mortgage Loan Pool, the
related Trade Principal plus accrued
interest as calculated in accordance with
Section 4(c), as amended by any related
Settlement Modification Letter accepted
by Purchaser.
"Tangible Net Worth" shall mean, with respect to any Person, as
of
any date of determination, the consolidated
Net Worth of such Person and its
subsidiaries, less the consolidated net
book value of all assets of such Person
and its subsidiaries (to the extent
reflected as an asset in the balance sheet
of such Person or any subsidiary at such
date) which will be treated as
intangibles under GAAP, including, without
limitation, such items as deferred
financing expenses, net leasehold
improvements, good will, trademarks, trade
names, service marks, copyrights, patents,
licenses and unamortized debt
discount and expense.
"Third Party Underwriter": Any third party, including but not
limited to a mortgage loan pool insurer,
who underwrites the Mortgage Loan(s)
prior to the purchase by Purchaser of the
related Mortgage Loan Pool.
"Third Party Underwriter's Certificate": A certificate issued by
a
Third Party Underwriter with respect to a
Mortgage Loan, certifying that such
Mortgage Loan complies with its
underwriting requirements.
"Total Indebtedness" shall mean with respect to any Person, for
any
period, the aggregate Indebtedness of such
Person and its subsidiaries during
such period, less the amount of any
nonspecific consolidated balance sheet
reserves maintained in accordance with
GAAP.
"Trade Assignment": The assignment by the related Seller to
Purchaser of the related Seller's rights
under a specific Takeout Commitment, in
the form of Exhibit D-1, or of the related
Seller's rights under all Takeout
Commitments, in the form of Exhibit
D-2.
"Trade Price": The trade price set forth on a Takeout
Commitment
less any applicable Price Adjustment.
"Trade Principal": With respect to any Mortgage Loan Pool, the
aggregate outstanding principal balance of
such Mortgage Loan multiplied by a
percentage equal to the Trade Price.
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"Trust Receipt": A trust receipt issued by the related
Custodian
evidencing the Mortgage Loan Pool it holds,
in the form attached hereto as
Exhibit A, and delivered to Purchaser by
such Custodian in accordance with
Section 2 hereof.
"Warehouse Lender": Any lender providing financing to the
related
Seller for the purpose of originating or
purchasing Mortgage Loans which prior
to the Purchase Date has a security
interest in such Mortgage Loans as
collateral for the obligations of the
related Seller to such lender.
"Warehouse Lender's Wire Instructions": The wire instructions
set
forth in a letter in the form of Exhibit
B-2.
Section 2. Procedures for Purchases of Mortgage Loans.
(a) Purchaser may, in its sole discretion, from time to time,
purchase one or more Mortgage Loan Pools
from Sellers. Prior to Purchaser's
actual purchase of any Mortgage Loan Pool,
Purchaser shall have received from
the related Custodian (i) by facsimile, a
Notice of Intent to Issue Trust
Receipt, (ii) by facsimile, the Trust
Receipt covering all Mortgage Loans
(including the Mortgage Loan Pool being
purchased) relating to Cash Window
Transactions or Conduit Transactions, as
applicable, fully completed and
authenticated by the related Custodian,
with the original Trust Receipt sent by
overnight mail to arrive on the Business
Day after the day it is sent by
facsimile, (iii) a copy of the Takeout
Confirmation related to the Mortgage
Loan(s) in such Mortgage Loan Pool,
together with a Trade Assignment in the form
of Exhibit D-1 or Exhibit D-2, executed by
the related Seller and Takeout
Investor and (iv) an original letter in the
form of Exhibit B-1 (an "Exhibit B-1
Letter") from the applicable Warehouse
Lender (if any), or an original letter in
the form of Exhibit C-1 (an "Exhibit C-1
Letter") in the event that there is no
Warehouse Lender.
(b) Simultaneously with the payment by Purchaser of the
Purchase
Price, in accordance with the Warehouse
Lender's Wire Instructions or the
related Seller's Wire Instructions, as
applicable, with respect to a Mortgage
Loan Pool, the related Seller hereby
conveys to Purchaser all of the related
Seller's right, title and interest in and
to the related Mortgage Loan(s) free
and clear of any lien, claim or
encumbrance. Notwithstanding the satisfaction by
the related Seller of the conditions
specified in this Section 2, Purchaser is
not obligated to purchase any Mortgage
Loans offered to it hereunder.
(c) If Purchaser elects to purchase any Mortgage Loan Pool,
Purchaser shall pay the amount of the
Purchase Price for such Mortgage Loan Pool
by wire transfer of immediately available
funds in accordance with the Warehouse
Lender's Wire Instructions or if there is
no Warehouse Lender, the related
Seller's Wire Instructions. Upon such
payment and not otherwise, Purchaser shall
be deemed to have accepted the related
Trade Assignment. Sellers shall not offer
for sale to Purchaser any Mortgage Loan as
to which the Expiration Date of the
related Takeout Commitment is two (2)
Business Days or less following the
Purchase Date.
(d) In the event that Purchaser rejects a Mortgage Loan for
purchase
for any reason and/or does not transmit the
applicable Purchase Price, (i) the
Trust Receipt delivered by the related
Custodian to Purchaser in anticipation of
such purchase shall automatically be null
and void and the previously existing
Trust Receipt for that type of transaction
shall be in full force and effect,
(ii) Purchaser shall not consummate the
transactions contemplated in the
applicable Takeout Confirmation and shall
promptly deliver to Takeout Investor
(with a copy to the related Seller and the
related Custodian) a Notice of
Rejection of Trade Assignment, provided,
however, that failure of Purchaser to
give such notice shall not affect the
rejection by Purchaser of the Trade
Assignment, and (iii) if Purchaser shall
nevertheless receive any portion of the
related
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Takeout Proceeds, Purchaser shall promptly
pay such Takeout Proceeds to the
related Seller in accordance with the
related Seller's Wire Instructions.
(e) The terms and conditions of the purchase of each Mortgage
Loan
Pool shall be as set forth in this
Agreement.
Section 3. Sale of Mortgage Loans to Takeout Investor.
(a) With respect to Mortgage Loan(s) that Purchaser has elected
to
purchase, Purchaser may, at its option,
either (i) instruct the related
Custodian to deliver to Takeout Investor,
in accordance with Takeout Investor's
instructions, the Custodial File in respect
of such Mortgage Loans, in the
manner and at the time set forth in the
related Custodial Agreement, or (ii)
provide for the delivery of the Custodial
File through an escrow arrangement
satisfactory to Purchaser and Takeout
Investor. The related Seller shall, within
ten (10) Business Days following the
Purchase Date, but in no event later than
two (2) Business Days prior to the related
Expiration Date, deliver to Takeout
Investor the related Credit File and
thereafter any and all additional documents
reasonably requested by Takeout Investor to
enable Takeout Investor to purchase
such Mortgage Loan(s) on or before the
related Expiration Date.
(b) Except when Purchaser has accepted a Settlement
Modification
Letter, unless the Takeout Proceeds are
received by Purchaser (in immediately
available funds in accordance with
Purchaser's Wire Instructions) with respect
to the Mortgage Loans in a Mortgage Pool,
on or before the related Cure Date,
the Completion Fee relating to such
Mortgage Pool shall not be payable until the
earlier to occur of (1) the date of receipt
by Purchaser of the Takeout Proceeds
and, (2) the satisfaction by the related
Seller of its obligations pursuant to
the exercise by Purchaser of any remedial
election authorized by this Section 3.
Upon receipt by Purchaser, prior to the
Cure Date, of a Settlement Modification
Letter, duly executed by Takeout Investor
and the related Seller, Purchaser may,
at its election, agree to the postponement
of the Settlement Date and such other
matters as are set forth in the Settlement
Modification Letter. If Purchaser
elects to accept a Settlement Modification
Letter, Purchaser shall, not later
than two (2) Business Days after receipt of
such Settlement Modification Letter
execute the Settlement Modification Letter
and send, via facsimile, copies of
such fully executed Settlement Modification
Letter to the related Seller and
Takeout Investor. Upon execution by
Purchaser of a Settlement Modification
Letter, Purchaser shall recalculate the
amount of the Completion Fee, if any,
due to the related Seller using the new
terms included in the Settlement
Modification Letter and shall pay to the
related Seller, not later than two (2)
Business Days after Takeout Investor's
purchase of the related Mortgage Loans
pursuant to such Settlement Modification
Letter, the amount of such recalculated
Completion Fee.
(c)(1) If a breach by Sellers of this Agreement results in any
Mortgage Loan being a Defective Mortgage
Loan at the time of the delivery of the
related Trust Receipt to Purchaser and in
Purchaser's sole judgment the defects
in such Mortgage Loan will not be cured (or
in fact are not cured) by the
related Seller prior to the Cure Date, or
in the event that the first Monthly
Payment due on the Mortgage Loan following
the Purchase Date is not made within
30 days of its Due Date, Purchaser, at its
election, may require that the
related Seller, upon receipt of notice from
Purchaser of its exercise of such
right, either (i) repurchase Purchaser's
ownership interest in such Mortgage
Loan by remitting to Purchaser within one
(1) Business Day thereafter (in
immediately available funds in accordance
with Purchaser's Wire Instructions)
the amount paid by Purchaser for such
Mortgage Loan plus interest at the
Pass-Through Rate on the principal amount
thereof from the date of Purchaser's
purchase of the related Mortgage Loan Pool
to the date of such repurchase or
(ii) deliver to the related Custodian a
Mortgage Loan in exchange for such
Mortgage Loan, which newly delivered
Mortgage Loan shall be in all respects
acceptable to Purchaser in Purchaser's
reasonable discretion. If the aggregate
principal balance of all Mortgage Loan(s)
that are accepted by Purchaser
pursuant to clause (ii) of
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the immediately preceding sentence is less
than the aggregate principal balance
of all Mortgage Loan(s) that are being
replaced by such Mortgage Loan(s), the
related Seller shall remit with such
Mortgage Loan to Purchaser an amount equal
to the difference between the aggregate
principal balance of the new Mortgage
Loan(s) accepted by Purchaser and the
aggregate principal balance of the
Mortgage Loan(s) being replaced
thereby.
(c)(2) The related Seller's rights and obligations to interim
service each Mortgage Loan as provided in
this Agreement, shall terminate on the
earlier of the related Settlement Date or
the date which is thirty days
following the related Purchase Date;
provided that, Purchaser may in its sole
discretion extend such 30 day interim
servicing period by one or more additional
30 day periods by providing written notice
to the related Seller prior to the
termination of such interim servicing
period. If an Act of Insolvency or any
material default hereunder by either Seller
occurs at any time, the Sellers'
rights and obligations to service the
Mortgage Loan(s), as provided in this
Agreement, shall terminate immediately,
without any notice or action by
Purchaser. Upon any such termination,
Purchaser is hereby authorized and
empowered to sell and transfer such rights
to service the Mortgage Loan(s) for
such price and on such terms and conditions
as Purchaser shall reasonably
determine, and Sellers shall have no right
to attempt to sell or transfer such
rights to service. The related Seller shall
perform all acts and take all
actions so that the Mortgage Loan(s) and
all files and documents relating to
such Mortgage Loan(s) held by the related
Seller, together with all escrow
amounts relating to such Mortgage Loan(s),
are delivered to Successor Servicer.
To the extent that the approval of any
Third Party Underwriter or any other
insurer or guarantor is required for any
such sale or transfer, the related
Seller shall fully cooperate with Purchaser
to obtain such approval. All amounts
paid by any purchaser of such rights to
service the Mortgage Loan(s) shall be
the property of Purchaser. Upon exercise by
Purchaser of its remedies under this
Section 3(c)(2), Purchaser's obligation to
pay and the related Seller's right to
receive any portion of the Completion Fee
relating to such Mortgage Loan(s)
shall automatically be canceled and become
null and void, provided that such
cancellation shall in no way relieve the
related Seller or otherwise affect the
obligation of the related Seller to
indemnify and hold Purchaser harmless as
specified in Section 3(e).
(d) Each Mortgage Loan delivered to Purchaser hereunder shall
be
delivered on a servicing released basis
free of any servicing rights in favor of
the related Seller and free of any title,
interest, lien, encumbrance or claim
of any kind of the related Seller and
Sellers hereby waives their right to
assert any interest, lien, encumbrance or
claim of any kind. Upon transfer of
such servicing rights to any Successor
Servicer, the related Seller shall
deliver or cause to be delivered all files
and documents relating to each
Mortgage Loan held by the related Seller to
Successor Servicer. The related
Seller shall promptly take such actions and
furnish to Purchaser such documents
that Purchaser deems reasonably necessary
or reasonably appropriate to enable
Purchaser to cure any defect in each such
Mortgage Loan or to enforce such
Mortgage Loans, as appropriate.
(e) In the event that a Mortgage Loan or Mortgage Pool is not
purchased by a Takeout Investor on or
before the Cure Date, upon not less than
five (5) days notice from Purchaser to the
related Seller, the related Seller
shall use commercially reasonable efforts
to obtain a Commitment from another
Takeout Investor to purchase such Mortgage
Loan or Mortgage Pool.
(f) Sellers agree to indemnify and hold Purchaser and its
assigns
harmless from and against all Losses
resulting from or relating to any breach or
failure to perform by Sellers of any
representation, warranty, covenant, term or
condition made or to be performed by
Sellers under this Agreement.
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<PAGE>
(g) No exercise by Purchaser of its rights under this Section 3
shall relieve Sellers of responsibility or
liability for any breach of this
Agreement; but in no event shall Sellers be
deemed to have waived any defense to
any claim made by Purchaser against
Sellers
(h) In addition to any rights and remedies of Purchaser provided
by
this Agreement and by law, Purchaser shall
have the right, without prior notice
to the Sellers, any such notice being
expressly waived by Sellers to the extent
permitted by applicable law, upon any
amount becoming due and payable by Sellers
hereunder to set-off and appropriate and
apply against such amount any and all
Property and deposits (general or special,
time or demand, provisional or
final), in any currency, and any other
credits, indebtedness or claims, in any
currency, in each case whether direct or
indirect, absolute or contingent,
matured or unmatured, at any time held or
owing by Purchaser or any Affiliate
thereof to or for the credit or the account
of the Sellers (including, without
limitation, the amount of any accrued and
unpaid Completion Fees). Purchaser may
also set-off cash and all other sums or
obligations owed by Purchaser or its
Affiliates to the Sellers (whether under
this Agreement or under any other
agreement between the parties or between
the Sellers and any Affiliate of
Purchaser) against all of the Sellers'
obligations to Purchaser or its
Affiliates (whether under this Agreement or
under any other agreement between
the parties or between the Sellers and any
Affiliate of Purchaser), whether or
not such obligations are then due. The
exercise of any such right of set-off
shall be without prejudice to Purchaser's
or its Affiliate's right to recover
any deficiency.
(i) Sellers agree that, with respect to any Mortgage Loan Pool
purchased by Purchaser, the related Takeout
Commitment shall have an Expiration
Date which is not later than 45 calendar
days after the related Purchase Date.
Sellers further agree that any additional
Takeout Commitment that they obtain
with respect to such Mortgage Loan Pool if
the initial Takeout Investor does not
perform under such Takeout Commitment shall
have an Expiration Date which is not
later than 60 calendar days after the
related Purchase Date. Seller have not and
will not take any action, or fail to act
where action is required, the result of
which would be to impair any Trade
Assignment.
(j) Sellers shall notify and provide Purchaser with copies of
any
changes made to the Sale Agreement or any
other correspondent agreements between
Sellers and any Takeout Investor within 2
Business Days of such change.
Section 4. Completion Fee.
(a) With respect
to each Mortgage Loan Pool that Purchaser elects to
purchase hereunder, Purchaser shall pay to
the related Seller a Completion Fee
subject to the terms of this Agreement. The
Completion Fee shall be payable by
Purchaser as provided in subsection (d)
below.
(b) For purposes of calculating that portion of the Completion
Fee
composed of the "Net Carry Adjustment", the
Net Carry Adjustment shall be an
amount (which may be a negative number)
equal to (A) the product obtained by
multiplying the number of days in the
period beginning on the Purchase Date to
but not including the Settlement Date and
the difference between (i) the product
of the rate of interest to be borne by the
related Mortgage Loans in the
Mortgage Pool and the aggregate principal
amount of such Mortgage Loans and (ii)
the daily application of the applicable
Pass-Through Rate to the Purchase Price;
divided by (B) 360.
(c) If a Mortgage Loan Pool is purchased by Purchaser in the
month
prior to the month in which the related
Settlement Date occurs, (A) all interest
which accrues on the related Mortgage
Loans, on and after the Purchase Date,
through the last day of any month prior to
the month in which such Settlement
Date
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occurs, shall be paid to Purchaser by the
related Seller, as interim servicer,
on a monthly basis on the earlier of (i)
the second Business Day of the month
following the month such interest accrued
or (ii) related Settlement Date and
(B) all interest which accrues on the
Mortgage Loans in such Mortgage Loan Pool
on and after the first day of the month in
which such Settlement Date occurs,
through the day immediately prior to such
Settlement Date, will be paid to
Purchaser by Takeout Investor on such
Settlement Date unless such Settlement
Date occurs after the Cut-off Date of such
month in which event the related
Seller, as interim servicer, shall pay such
amount to Purchaser on such
Settlement Date. If a Mortgage Loan Pool is
purchased by Purchaser in the same
month in which the related Settlement Date
occurs, (A) all interest, if any,
which accrues on such Mortgage Loan(s) from
the first day of such month to but
not including the related Purchase Date
shall be paid by Purchaser to the
related Seller on such Settlement Date, and
(B) all interest which accrues on
such Mortgage Loan(s), on and after the
Purchase Date to but not including the
Settlement Date will be paid to Purchaser
by Takeout Investor on the Settlement
Date unless such Settlement Date occurs
after the Cut-off Date or in a month in
which interest has been prepaid by the
Mortgagor in either of which events the
related Seller, as interim servicer, shall
pay such amount to Purchaser on such
Settlement Date. For purposes of this
paragraph all interest payments shall be
deemed to accrue at the applicable rate set
forth in the related Takeout
Commitment.
(d) The Completion Fee relating to each Mortgage Loan Pool is
payable on the date of receipt by Purchaser
of the Trade Price, provided that to
the extent such Trade Price is not received
on or before the Cure Date, the
Purchaser shall have no obligation to pay
the Completion Fee.
Section 5. Servicing of the Mortgage Loans.
(a) Upon payment of the Purchase Price, Purchaser shall own all
source files, documents, agreements and
papers related to servicing the Mortgage
Loans and shall own all derivative
information created by the related Seller or
other third party used or useful in
servicing the Mortgage Loans. The related
Seller shall interim service and administer
the Mortgage Loan(s) on behalf of
Purchaser in accordance with prudent
mortgage loan servicing standards and
procedures generally accepted by prudent
lenders in the mortgage banking
industry and in accordance with the
requirements of Takeout Investor, provided
that the related Seller shall at all times
comply with applicable law and the
terms of the related Mortgage Loan
Documents, and the requirements of any
applicable insurer or guarantor including,
without limitation, any Third Party
Underwriter, so that the insurance in
respect of any Mortgage Loan is not voided
or reduced. The related Seller shall at all
times maintain accurate and complete
records of its interim servicing of each
Mortgage Loan, and Purchaser may, at
any time during the related Seller's
business hours on reasonable advance
notice, examine and make copies of such
records. At the request and in
accordance with the directions of
Purchaser, the related Seller shall deliver to
Purchaser copies of any Credit Files within
3 Business Days of such request by
Purchaser. In addition, upon not less than
2 Business Days advance notice to the
related Seller, Purchaser shall have the
right to perform a due diligence review
of the related Seller, including the
related Seller's servicing capabilities.
If a Mortgage Loan is not purchased by Takeout Investor on or
before
the Cure Date, the related Seller shall at
Purchaser's written request deliver
to Purchaser monthly reports regarding the
status of such Mortgage Loan, which
reports shall include, but shall not be
limited to, a description of each
Mortgage Loan in default for more than
thirty (30) days, and such other
circumstances with respect to any Mortgage
Loan (whether or not such Mortgage
Loan is included in the foregoing list)
that could materially adversely affect
any such Mortgage Loan, Purchaser's
ownership of any such Mortgage Loan or the
collateral securing any such Mortgage Loan.
The related Seller shall deliver
such a report to Purchaser every thirty
(30) days until
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(i) the purchase by Takeout Investor of
such Mortgage Loan pursuant to the
related Takeout Commitment or (ii) the
exercise by Purchaser of any remedial
election pursuant to Section 3.
(b) Each Seller shall establish and maintain a separate
custodial
account (the "Custodial Account") entitled
"[Name of the related Seller], in
trust for Greenwich Capital Financial
Products, Inc. and its assignees under the
Mortgage Loan Purchase and Sale Agreement
dated [the date of this Agreement]"
and shall promptly deposit into such
account in the form received with any
necessary endorsements all collections
received in respect of each Mortgage Loan
that are payable to Purchaser as the owner
of each such Mortgage Loan pursuant
to this Agreement.
(c) Amounts deposited in the Custodial Account with respect to
any
Mortgage Loan shall be held in trust for
Purchaser as the owner of such Mortgage
Loan and shall be released only as
follows:
(1) Except as otherwise provided in Section 5(c)(2), following
receipt by Purchaser or its designee of the Takeout Proceeds
for
such Mortgage Loan from Takeout Investor, amounts deposited in
the
Custodial Account related to such Mortgage Loan not otherwise
subject to setoff as provided hereunder shall be released to
the
related Seller. The amounts paid to the related Seller (if any)
pursuant to this Section 5(c)(1) shall constitute the related
Seller's sole compensation for interim servicing the Mortgage
Loans
as provided in this Section 5.
(2) If Successor Servicer takes delivery of such Mortgage Loan
(either under the circumstances set forth in Section 3 or
otherwise), all amounts deposited in the Custodial Account shall
be
paid to Purchaser promptly upon such delivery.
(3) If a Mortgage Loan is not purchased by Takeout Investor on
or before the Cure Date, during the period thereafter that the
related Seller remains as interim servicer, all amounts deposited
in
the Custodial Account shall be released only in accordance with
Purchaser's written instructions.
Section 6. Trade Assignments. The related Seller hereby assigns
to
Purchaser, free of any security interest,
lien, claim or encumbrance of any
kind, the related Seller's rights, under
each Takeout Commitment as to which
Takeout Investor has consented to
assignment, to deliver the Mortgage Loan(s)
specified therein to the related Takeout
Investor and to receive the Takeout
Proceeds therefor from such Takeout
Investor. Purchaser shall not be deemed to
have accepted any Trade Assignment unless
and until it purchases the related
Mortgage Loans, and nothing set forth
herein shall be deemed to impair
Purchaser's right to reject any Mortgage
Loan for any reason, in its sole
discretion.
Section 7. Transfers of Beneficial Interest in Mortgage Loans
by
Purchaser. Purchaser may, in its sole
discretion, assign all of its right, title
and interest in or grant a security
interest in any Mortgage Loan purchased by
Purchaser hereunder and all rights of
Purchaser under this Agreement and the
Custodial Agreements, in respect of such
Mortgage Loan to a third party (each,
an "Assignee"). It is anticipated that such
assignment to an Assignee will be
made by Purchaser, and Sellers hereby
irrevocably consent to such assignment. No
notice of such assignment shall be given by
Purchaser to the related Seller or
Takeout Investor. Assignment by Purchaser
of the Mortgage Loans as provided in
this Section 7 shall not release Purchaser
from its obligations otherwise under
this Agreement. Without limitation of the
foregoing, an assignment of the
Mortgage Loans to an Assignee, as described
in this Section 7, shall be
effective upon delivery to the Assignee of
a duly executed and authenticated
Trust Receipt.
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Section 8. Record Title to Mortgage Loans; Intent of Parties;
Security Interest.
