EXHIBIT 10.5.2
WHOLE LOAN CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
Purchaser,
600 Steamboat Road
Greenwich, Connecticut 06830
AMERICAN HOME MORTGAGE CORP.
Seller
520 Broadhollow Road
Melville, New York 11747
COLUMBIA NATIONAL, INCORPORATED
Seller
7142 Columbia Gateway Drive
Columbia, Maryland 21046
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
Custodian
1761 East St. Andrew Place
Santa Ana, California 92705
Attn: Mortgage Custody - AH041C
Dated as of January 1, 2004
TABLE OF CONTENTS
Page
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Section 1. Definitions......................................................1
Section 2. Delivery of Documents by Seller..................................7
Section 3. Custodian as Custodian for, and Bailee of, Purchaser, Assignee
and Warehouse Lender...........................................7
Section 4. Certification by Custodian; Delivery of Documents; Disbursement
Account........................................................9
Section 5. [Reserved]......................................................12
Section 6. Default.........................................................12
Section 7. Access to Documents.............................................12
Section 8. Custodian's Fees and Expenses; Successor Custodian; Standard of
Care..........................................................12
Section 9. Assignment by Purchaser.........................................15
Section 10. Insurance.......................................................16
Section 11. Representations, Warranties and Covenants.......................16
Section 12. No Adverse Interests............................................17
Section 13. Amendments......................................................17
Section 14. Execution in Counterparts.......................................18
Section 15. Agreement for Exclusive Benefit of Parties; Assignment..........18
Section 16. Effect of Invalidity of Provisions..............................18
Section 17. Governing Law...................................................18
Section 18. Consent to Service..............................................18
Section 19. Notices.........................................................18
Section 20. Certification...................................................18
Section 21. Construction....................................................19
Section 22. Submission to Jurisdiction......................................19
Section 23. WAIVER OF JURY TRIAL............................................19
Section 24 Joint and Several Liability.....................................18
Exhibit A-1 Cash Window Submission Package
Exhibit A-2 Freddie Mac Document List
Exhibit A-3 Fannie Mae Document List
Exhibit A-4 Fannie Mae Master Bailee Letter
Exhibit B-1.Conduit Submission Package
Exhibit B-2 Conduit Master Bailee Letter
Exhibit C Request for Certification
Exhibit D Trust Receipt
Exhibit D-1 Notice of Intent to Issue a Trust Receipt
Exhibit E-1 Warehouse Lender's Release
Exhibit E-2 Warehouse Lender's Wire Instructions
Exhibit F-l Seller's Release
Exhibit F-2 Seller's Wire Instructions
Exhibit G-l Purchaser's Wire Instructions to Seller
Exhibit G-2 Purchaser's Wire Instructions to Custodian
Exhibit G-3 Purchaser's Delivery Instructions to Custodian
Exhibit H Notice by Assignee to Custodian of Purchaser's Default
Exhibit I [Reserved]
Exhibit J Form of Delivery Instructions
Exhibit K-1 Trade Assignment
Exhibit K-2 Trade Assignment (Blanket)
Schedule A List of Conduits
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT ("Agreement"), dated as of the date set
forth on the cover page hereof (the "Effective Date"), is entered into by and
among GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. ("Purchaser"), DEUTSCHE BANK
NATIONAL TRUST COMPANY, as custodian ("Custodian"), AMERICAN HOME MORTGAGE CORP.
(a "Seller") and COLUMBIA NATIONAL, INCORPORATED (a "Seller", and together with
American Home Mortgage Corp., the "Sellers").
PRELIMINARY STATEMENT
Purchaser has agreed to purchase from Sellers, from time to time, at
its sole election, certain mortgage loans pursuant to the terms and conditions
of one or more Purchase Agreements between Purchaser and Sellers relating to
Cash Window Transactions or Conduit Transactions. With respect to the certain
mortgage loans that Purchaser elects to purchase, the related Seller is
obligated to interim service the Mortgage Loans pursuant to the terms and
conditions of the Purchase Agreements. Purchaser desires to have Custodian take
possession of the Mortgage Notes evidencing the Mortgage Loans, along with
certain other documents specified herein, as the custodian for and bailee of
Purchaser or Assignee in accordance with the terms and conditions hereof.
The parties hereto agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
"Agency": Freddie Mac, Fannie Mae or GNMA, as applicable.
"Applicable Agency Documents": The documents listed on Exhibit A-2,
Exhibit A-3 or those documents listed on Exhibit B-1 as shall apply to
GNMA, as applicable.
"Applicable Guide": With respect to each Takeout Investor the
applicable guide published by such Takeout Investor setting forth the
requirements Mortgage Loans must satisfy in order to be eligible for
purchase by such Takeout Investor as amended or supplemented from time to
time.
"Assignee": The party identified in writing to a Seller and
Custodian by Purchaser from time to time who acts as agent for certain
beneficiaries pursuant to certain Repurchase Transaction Tri-Party Custody
Agreements with Purchaser.
"Assignment of Mortgage": An assignment of the Mortgage, notice of
transfer or equivalent instrument sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect
of record the sale of a Mortgage Loan.
"Bailee Letter": A Fannie Mae Bailee Letter or a Conduit Bailee
Letter, as applicable.
"Business Day": Any day other than (a) a Saturday, Sunday or other
day on which banks located in the State of New York or the State of
California are authorized or obligated by law or executive order to be
closed or (b) any day on which Purchaser or Custodian is authorized or
obligated by law or executive order to be closed.
"Cash Window Submission Package": The documents listed on Exhibit
A-1, which shall be delivered by the related Seller to Custodian in
connection with each Cash Window Transaction.
"Cash Window Transaction": A transaction initiated by a Seller's
delivery of a Request for Certification which identifies Fannie Mae or
Freddie Mac as the Takeout Investor.
"Commitment": A commitment executed by Takeout Investor and a Seller
evidencing Takeout Investor's agreement to purchase one or more Mortgage
Loans from the related Seller and the related Seller's agreement to sell
one or more Mortgage Loans to Takeout Investor in a forward trade by the
applicable Expiration Date.
"Conduit": Any of the entities listed on Schedule A, as amended or
supplemented from time to time.
"Conduit Bailee Letter": The master bailee letter, in the form of
Exhibit B-2, for use by Custodian in connection with the delivery of a
Conduit Submission Package, for the purpose of delivering the related
Conduit Submission Package, excluding (i) a copy of the Confirmation, (ii)
the Warehouse Lender's Release or Seller's Release, as applicable, and
(iii) the original Assignment of Mortgage, in blank, to a Conduit.
"Conduit Submission Package": The documents listed on Exhibit B-1,
which shall be delivered by the related Seller to Custodian in connection
with each Conduit Transaction.
"Conduit Transaction": A transaction initiated by a Seller's
delivery of a Request for Certification which identifies a Conduit as the
Takeout Investor.
"Confirmation": A written confirmation as required by the Purchase
Agreement of Purchaser's intent to purchase a pool of Mortgage Loans.
"Custodian": The party identified on the cover page hereto and its
permitted successors hereunder.
"Delivery Instructions": With respect to a Mortgage Loan,
instructions prepared by a Seller and transmitted electronically in an
appropriate data layout no later than 11:00 a.m.
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Eastern Time, in the form of Exhibit J indicating the address for the
delivery by Custodian of the applicable portion of the related Submission
Package.
"Disbursement Account": shall have the meaning set forth in Section
4(a)(2) hereof.
"Discount": With respect to a Mortgage Loan sold by a Seller to
Purchaser, the amount set forth on the related Confirmation as the
Discount.
"Eastern Time": Either Eastern Standard Time or Day Light Savings
Time as then in effect in New York City.
"Electronic Agent": Shall have the meaning assigned to such term in
Section 2 of the Electronic Tracking Agreement.
"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.
"Expiration Date": With respect to any Commitment, the expiration
date thereof.
"Fannie Mae": Fannie Mae, and any successor thereto.
"Fannie Mae Bailee Letter": The master bailee letter, in the form of
Exhibit A-4, for use by Custodian in connection with the delivery to
Fannie Mae of a Cash Window Submission Package excluding (i) the
Assignment of Mortgage, in blank, (ii) the Warehouse Lender's Release or
Seller's Release, as applicable, (iii) all modification agreements
relating to a Mortgage, (iv) the Delivery Instructions, and (v) a copy of
the Commitment.
"Fannie Mae Commitment": A commitment executed by Fannie Mae and a
Seller, evidencing Fannie Mae's agreement to purchase one or more Mortgage
Loans from the related Seller and the related Seller's agreement to sell
one or more Mortgage Loans to Fannie Mae by the applicable Expiration Date
under the Applicable Guide.
"Freddie Mac": Freddie Mac, and any successor thereto.
"Freddie Mac Commitment": A commitment executed by Freddie Mac and a
Seller evidencing Freddie Mac's agreement to purchase one or more Mortgage
Loans from the related Seller and the related Seller's agreement to sell
one or more Mortgage Loans to Freddie Mac by the applicable Expiration
Date under the Applicable Guide.
"Funding Confirmation": With respect to all Mortgage Loans purchased
by Purchaser from a Seller via a single wire funds transaction on a
particular Business Day, the trade confirmation from Purchaser to the
related Seller confirming the terms of Purchaser's purchase of such
Mortgage Loans.
"GNMA": The Government National Mortgage Association and any
successor thereto.
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"HUD": United States Department of Housing and Urban Development and
any successor thereto.
"Loan Identification Data": The applicable information regarding a
Mortgage Loan, set forth on a Request for Certification, in the form of
Exhibit C, which shall include (i) Purchaser's reference number, (ii) the
name of Purchaser's applicable program, (iii) the Mortgage Loan number
(iv) the last name of the Mortgagor, (v) the face amount of the Mortgage
Note, (vi) the original number of months to maturity of the Mortgage Loan,
(vii) the original interest rate borne by the Mortgage Note, (viii) the
name of the Takeout Investor, (ix) the sale price of the Mortgage Loan to
the Takeout Investor, (x) the commitment number, (xi) with respect to each
MERS Mortgage Loan, the MIN, (xii) the Expiration Date, (xiii) the date
the Mortgage Loan is scheduled to be delivered to the Takeout Investor,
(xiv) the Release Payment, (xv) the name of the Warehouse Lender, if any,
and (xvi) the Purchaser's Payee Number, if applicable.
"Losses": Any and all losses, claims, damages, liabilities or
expenses (including lost interest and reasonable attorney's fees) incurred
by any Person specified; provided, however that "Losses" shall not include
losses, claims, damages, liabilities or expenses which would have been
avoided had such Person taken reasonable actions to mitigate such losses,
claims, damages, liabilities or expenses.
"MERS": Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of
Delaware, or any successor thereto.
"MERS Mortgage Loan": Any Mortgage Loan 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 Loan Identification
Data."
"MERS Report": The schedule listing MERS Mortgage Loans and other
information prepared by the Electronic Agent with respect to such Mortgage
Loan.
"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.
"Mortgage": A mortgage, deed of trust or other security instrument
creating a lien on an estate in fee simple in real property securing a
Mortgage Note.
"Mortgage Loan": A loan secured by a mortgage and that is subject to
this Agreement.
"Mortgage Note": The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
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"Mortgaged Property": The property subject to the lien of the
Mortgage securing a Mortgage Note.
"Mortgagor": The obligor on a Mortgage Note.
"Notice of Bailment": A notice, in the form of Schedule A to Exhibit
A-4 or Schedule A to Exhibit B-2, as applicable, delivered by Custodian to
Takeout Investor in connection with each delivery to Takeout Investor of
the applicable portion of each Submission Package.
"Payee Number": The code used by Fannie Mae to indicate the wire
transfer instructions that will be used by Fannie Mae to purchase a
Mortgage Loan.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Primary Mortgage Insurer": Any one of GE Capital Mortgage Insurance
Co., Republic Mortgage Insurance Co., Mortgage Guaranty Insurance Corp.,
United Guaranty Corporation or PMI Mortgage Insurance Company or any other
entity approved as a primary mortgage insurer by Fannie Mae.
"Purchase Agreement": Each Purchase and Sale Agreement, dated as of
the date set forth on the cover page thereof, between the related Seller
and Purchaser, as each is amended from time to time providing the terms of
Cash Window Transactions or Conduit Transactions.
"Purchase Date": With respect to a Mortgage Loan, the date on which
Purchaser purchases such Mortgage Loan from the related Seller.
"Purchaser": Greenwich Capital Financial Products, Inc. and its
successors.
"Purchaser's Payment": The amount set forth on the Request for
Certification in the "RELEASE PAYMENT" column.
"Purchase Price": With respect to each Mortgage Loan purchased by
Purchaser, an amount equal to the Trade Principal less an amount equal to
the product of the Trade Principal and the Discount (i.e., TP minus (TP
times D)).
"Purchaser's Wire Instructions to Custodian": Wire Instructions
delivered by Purchaser to Custodian, in the form of Exhibit G-2, executed
by Purchaser, receipt of which is acknowledged by Custodian specifying the
wire address where all funds received in accordance with Purchaser's Wire
Instructions to Sellers shall be transferred by Custodian.
"Purchaser's Wire Instructions to Seller": The wire instructions,
set forth on Exhibit G-1, specifying the account which shall be used for
the payment of all amounts due and payable by Sellers to Purchaser
hereunder.
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"Release Payment": The funds referred to in a Warehouse Lender's
Release or Seller's Release, as applicable.
"Request for Certification": A report detailing Loan Identification
Data supplied by the related Seller to Purchaser and Custodian in the form
of Exhibit C and transmitted electronically in an appropriate data layout,
regarding all Mortgage Loans being offered for sale by the related Seller
to Purchaser on the Purchase Date.
"Seller": With respect to any Mortgage Loan, the Sellers whose names
is set forth on the cover page hereof from whom the Purchaser purchased
such Mortgage Loan pursuant to the terms of the Purchase Agreement, and
its permitted successors hereunder.
"Seller's Release": A letter, in the form of Exhibit F-1, delivered
by a Seller when no Warehouse Lender has an interest in a Mortgage Loan,
conditionally releasing all of the related Seller's right, title and
interest in a Mortgage Loan upon receipt of payment by the related Seller.
"Seller's Wire Instructions": The wire instructions, set forth in a
letter in the form of Exhibit F-2, to be used for the payment of funds to
the related Seller when no Warehouse Lender has an interest in the
Mortgage Loans to which such payment relates.
"Submission Package": With respect to each Mortgage Loan, a Cash
Window Submission Package or a Conduit Submission Package, as applicable.
"Successor Servicer": An entity designated by Purchaser, in
conformity with the Purchase Agreement, to replace the related Seller as
servicer for Purchaser, and, with respect to Cash Window Transactions, a
seller/servicer of the Mortgage Loans for the Agency.
"Takeout Investor": An Agency or a Conduit as applicable.
"Trade Assignment": The assignment by a Seller to Purchaser of the
related Seller's rights under a specific Commitment, in the form of
Exhibit K-1, or of the related Seller's rights under all Commitments, in
the form of Exhibit K-2.
"Trade Price": The trade price set forth on a Commitment.
"Trade Principal": With respect to any Mortgage Loan, the
outstanding principal balance of the Mortgage Loan multiplied by a
percentage equal to the Trade Price.
"Trust Receipt": A receipt of Custodian, substantially in the form
of Exhibit D hereto, indicating that with respect to the Mortgage Loans
listed on the attached schedule, the Custodian has performed the
procedures set forth in Sections 4(a) and 4(b) hereof, that it has
received the entire Cash Window Submission Package or the Conduit
Submission Package, as applicable, and that it is holding such documents
as bailee and custodian of Purchaser.
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"Underwriter": Any party, including but not limited to a mortgage
loan pool insurer, who underwrites a Mortgage Loan prior to its purchase
by Purchaser.
"Underwriter's Form": A Fannie Mae/Freddie Mac Form 1008/1077,
HUD92900WS, HUD92900.4, VA Form 26-6393, VA Form 26-1866, a mortgage loan
pool insurance certificate, or an underwriting approval form from a
Primary Mortgage Insurer, as applicable, completed by an Underwriter with
respect to a Mortgage Loan, indicating that such Mortgage Loan complies
with its underwriting requirements.
"Warehouse Lender": Any lender providing financing to a Seller for
the purpose of originating Mortgage Loans, which lender has a security
interest in such Mortgage Loans as collateral for the obligations of the
related Seller to such lender.
"Warehouse Lender's Release": A letter, substantially in the form of
Exhibit E-1, from a Warehouse Lender to Purchaser, conditionally releasing
all of Warehouse Lender's right, title and interest in certain Mortgage
Loans identified therein upon payment to Warehouse Lender.
"Warehouse Lender's Wire Instructions": The wire instructions, set
forth in a letter in the form of Exhibit E-2, from a Warehouse Lender to
Purchaser, setting forth wire instructions for all amounts due and payable
to such Warehouse Lender.
Section 2. Delivery of Documents by Seller.
If a Seller desires to engage in Cash Window Transactions:
(a) relating to a Freddie Mac Commitment, the related Seller shall
deliver to Purchaser a copy of (i) Freddie Mac Form 1035 (Custodial Agreement),
if applicable, duly executed by the related custodian and Freddie Mac, and (ii)
Freddie Mac Form 3 (Summary Agreement) or such other equivalent agreement as is
acceptable to Purchaser, duly executed by the related Seller and Freddie Mac; or
(b) relating to a Fannie Mae Commitment, the related Seller shall
deliver to Purchaser a copy of (i) Fannie Mae Form 2003 (Custodial Agreement) if
applicable, duly executed by the related custodian and Fannie Mae, (ii) Fannie
Mae Mortgage Selling and Servicing Contract, and Fannie Mae Form 482
(Designation of Payee - Wire Transfer Information).
Section 3. Custodian as Custodian for, and Bailee of, Purchaser,
Assignee and Warehouse Lender.
(a) With respect to each Mortgage Note, each Assignment of Mortgage
and all other documents constituting each Submission Package that are delivered
to Custodian or that at any time come into Custodian's possession, Custodian,
subject to the provisions of paragraphs (b) and (c) of this Section 3, shall act
solely and exclusively in the capacity of custodian for, and bailee of,
Purchaser. Custodian shall, subject to the provisions of paragraphs (b) and (c)
of this Section 3 and except as otherwise required by Section 4: (i) hold all
documents constituting a
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Submission Package received by it for the exclusive use and benefit of
Purchaser; (ii) make disposition thereof only in accordance with this Agreement
and the directions of the Purchaser; and (iii) have no discretion or authority
to act in a manner which is in any respect contrary to its role as custodian
with respect to its obligations under this Agreement. Custodian shall segregate
and maintain continuous custody of all documents constituting a Submission
Package received by it in secure and fire resistant facilities in accordance
with customary standards for such custody and shall mark its books and records
to indicate that Purchaser is the owner of the Mortgage Loans and that the
Submission Package is being held for Purchaser.
(b) With respect to each Mortgage Loan purchased by Purchaser from a
Seller, Purchaser shall have the right to assign to Assignee such Mortgage Loan
as described in Section 9. If Purchaser has notified Custodian in writing of
such assignment, then, upon notice in the form of Exhibit H hereto by Assignee
to Custodian of Purchaser's default, Assignee may (i) require Custodian to act
with respect to the related Submission Packages solely in the capacity of
custodian for, and bailee of, Assignee, but nevertheless subject to and only in
accordance with the terms of this Agreement, (ii) require Custodian to hold such
Submission Packages for the exclusive use and benefit of Assignee, and (iii)
assume the rights of Purchaser under this Agreement to furnish instructions to
Custodian as to the disposition of such Submission Packages and such rights
shall be exercisable solely by Assignee. Custodian shall give Assignee written
acknowledgment of the receipt of such notice by signing such notice and
returning a copy thereof to Assignee. In the event that, prior to receipt of
such notice from Assignee, Custodian delivered any Submission Package specified
in such notice to Purchaser, Takeout Investor or Purchaser's designee, Custodian
shall so notify Assignee, and Custodian shall not be deemed to hold such
Submission Package for Assignee unless and until such Submission Package is
redelivered to Custodian. The failure of Custodian to give the written
acknowledgment referred to above shall not affect the validity of such
assignment, pledge or grant of a security interest from the Purchaser to its
Assignee. The effects of Assignee's notice to Custodian set forth above shall
continue until Custodian is otherwise notified in writing by Assignee. The terms
of this Agreement shall not apply to any Submission Package delivered by
Custodian to Assignee.
(c) Sellers and Purchaser acknowledge that Warehouse Lender, if any,
identified from time to time in each Warehouse Lender's Release to be received
by Custodian pursuant to Section 4(b)(i), is a warehouse lender for the related
Seller. Sellers and Purchaser acknowledge that, in accordance with the terms of
each Warehouse Lender's Release to be received by the Custodian pursuant to
Section 4(b)(i), pursuant to which each such Warehouse Lender conditionally
releases its security interest in the Mortgage Loan referred to in the related
Warehouse Lender's Release, such release shall not be effective until the
Release Payment is remitted to the Warehouse Lender in accordance with the
Warehouse Lender's Wire Instructions. Until remittance of a Release Payment to
Warehouse Lender, the interest of the related Warehouse Lender in a Mortgage
Loan shall continue and remain in full force and effect. Sellers agree that to
the extent the Release Payment is greater than the Purchase Price, the related
Seller shall transfer on the Purchase Date the difference between the Release
Payment and the Purchase Price to the Warehouse Lender in accordance with the
Warehouse Lender's Wire Instructions or as otherwise agreed by the Seller and
the Warehouse Lender.
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(d) If any additional documents relating to the Submission Package
come into the Custodian's possession, the provisions of paragraphs (a), (b) and
(c) of this Section 3 shall apply to such additional documents in the same
manner as such provisions apply to the related Submission Package.
Section 4. Certification by Custodian; Delivery of Documents;
Disbursement Account.
(a) (1) With respect to each Mortgage Loan being offered by a Seller
for sale to Purchaser pursuant to (i) a Cash Window Transaction or (ii) a
Conduit Transaction, the related Seller shall ensure that Custodian and
Purchaser have each received the Loan Identification Data and Wiring Instruction
Data necessary to complete a Request for Certification no later than 9:00 p.m.
Eastern Time on the Business Day immediately preceding the related Purchase
Date. Further, the related Seller shall ensure that Custodian shall be in
possession of a Submission Package for each Mortgage Loan identified on a
Request for Certification no later than 6:00 p.m. Eastern Time on the Business
Day prior to the related Purchase Date and that no more than 500 loan files are
to be delivered to Custodian with respect to any one Purchase Date. Upon receipt
by Custodian of such Request for Certification, Custodian shall ascertain
whether it is in possession of a Submission Package for each Mortgage Loan
identified on a Request for Certification and shall certify in accordance with
Section 20 herein, each Submission Package and, no later than 2:00 p.m. Eastern
Time on the Business Day of the related Purchase Date, issue to Purchaser by
facsimile a Notice of Intent to Issue a Trust Receipt substantially similar to
Exhibit D-l. If Custodian is not in possession of a Submission Package relating
to a Mortgage Loan identified on a Request for Certification, Custodian shall
notify the related Seller and shall not include such Mortgage Loan in any Notice
of Intent to Issue Trust Receipt. Not later than 3:00 p.m. Eastern Time on the
Business Day of the related Purchase Date, Purchaser shall notify Custodian in
writing or electronically which Mortgage Loans it does not intend to purchase as
identified in the Notice of Intent to Issue Trust Receipt. Not later than 6:00
p.m. Pacific Time on the Business Day of the related Purchase Date, Custodian
shall issue a cumulative Trust Receipt to Purchaser. Each Trust Receipt issued
shall supersede any Trust Receipt bearing an earlier date.
(2) Custodian shall establish and maintain an account (the
"Disbursement Account"), entitled "Disbursement Account, Deutsche Bank National
Trust Company, as Custodian for Greenwich Capital Financial Products, Inc.
Account No. 40043," into which the Purchaser shall deposit the Purchase Price
with Custodian. With respect to any Mortgage Loan, the Purchaser shall remit the
Purchase Price to the Custodian for deposit into the Disbursement Account no
later than 4:00 p.m. Eastern Time on the related Purchase Date. Any funds in the
Disbursement Account shall remain uninvested.
Provided that Custodian has received the related wire transfer as
provided in Section 4(a)(2) above, on any related Purchase Date, the Custodian
shall be permitted to disburse funds from the Disbursement Account pursuant to
the Wiring Instruction Data provided by the related Seller. In no event shall
Custodian be obligated to disburse funds if Custodian has not received funds
pursuant to Section 4(a)(2) above. The Sellers hereby represent that they shall
be solely responsible for assuring that the information provided in such Wiring
Instruction Data is correct and agrees to confirm such Wiring Instruction Data
by delivering to Custodian via overnight delivery a hard copy certification and
confirmation of such Wiring Instruction Data
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which is consistent in all material respects with the electronic delivery of
such data (such data to be received by the Custodian no later than 4:00 p.m.
Eastern Time). The certification and confirmation from the related Seller shall
be signed by an authorized officer of the related Seller. Custodian shall not be
authorized to disburse funds from the Disbursement Account unless and until it
receives from the related Seller such written, certified Wiring Instruction
Data.
The Sellers shall be obligated to cover any overdrafts or shortfalls
related to the Disbursement Account pursuant to the terms and conditions
provided separately by a money transfer service agreement, between the Sellers
and Deutsche Bank National Trust Company, to be entered into by the parties.
(b) With respect to each Request for Certification, prior to the
delivery of the Notice of Intent to Issue a Trust Receipt by Custodian:
(i) Custodian shall review each applicable set of documents
comprising the Submission Package and shall ascertain whether (A) each
document required by this Agreement to be in such Submission Package is in
the Custodian's possession, (B) each document in the Custodian's
possession conforms to the Loan Identification Data set forth in the
Request for Certification with regard to items (iii) through (vii),
inclusive, (C) each document appears regular on its face, (D) each
document appears on its face to conform to the requirements of Exhibit A-1
or Exhibit B-1, as applicable, (E) each Mortgage Loan is listed on a
schedule attached to a Warehouse Lender's Release or a Seller's Release,
as the case may be, (F) if the Release Payment is a dollar amount, the
amount appearing in the "RELEASE PAYMENT" column on the Request for
Certification is equal to or exceeds the Release Payment identified on the
Warehouse Lenders Release or Sellers Release, (G)(l) with respect to the
wire transfer instructions as set forth in Freddie Mac Form 987 (Wire
Transfer Authorization for a Cash Warehouse Delivery) such wire transfer
instructions are identical to Purchaser's Wire Instructions to Seller or
(2) the Payee Number set forth on Fannie Mae Form 1068 (Fixed-Rate,
Graduated-Payment, or Growing-Equity Mortgage Loan Schedule) or Fannie Mae
Form 1069 (Adjustable-Rate Mortgage Loan Schedule), as applicable, is
identical to the Payee Number that has been identified by Purchaser in
writing as Purchaser's Payee Number, and (H) with respect to each MERS
Mortgage Loan and within twenty-four hours of the related funding, based
solely upon a review of the MERS Report, each MERS Mortgage Loan is
registered in the MERS System, the "interim funder" data field is blank
with respect to each MERS Mortgage Loan and the Mortgagee, or in the case
of a deed of trust, the beneficiary, is MERS and the Mortgage Loan is
identified on the Loan Identification Data as a MERS Mortgage Loan.
(ii) If Custodian determines that the documents in the Submission
Package and the Mortgage Loan to which they relate conform in all respects
with Section 4(b)(i), Custodian shall include such Mortgage Loan in the
Notice of Intent to Issue Trust Receipt and, assuming Purchaser does not
notify Custodian that it will not purchase a particular Mortgage Loan, in
the Trust Receipt issued that day to Purchaser. If documents in the
Submission Package do not conform in all respects with Section 4(b)(i) or
are missing
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and/or do not conform (except as specified in Section 4(b)(i)), Custodian
shall not include such Mortgage Loan in any Notice of Intent to Issue
Trust Receipt.
(c) As outlined in Section 4(a), Custodian shall deliver to
Purchaser, no later than 6:00 p.m. Pacific Time on the Business Day of the
related Purchase Date, by facsimile transmission followed by overnight courier a
cumulative Trust Receipt. Each cumulative Trust Receipt should include: (i) all
Mortgage Loans that Custodian has certified on all prior Purchase Dates that
Purchaser has not communicated to Custodian its release of interest in and (ii)
the collateral location pursuant to the Mortgage Loan Schedule of each Mortgage
Loan appearing on this cumulative Trust Receipt. Each Trust Receipt shall be
deemed a certification by the Custodian that the Custodian has completed the
procedures set forth in Sections 4(a) and 4(b)(i) hereof and a certification
that it is holding each related Submission Package for the benefit of Purchaser
in accordance with the terms hereof.
(d) All documents comprising a Submission Package relating to
Mortgage Loans included in a Trust Receipt shall be delivered by Custodian to
the Takeout Investor specified by the related Seller via overnight courier in
accordance with the Delivery Instructions and, except with respect to Mortgage
Loans for which Freddie Mac or GNMA is the Takeout Investor, under cover of a
fully completed Notice of Bailment prepared by Custodian in accordance with the
terms of the applicable Bailee Letter. Custodian shall not deliver any
Submission Package to any potential Takeout Investor unless such Takeout
Investor was identified by the related Seller to Purchaser on the Purchase Date
in the Loan Identification Data or as agreed to in writing by Purchaser and
Custodian shall confirm prior to delivery of any documents to any Takeout
Investor that such Takeout Investor has executed a Bailee Letter. In those cases
where a copy of any intervening mortgage assignment, or an unrecorded original
of any intervening mortgage assignment are delivered to the Custodian, the
related Seller shall promptly cause the original of such instrument to be
recorded. If Delivery Instructions direct Custodian to deliver any portion of a
Submission Package to a location that is not the Takeout Investor's office
specified on Schedule A, Custodian must receive Purchaser's written consent to
deliver to such location prior to complying with such Delivery Instructions.
Upon receipt of one written approval from Purchaser, such written approval
shall, unless Custodian receives written or electronic notice from Purchaser to
the contrary, be deemed to apply to all Delivery Instructions delivered in the
future by the related Seller that list such location. Following delivery by
Custodian of the Submission Package to Takeout Investor, all remaining
documents, if any, not included in such Submission Package shall be held by
Custodian for thirty (30) days following receipt of notification from Purchaser,
at which time the Custodian shall destroy such documents or deliver the same as
directed by, and at the expense of, the related Seller.
(e) At any time following the delivery of a Trust Receipt, in the
event Custodian becomes aware of any noncompliance in any respect with Section
4(b)(i) with respect to a related Submission Package or the related forms,
including the return of documents to the Custodian from Takeout Investor due to
a defect in such documents or if Takeout Investor fails to purchase any Mortgage
Loan by the related Cure Date, the Custodian shall give prompt oral notice of
such defect to the related Seller and Purchaser, followed by a written
specification thereof to Purchaser within one Business Day. In addition,
Custodian shall provide written notice in the event that any documents remain in
the possession of a Takeout Investor for ten
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days and the related Mortgage Loans have not been purchased by Takeout Investor
prior to such date.
Section 5. [Reserved].
Section 6. Default.If Sellers fail to fulfill any of their
obligations under the Purchase Agreement or hereunder or in connection with the
exercise by Purchaser of any remedy pursuant to Section 3 of the Purchase
Agreement then, subject to the provisions of Section 3(b) of this Agreement,
Purchaser may, by written or electronic notice to Custodian, (a) appoint
Custodian as its delegate to complete the endorsements on behalf of Purchaser on
the Mortgage Notes held by Custodian and to complete and record at Purchaser's
expense the related blank Assignments of Mortgages relating to the affected
Mortgage Loans in accordance with Purchaser's instructions and, when applicable,
(b) require Custodian to deliver to Purchaser, Takeout Investor or Successor
Servicer the Submission Packages (or any portion thereof specified by Purchaser)
in Custodian's possession or under Custodian's control to which the failure
relates. If Purchaser fails to purchase Mortgage Loans as provided for under the
Purchase Agreement or hereunder, Custodian shall hold the Mortgage Loans for the
benefit of the related Seller and shall act under instructions from the related
Seller.
Section 7. Access to Documents.
Upon reasonable prior written notice to Custodian, Purchaser (and if the
Mortgage Loans have been assigned, Assignee) and its agents, accountants,
attorneys and auditors will be permitted during normal business hours at its
office to examine and copy at their expense the Submission Packages, documents,
records and other papers in possession of or under the control of Custodian
relating to any or all of the Mortgage Loans in which Purchaser has an interest.
Upon the written or electronic request of Purchaser (or, if applicable,
Assignee) and at the cost and expense of Purchaser (or, if applicable,
Assignee), Custodian shall provide such Purchaser (or, if applicable, Assignee)
with copies of the Mortgage Notes, Assignments of Mortgage and other documents
in Custodian's possession relating to any of the Mortgage Loans in which
Purchaser (or, if applicable, Assignee) has an interest. In addition, upon the
written or electronic request of Purchaser, Custodian shall provide Purchaser
with an electronic transmission containing a list of all the Mortgage Loans for
which the Custodian holds documents pursuant to this Custodial Agreement and a
list of the documents held by Custodian with respect to each such Mortgage Loan.
Section 8. Custodian's Fees and Expenses; Successor Custodian;
Standard of Care.
(a) Sellers agree to pay the Custodian such fees and expenses for
its services under this Agreement as are set forth in a separate agreement
between Custodian and Sellers (the "Sellers/Custodian Fee Agreement"), and shall
further pay or reimburse the Custodian upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Custodian in
accordance with this Agreement or any other documents executed in connection
herewith (including, without limitation, attorney's fees and expenses). The
payment of the Custodian's fees and expenses pursuant to the Sellers/Custodian
Fee Agreement, shall be solely the obligation of Sellers. Custodian has no lien
on, and shall not attempt to place a lien on, or assert an interest in, any of
the Submission Package, Mortgage Loans or proceeds thereof to
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secure the payment of its fees and expenses. The obligations of the Sellers
under this Section 8 shall survive the termination of this Agreement and the
resignation or removal of Custodian.
(b) Custodian or any successor Custodian may resign at any time by
giving sixty (60) days' prior written notice to Sellers and Purchaser. Such
resignation shall take effect upon the earlier of (i) the appointment of a
successor Custodian by Purchaser and delivery of all the Submission Packages and
any related documents in Custodian's possession to the successor Custodian in
accordance with the written or electronic direction of the Purchaser, and (ii)
the delivery of all the Submission Packages and any related documents in
Custodian's possession to the Purchaser or its designee pursuant to (c) below
after expiration of said sixty (60) days. Sellers shall be responsible for
reimbursing Custodian for its expenses associated with delivery of the
Submission Packages and related documents to Purchaser.
(c) In the event of any such resignation, Custodian shall promptly
transfer to the successor Custodian all Submission Packages and related
documents in Custodian's possession and the successor Custodian shall hold such
Submission Packages and related documents in accordance with this Agreement. If
Purchaser directs the removal of Custodian, Purchaser shall be responsible for
all expenses associated with the transfer of the Submission Packages and any
related documents in Custodian's possession and for any fee of the successor
Custodian in excess of the fees of the initial Custodian hereunder. In any case,
Custodian shall not be responsible for payment of fees to any successor
Custodian. The Purchaser shall have sixty (60) days in which to appoint and
designate an acceptable successor Custodian. If the Purchaser fails to appoint a
successor Custodian within such 60-day period, then Custodian shall deliver
possession and custody of the Submission Packages and any related Submission
Packages in Custodian's possession to Purchaser at the address specified on the
cover page hereof, or if a timely written designation is received by Custodian,
to any designee of Purchaser.
(d) Custodian shall have responsibility only for the Submission
Packages and their contents which have been actually delivered to it and which
have not been released to the related Seller, Purchaser, the Takeout Investor,
Agency or Assignee or their respective agent or designee in accordance with this
Agreement. The standard of care to be exercised by Custodian in the performance
of its duties under this Agreement shall be to exercise the same degree of care
as Custodian exercises when it holds similar mortgage loan documents as security
for similar loans or warehouse loans. Custodian is an agent, bailee and
custodian only and is not intended to be, nor shall it be construed to be
(except only as agent, bailee and custodian), a representative, trustee or
fiduciary of or for either the related Seller, the Agency, Purchaser or
Assignee. With respect to its obligations under this Agreement, the Custodian
shall not be bound in any way by any agreement or contract other than this
Agreement and the exhibits and schedules hereto and any other agreement to which
it is a party. The Custodian shall not be required to ascertain or inquire as to
the performance or observance of any of the conditions or agreements to be
performed or observed by any other party, except as specifically provided in
this Agreement and the exhibits and schedules hereto. The Custodian disclaims
any responsibility for the validity or accuracy of the recitals to this
Agreement and any representations and warranties contained herein, unless
specifically identified as recitals, representations or warranties of the
Custodian.
(i) Throughout the term of this Agreement, the Custodian shall have
no responsibility for ascertaining the value, collectability,
insurability, recordability,
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enforceability, effectiveness or suitability of any Collateral, the title
of any party therein, the validity or adequacy of the security afforded
thereby, or the validity of this Agreement (except as to Custodian's
authority to enter into this Agreement and to perform its obligations
hereunder).
(ii) The Custodian shall not be under any duty to determine or pass
upon the genuineness, validity or legal sufficiency of any of the
documents constituting part of any Submission Package, and shall be
entitled to assume that all documents constituting part of such files are
genuine and valid and that they are what they purport to be, and that any
endorsements or assignments thereof are genuine and valid.
(iii) No provision of this Agreement shall require the Custodian to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any
of its rights and powers, if, in its sole judgment, it shall believe that
repayment of such funds or indemnity satisfactory to it against such risk
or liability is not assured to it.
(iv) The Custodian is not responsible for preparing or filing any
reports or returns relating to federal, state or local income taxes with
respect to this Agreement, other than for the Custodian's compensation or
for reimbursement of expenses.
(v) In the absence of bad faith on the part of Custodian, Custodian
may conclusively rely, as to the truth of the statements expressed
therein, upon any certificates furnished to Custodian which conform to the
requirements of this Agreement.
(vi) Neither the Custodian nor any of its officers, directors,
employees and agents shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with any
direction of the Purchaser given under this Agreement.
(vii) Custodian may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
(viii)Custodian may consult with counsel and the advice or any
written opinion of counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in
good faith and in accordance with such advice or opinion of counsel.
(ix) Custodian shall not invest or reinvest any cash held in the
Disbursement Account in the absence of timely and specific written
investment direction from the Purchaser. In no event shall Custodian be
liable for the selection of investments or for investment losses incurred
thereon. Custodian shall have no liability in respect of losses incurred
as a result of the liquidation of any investment prior to its stated
maturity or as a result of the failure of the Purchaser to provide timely
written investment direction.
(x) Sellers hereby jointly and severally indemnify, defend and hold
Custodian and its officers, directors, employees and agents harmless from
and against any claim,
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legal action, liability or loss that is initiated against or incurred by
Custodian and its officers, directors, employees and agents, including
court costs and reasonable attorney's fees and disbursements, in
connection with Custodian's performance of its duties under this
Agreement, including those involving ordinary negligence, but excluding
only those involving gross negligence or willful misconduct of Custodian.
Notwithstanding anything to the contrary contained herein, this provision
shall survive the termination of this Agreement. The Custodian shall have
the power to employ such agents as it may reasonably deem necessary or
appropriate in the performance of its duties and the exercise of its
powers under this Agreement.
(e) Neither the Custodian nor any of its officers, directors,
employees and agents shall incur any liability to any Person for its acts or
omissions hereunder, except as may result from its negligence or willful
misconduct. The parties each (for itself and any person or entity claiming
though it) hereby releases, waives, discharges, exculpates and covenants not to
sue the Custodian for any action taken or omitted under this Agreement except to
the extent caused by the Custodian's negligence or willful misconduct.
Notwithstanding anything contained herein to the contrary, the parties agree
that no party hereunder nor any of its directors, officers or employees shall be
liable to any other party hereunder for any special, consequential or punitive
damages whatsoever.
(f) Custodian undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement, it being expressly understood
that there are no implied duties hereunder. Whenever in the administration of
the provisions of this Agreement the Custodian shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering
any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Custodian, be deemed to be conclusively proved and
established by a certificate signed by one of the Purchaser's officers and
delivered to the Custodian and such certificate, in the absence of negligence or
bad faith on the part of the Custodian, shall be full warrant to the Custodian
for any action taken, suffered or omitted by it under the provisions of this
Agreement upon the faith thereof.
Section 9. Assignment by Purchaser. Purchaser may assign all of its
right, title and interest in and to some or all of the Mortgage Loans purchased
by Purchaser pursuant to the Purchase Agreement and all rights of Purchaser
under the Purchase Agreement (and this Agreement) in respect of such Mortgage
Loans represented thereby to Assignee. Purchaser shall provide written notice to
Custodian of any such assignment. The failure of Purchaser to give such notice
shall not affect the validity of any such assignment. If the Purchaser does,
however, fail to give such notice to the Custodian, then the Assignee may give
such notice to the Custodian. Sellers hereby irrevocably consent to any such
assignment to the extent permitted by law. Subject to any limitations in any
agreement between such Assignee and the Purchaser, such Assignee may, upon
notice as provided in Section 15 hereof, directly enforce and exercise such
rights under this Agreement that have been assigned to it and, until otherwise
notified by such Assignee, the Purchaser shall no longer have any of such
rights. In accordance with the provisions of the Electronic Tracking Agreement,
the related Seller shall (1) cause each Mortgage Loan that is to be sold to the
Purchaser on a Purchase Date the Mortgage for which is recorded in the name of
MERS to be designated a MERS Mortgage Loan on the related Loan
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Identification Data and (2) cause the Purchaser to be designated an Associated
Member (as defined in the Electronic Tracking Agreement) with respect to each
such MERS Mortgage Loan. Subject to any limitations in any agreement between
Assignee and Purchaser, Assignee may, upon notice of Purchaser's default as
provided in Section 3(b) hereof, directly enforce and exercise such rights under
this Agreement that have been assigned or pledged to it and, until otherwise
notified by Assignee, Purchaser shall no longer have any of such rights.
Custodian shall assume that any assignment from Purchaser to Assignee is subject
to no limitations that are not expressly set forth in this Agreement.
Section 10. Insurance. Custodian shall, at its own expense, maintain
at all times during the existence of this Agreement such (a) fidelity insurance,
(b) theft of documents insurance, (c) forgery insurance and (d) errors and
omissions insurance as Custodian deems appropriate, prudent and customary.
Section 11. Representations, Warranties and Covenants.
(a) By Custodian. Custodian hereby represents and warrants to, and
covenants with, Sellers and Purchaser that, as of the date hereof and at all
times while Custodian is performing services under this Agreement:
(i) Custodian is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and fully
satisfies the requirements for acting as a GNMA custodian, a Fannie Mae
custodian and a Freddie Mac custodian; and
(ii) Custodian has the full power and authority to hold each
Mortgage Loan and to enter into and perform its duties and obligations as
contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement and has duly executed and
delivered this Agreement, and this Agreement constitutes a legal, valid
and binding obligation of Custodian, enforceable against it in accordance
with its terms, except as the enforcement thereof may be limited by
applicable receivership, conservatorship or similar debtor relief laws and
except that certain equitable remedies may not be available regardless of
whether enforcement is sought in equity or law.
(b) By Sellers. Sellers hereby represent and warrant to, and
covenant with, Custodian and Purchaser that, as of the date hereof and
throughout the term of this Agreement:
(i) Sellers are duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; and
(ii) Sellers have the full power and authority to hold each Mortgage
Loan and to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement and has duly executed and delivered this
Agreement, and this Agreement constitutes a legal, valid and binding
obligation of Sellers, enforceable against it in accordance with its
terms, except as the enforcement thereof may be limited by applicable
receivership, conservatorship or
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similar debtor relief laws and except that certain equitable remedies may
not be available regardless of whether enforcement is sought in equity or
law.
(c) By Purchaser. Purchaser hereby represents and warrants to, and
covenants with, Custodian and Sellers that, as of the date hereof and throughout
the term of this Agreement:
(i) Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; and
(ii) Purchaser has the full power and authority to hold each
Mortgage Loan and to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement and has duly executed and
delivered this Agreement, and this Agreement constitutes a legal, valid
and binding obligation of Purchaser, enforceable against it in accordance
with its terms, except as the enforcement thereof may be limited by
applicable receivership, conservatorship or similar debtor relief laws and
except that certain equitable remedies may not be available regardless of
whether enforcement is sought in equity or law.
Section 12. No Adverse Interests. By its acceptance of each
Submission Package, Custodian covenants and warrants to Purchaser that: (a) as
of the date of payment by Purchaser of the Purchase Price, Custodian, solely in
its capacity as Custodian, (i) holds no adverse interests, by way of security or
otherwise, in the related Mortgage Loan, and (ii) has no interest in or lien
upon the Submission Packages which it holds as custodian for Purchaser; and (b)
Custodian hereby waives and releases any such interest in such Mortgage Loan
which it, acting solely in its capacity as Custodian, has or which it may
thereafter acquire prior to the time of release of such Mortgage Loan from the
terms of this Agreement.
Section 13. Amendments. This Agreement may be amended only by
written agreement of Sellers, Purchaser and Custodian except that, if this
Agreement shall have been assigned by Purchaser with written notice of such
assignment given to Sellers and Custodian, no amendment shall be effective
unless the amendment is also signed by Assignee. Purchaser shall give at least
five (5) days'prior written notice to Assignee of any proposed amendment to this
Agreement and shall furnish Assignee with a copy of each such amendment within
five (5) days after it is executed and delivered. This Agreement, together with
the Exhibits, Schedules and other writings referred to herein or delivered
pursuant hereto, constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof.
Section 14. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
Section 15. Agreement for Exclusive Benefit of Parties; Assignment.
This Agreement is for the exclusive benefit of the parties hereto and their
respective successors and permitted assigns hereunder and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever. This Agreement shall bind the parties hereto and their
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respective successors, but, except for the assignments provided in Sections 3(b)
and 9, shall not be assigned or pledged by any party without the prior written
consent of the other parties. Written notice from Assignee to Custodian (with a
copy to Purchaser) that Purchaser has defaulted in any material respect under
any funding or loan agreement relating to the financing of Purchaser's purchase
of Mortgage Loans shall be conclusive for all purposes of this Agreement.
Section 16. Effect of Invalidity of Provisions. In case any one or
more of the provisions contained in this Agreement are or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby, unless the remaining
provisions cause this Agreement to fail its essential purpose.
Section 17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of laws rules.
Section 18. Consent to Service. Each party irrevocably consents to
the service of process by registered or certified mail, postage prepaid, to it
at its address given in or pursuant to Section 19.
Section 19. Notices. Any notices, consents, directions and other
communications given under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered by facsimile or electronic
transmission, or personally delivered at, or sent by overnight courier to the
addresses of the parties hereto set forth on the cover page hereof or such other
address as any party shall give in a notice to the other parties pursuant to
this Section 19.
Section 20. Certification. Custodian hereby acknowledges that each
time it issues a Notice of Intent to Issue Trust Receipt and attaches a list of
Mortgage Loans, it is making an express representation and warranty to Purchaser
that it has reviewed each Submission Package listed on the Request for
Certification as specified in Sections 4(a) and (b) with respect to the related
Mortgage Loan.
Section 21. Construction. The headings in this Agreement are for
convenience only and are not intended to influence its construction. References
to Sections and Exhibits in this Agreement are to the Sections of and Exhibits
to this Agreement. The Exhibits are part of this Agreement. In this Agreement,
the singular includes the plural, the plural the singular, and the words "and"
and "or" are used in the conjunctive or disjunctive as the sense and
circumstances may require.
Section 22. Submission to Jurisdiction.
With respect to any claim arising out of this Agreement each party (a)
irrevocably submits to the nonexclusive jurisdiction of the courts of the State
of New York and the United States District Court located in the Borough of
Manhattan in New York City, and (b) irrevocably waives (i) any objection which
it may have at any time to the laying of venue of any suit, action or proceeding
arising out of or relating hereto brought in any such court, (ii) any claim that
any such suit, action or proceeding brought in any such court has been brought
in any inconvenient forum and (iii) the right to object, with respect to such
claim, suit, action or proceeding brought in any such court,
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that such court does not have jurisdiction over such party. Nothing herein will
be deemed to preclude any party hereto from bringing an action or proceeding in
respect of this Agreement in any jurisdiction other than as set forth in this
Section 22.
Section 23. WAIVER OF JURY TRIAL.
EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 24. Joint and Several Liability.
The liability of the Sellers hereunder is joint and several. The Sellers hereby:
(a) acknowledge and agree that the Purchaser and the Custodian shall have no
obligation to proceed against one Seller before proceeding against the other
Seller, (b) waive any defense to their obligations under this Agreement, based
upon or arising out of the disability or other defense or cessation of liability
of one Seller versus the other or of any other Seller, and (c) waive any right
of subrogation or ability to proceed against any Person until all amounts owed
to Purchaser and Custodian by Sellers pursuant to this Agreement are paid in
full.
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IN WITNESS WHEREOF, Sellers, Purchaser and Custodian have caused this
Agreement to be duly executed as of the date and year first above written.
AMERICAN HOME MORTGAGE CORP. (Seller)
By: /s/ Michael Strauss
------------------------------------
Name: Michael Strauss
Title: President
COLUMBIA NATIONAL, INCORPORATED (Seller)
By: /s/ Michael Strauss
------------------------------------
Name: Michael Strauss
Title: President
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC. (Purchaser)
By: /s/ Michael Pillari
------------------------------------
Name: Michael Pillari
Title: Managing Director
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By: /s/ Andrew Hays
------------------------------------
Name: Andrew Hays
Title: Associate
By: /s/ Aimee Kemmeter
------------------------------------
Name: Aimee Kemmeter
Title: Assistant Vice President
EXHIBITA-1
CASH WINDOW SUBMISSION PACKAGE
With respect to each Mortgage Loan being offered by Seller for sale
to Purchaser pursuant to a Cash Window Transaction, Seller shall deliver and
release to Custodian the following documents:
(i) The original Mortgage Note bearing all intervening endorsements
from the originator to the Seller endorsed, "Pay to the order of _______,
without recourse" and signed in the name of Seller by an authorized
officer of Seller; (if applicable), the original assumption agreement,
together with the original of any surety agreement or guaranty agreement
relating to the Mortgage Note or any such assumption agreement, and if the
Mortgage Note has been signed by a third party on behalf of the Mortgagor,
the original power of attorney or other instrument that authorized and
empowered such Person to sign or a copy of such power of attorney together
with an Officer's Certificate (or a certificate from the county recorder's
office) certifying that such copy presents a true and correct reproduction
of the original and that such original has been duly recorded or delivered
for recordation in the appropriate records of the jurisdiction in which
the related Mortgaged Property is located and if Freddie Mac is the Agency
for the related Mortgage Loan, the Freddie Mac loan number should appear
on the top right hand corner of the Mortgage Note;
(ii) A Mortgage meeting one of the following requirements:
(A) The original Mortgage bearing evidence that the
Mortgage has been duly recorded in the records of the jurisdiction
in which the Mortgaged Property is located; or
(B) A copy of the Mortgage together with either (i) an
officer's certificate (which may be a blanket officer's certificate
of Seller covering all such Mortgage Loans), (ii) a certificate from
the county recorder's office, or (iii) a certificate from the
related title company or escrowed closing agent, in such case that
such copy represents a true and correct reproduction of the original
Mortgage and that such original has been duly recorded or delivered
for recordation in the appropriate records of the jurisdiction in
which the Mortgaged Property is located;
(iii) With respect to each Mortgage Loan that has been designated
for sale to Fannie Mae, an original Assignment of Mortgage to Fannie Mae
in recordable form but unrecorded signed in the name of Seller by an
authorized officer;
(iv) If Seller did not originate the Mortgage Loan, all original
intervening assignments duly executed and acknowledged and in recordable
form, evidencing the
chain of mortgage assignments from the originator of the Mortgage Loan to
Seller, and a copy of each such intervening mortgage assignment, together
with an Officer's Certificate, or a certificate from the recorder's
office, certifying that such copy represents a true and correct
reproduction of the original of such instrument and that such original has
been duly recorded or delivered for recordation in the appropriate records
of the jurisdiction where the Mortgaged Property is located;
(v) Except with respect to any MERS Mortgage Loan, an original
Assignment of Mortgage, in blank, in recordable form but unrecorded (which
Assignment of Mortgage may be in the form of a blanket assignment of two
or more such Mortgages to the extent permitted by applicable law) signed
in the name of Seller by an authorized officer;
(vi) A Warehouse Lender's Release, from any Warehouse Lender having
a security interest in the Mortgage Loans or if there is no Warehouse
Lender with respect to such Mortgage Loans, a Seller's Release, from
Seller, addressed to Purchaser, releasing any and all right, title and
interest in such Mortgage Loans.
(vii) Delivery Instructions.
(viii) Originals, if any, of each modification agreement.
(ix) The Applicable Agency Documents, listed on Exhibit A-2 and
Exhibit A-3.
(x) The original policy of title insurance, or, if the policy has
not yet been issued, a written commitment or interim binder issued by the
title insurance company, dated and certified as of the date the Mortgage
Loan was funded, with a statement by the title insurance company or
closing attorney on such binder or commitment that the priority of the
lien of the related Mortgage during the period between the date of the
funding of the related Mortgage Loan and the date of the related title
policy (which title policy shall be dated the date of recording of the
related Mortgage) is insured.
(xi) with respect to each MERS Mortgage Loan, a MERS Report.
(xii) A Trade Assignment in the form of Exhibit K-1 or Exhibit K-2
attached hereto, which shall be fully completed and executed by both the
Takeout Investor and the Seller.
All documents delivered to Custodian shall be delivered by Seller in an
appropriate file folder, properly secured, and clearly marked with Seller's
appropriate Freddie Mac or Fannie Mae loan number identifying such Mortgage Loan
in the form and order required by the Agency. In those cases where a copy of any
intervening mortgage assignment, or an unrecorded original of any intervening
mortgage assignment are delivered to the Custodian with a certification by
Seller that the originals are being sent for recordation, Seller shall promptly
cause the original of such instrument to be recorded.
EXHIBIT A-2
Freddie Mac DOCUMENT LIST
(i) Freddie Mac Form 1 (Fixed-Rate Mortgage Purchase Contract
Conventional Home Mortgages - Original Cash) or Freddie Mac Form 9
(Fixed-Rate Mortgage Purchase Contract Conventional Home Mortgages - Gold
Cash), or Freddie Mac Form 2 (Adjustable Rate Purchase Contract
Conventional Home Mortgages).
(ii) Freddie Mac Form 1034 (Custodial Certification Schedule).
(iii) Freddie Mac Form 996 (Warehouse Lender Release of Security
Interest).1
(iv) Freddie Mac Form 987 (Wire Transfer Authorization for a Cash
Warehouse Delivery).
(v) Freddie Mac Form 960 (Transfer of Servicing) (if supplied by
Seller)
- --------
1 Consisting either of the form submitted by Seller to Custodian naming
Purchaser as Warehouse Lender or in the circumstances contemplated by Section
3(d), a substituted form completed by Custodian naming the Purchaser as
Warehouse Lender.
EXHIBIT A-3
Fannie Mae DOCUMENT LIST
(i) Either a Standard Mandatory Delivery Commitment or a Negotiated
Mandatory Delivery Commitment or a Negotiated Market-Rate Standby Commitment.
(ii) Fannie Mae Form 1068 (Fixed-Rate, Graduated-Payment, or
Growing-Equity Mortgage Loan Schedule) or Fannie Mae Form 1069 (Adjustable-Rate
Mortgage Loan Schedule).
(iii) Fannie Mae Form 360 (Incumbency Certificate) (executed by
Seller naming person authorized to instruct Fannie Mae on where to wire funds).2
(iv) All original intervening assignments (if any) duly executed and
acknowledged and in recordable form, but unrecorded.
- --------
2 If applicable.
EXHIBIT A-4
[LETTERHEAD OF PURCHASER]
FANNIE MAE MASTER BAILEE LETTER
____________ __ , ____
[______________]
Attention:
Ladies and Gentlemen:
In connection with its Conforming Whole Loan Purchase: Cash Window
Program, the undersigned GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
("Purchaser") shall from time to time, cause Deutsche Bank National Trust
Company, as custodian ("Custodian"), to deliver to Fannie Mae original
promissory notes ("Mortgage Notes") evidencing certain mortgage loans ("Mortgage
Loans"), along with certain other documents comprising the related files
("Mortgage Documents"). Custodian is hereby instructed to prepare and insert a
Notice of Bailment in the form of Schedule A hereto with respect to each
Mortgage Loan ("Notice of Bailment"), in each file of Mortgage Documents
delivered by Custodian to Fannie Mae.
Except as otherwise provided herein, each Mortgage Document so delivered
to Fannie Mae is to be held by Fannie Mae, as agent for Custodian, and subject
to only Purchaser's direction and control.
Upon Purchaser's receipt of all of the proceeds from the sale of a
Mortgage Loan in accordance with the wiring instructions set forth in Fannie
Mae's Form 482 or 1068 all of Purchaser's legal or equitable interest in the
Mortgage Loan shall terminate.
The persons listed on the attached Schedule B are the authorized
representatives ("Authorized Representatives") of Purchaser. Custodian shall not
honor any communication relating to a Mortgage Loan, which is not confirmed by
the written or telephonic consent, confirmed in writing at the request of
Custodian, of an Authorized Representative of Purchaser.
25
Please execute and return the enclosed copy of this Master Bailee Letter
in the enclosed self-addressed envelope.
Sincerely,
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
(Purchaser)
By:
------------------------------------------
Name:
Title:
Agreed to:
Deutsche Bank National Trust Company,
as Custodian
By:
------------------------------------------
Name:
Title:
Dated: As of the date first set forth above
26
SCHEDULE A
TO EXHIBIT A-4
NOTICE OF BAILMENT
[Fannie Mae Address]
Re: [Insert Description of Loan, including
Borrower's Name, Loan Amount and
Fannie Mae's Loan Number]
Ladies and Gentlemen:
Pursuant to the Master Bailee Letter, dated__________, ____ (the "Master
Bailee Letter"), between Greenwich Capital Financial Products, Inc.
("Purchaser") and Deutsche Bank National Trust Company (the "Custodian"), you
are hereby notified that the enclosed original promissory note with respect to
the referenced loan together with certain other documents comprising the related
file with respect to that loan (the "Mortgage Documents") being hereby delivered
to you herewith are to be held by you as agent of Custodian (which holds the
Mortgage Documents as custodian and bailee for the benefit of Purchaser).
Any Mortgage Documents (or portion thereof) not purchased by you in
accordance with the provisions of the Applicable Guide shall be sent to the
Custodian by overnight courier to: [insert address for return of documents].
The proceeds of the sale of each Mortgage Loan accepted for purchase by
you must be remitted immediately upon settlement by you, by wire transfer in
immediately available funds, in accordance with the following wire instructions:
_____________________
_____________________
ABA #___________
A/C #___________
_____________________
Attn: ______________
You shall be responsible for making certain that all of the proceeds from the
sale of the Mortgage Loan are received in accordance with the wire transfer
instructions set forth above and Purchaser's interest in the Mortgage Loan shall
not be released until such funds are received by Purchaser.
Any questions relating to the Mortgage Documents should be referred to the
Purchaser at (203) 625-2700.
Sincerely,
--------------------------------------
By:___________________________________
Name:_________________________________
Title:________________________________
27
SCHEDULE B
TO EXHIBIT A-4
AUTHORIZED REPRESENTATIVES OF PURCHASER
Name Title Authorized Signature
- ---- ----- --------------------
28
EXHIBIT B-1
CONDUIT SUBMISSION PACKAGE
With respect to each Mortgage Loan being offered by Seller for sale to
Purchaser, pursuant to a Conduit Transaction, Seller shall deliver and release
to Custodian the following documents:
(i) The original Mortgage Note bearing all intervening
endorsements from the originator to the Seller endorsed, "Pay to the
order of _______, without recourse" and signed in the name of Seller
by an authorized officer of Seller; (if applicable), the original
assumption agreement, together with the original of any surety
agreement or guaranty agreement relating to the Mortgage Note or any
such assumption agreement, and if the Mortgage Note has been signed
by a third party on behalf of the Mortgagor, the original power of
attorney or other instrument that authorized and empowered such
Person to sign or a copy of such power of attorney together with an
officer's certificate from the Seller (or a certificate from the
county recorder's office) certifying that such copy presents a true
and correct reproduction of the original and that such original has
been duly recorded or delivered for recordation in the appropriate
records of the jurisdiction in which the related Mortgaged Property
is located;
(ii) A Mortgage meeting one of the following
requirements:
(A) The original Mortgage bearing evidence that
the Mortgage has been duly recorded in the records of the
jurisdiction in which the Mortgaged Property is located; or
(B) A copy of the Mortgage together with either
(i) an officer's certificate (which may be a blanket officer's
certificate of Seller covering all such Mortgage Loans), (ii) a
certificate from the county recorder's office, or (iii) a
certificate from the related title company or escrowed closing
agent, in such case that such copy represents a true and correct
reproduction of the original Mortgage and that such original has
been duly recorded or delivered for recordation in the appropriate
records of the jurisdiction in which the Mortgaged Property is
located;
(iii) If Seller did not originate the Mortgage Loan, all
original intervening assignments duly executed and acknowledged and
in recordable form, evidencing the chain of mortgage assignments
from the originator of the Mortgage Loan to Seller, and/or a copy of
each such intervening mortgage assignment, together with either (i)
an officer's certificate (which may be a blanket officer's
certificate of Seller covering all such Mortgage Loans), (ii) a
certificate from the county recorder's office, or (iii) a
certificate from the related title company or escrowed closing
agent, in such case that such copy represents a true and correct
reproduction of the original Mortgage and that such original has
been duly recorded or delivered for recordation in the appropriate
records of the jurisdiction in which the Mortgaged Property is
located;
(iv) Except with respect to any MERS Mortgage Loan, an
original Assignment of Mortgage, in blank, in recordable form but
unrecorded signed in the name of Seller by an authorized officer;
(v) If applicable, a Warehouse Lender's Release, from
any Warehouse Lender having a security interest in the Mortgage
Loans or, or if there is no Warehouse Lender with respect to such
Mortgage Loans, a Seller's Release, from Seller, addressed to
Purchaser, releasing any and all right, title and interest in such
Mortgage Loans;
(vi) Delivery Instructions; and
(vii) A copy of the Commitment.
EXHIBIT B-2
[LETTERHEAD OF CUSTODIAN]
CONDUIT MASTER BAILEE LETTER
___________ __ , ____
[ADDRESS]
[__________]
Attention:
Ladies and Gentlemen:
The undersigned Deutsche Bank National Trust Company ("Custodian"), as
custodian for GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. ("Purchaser") shall
from time to time deliver to ________ ("Takeout Investor") original promissory
notes ("Mortgage Notes") evidencing certain mortgage loans ("Mortgage Loans"),
along with certain other documents comprising the related files ("Custodial
Files") and, in each case, a Notice of Bailment in the form of Schedule A hereto
with respect to each Mortgage Loan ("Notice of Bailment"), for inspection by
Takeout Investor prior to the possible purchase by Takeout Investor of such
Mortgage Loans pursuant to commitments ("Commitments") from certain sellers of
Mortgage Loans ("Sellers"). Prior to its delivery to Takeout Investor, all of
Seller's right, title and interest in each Mortgage Loan and proceeds thereof
shall have been conveyed to Purchaser in accordance with each Seller's agreement
with Purchaser.
Except as otherwise provided herein, each Custodial File so delivered to
Takeout Investor is to be held by Takeout Investor, as agent for Custodian, and
subject to only Purchaser's direction and control until released as provided
herein. The proceeds of the sale of each Mortgage Loan accepted for purchase by
Takeout Investor must be remitted immediately upon settlement by Takeout
Investor, by wire transfer in immediately available funds, in accordance with
the following wire instructions:
_____________________
_____________________
ABA #___________
A/C #____________
_____________________
Attn: ______________
Takeout Investor shall be responsible for making certain that all of the
proceeds from the sale of each Mortgage Loan are received in accordance with the
wire transfer instructions set forth on each Notice of Bailment and Purchaser's
interest in the Mortgage Loans shall not be released until such funds are
received by Purchaser.
Upon Purchaser's receipt of all of the proceeds from the sale of a
Mortgage Loan in accordance with the wiring instructions in the applicable
Notice of Bailment, all of Purchaser's legal or equitable interest in the
Mortgage Loan shall terminate.
All Mortgage Loan documents held by Takeout Investor which are received by
Takeout Investor from Custodian with respect to a Mortgage Loan that is not
purchased must be returned immediately to Custodian at the address for delivery
of documents set forth on the Notice of Bailment. Purchaser reserves the right
at any time, until a Mortgage Loan has been purchased by Takeout Investor, to
demand the return of the related Mortgage Documents to Custodian, and Takeout
Investor agrees to return to Custodian the Mortgage Documents pertaining to a
Mortgage Loan not purchased by Takeout Investor immediately upon such demand by
Purchaser.
The persons listed on the attached Schedule B are the authorized
representatives ("Authorized Representatives") of Purchaser. Takeout Investor
shall not honor any communication from Sellers or any third party relating to a
Mortgage Loan, which is not confirmed by the written or telephonic consent of an
Authorized Representative of Purchaser, or until Purchaser has received the
required amount of proceeds of the sale of such Mortgage Loan.
In the event Takeout Investor is not able for any reason to comply with
the terms of this Bailee Letter, Takeout Investor shall immediately return the
Submission Package to Custodian at the above address.
Takeout Investor acknowledges that the Custodial File is being delivered
in accordance with its instructions. Takeout Investor shall not deliver a
Custodial File to any third party without the prior written consent of Purchaser
unless such third party is a wholly owned subsidiary of Takeout Investor or a
custodian and bailee of Takeout Investor who is receiving such Custodial File
with written notice of the bailment created by this Master Bailee Letter.
In the event Takeout Investor is not able for any reason to comply with
the terms of this Master Bailee Letter, Takeout Investor shall immediately
return each Custodial File in Takeout Investor's possession to Custodian at the
address for delivery of documents set forth in the related Notice of Bailment.
No deviation in performance of the terms of any previous bailment
agreement will alter any of Takeout Investor's duties or responsibilities as
provided herein.
By accepting delivery of a Custodial File containing a Notice of Bailment,
Takeout Investor shall be bound by the terms hereof. Please execute and return
the enclosed copy of this Master Bailee Letter in the enclosed self-addressed
envelope.
Sincerely,
Deutsche Bank National Trust Company,
as Custodian
By:
-----------------------------------
Name:
Title:
Dated: As of the date first set forth
above
Agreed to:
[CONDUIT]
(Takeout Investor)
By:
--------------------------------
Name:
Title:
Dated: As of the date first set forth above
SCHEDULE A
TO EXHIBIT B-2
NOTICE OF BAILMENT
[Conduit Address]
Re: [Insert Description of Loan, including
Borrower's Name, Loan Amount and
Fannie Mae's Loan Number]
Ladies and Gentlemen:
Pursuant to the Master Bailee Letter, dated , ____ (the "Master Bailee
Letter"), between you and Deutsche Bank National Trust Company (the
"Custodian"), you are hereby notified that the enclosed original promissory note
with respect to the referenced loan together with certain other documents
comprising the related file with respect to that loan (the "Mortgage Documents")
being hereby delivered to you herewith are to be held by you as agent of
Custodian (which holds the Mortgage Documents as custodian and bailee for the
benefit of Greenwich Capital Financial Products, Inc. ("Purchaser")).
Any Mortgage Documents (or portion thereof) not purchased by you in
accordance with the provisions of the Applicable Guide shall be sent to the
Custodian by overnight courier to: [insert address for return of documents].
In the event you elect to purchase the Mortgages subject to the Master
Bailee Letter, you shall pay the Trade Price to the Purchaser by wire transfer
based upon the following instructions:
_____________________
_____________________
ABA #___________
A/C #____________
_____________________
Attn: ______________
Any questions relating to the Mortgage Documents should be referred to the
Purchaser at (203) 625-2700.
Sincerely,
By:
------------------------------------------
Name:
Title:
SCHEDULE B
TO EXHIBIT B-2
AUTHORIZED REPRESENTATIVES OF PURCHASER
Name Title Authorized Signature
- ---- ----- --------------------
___________________ ___________________ _____________________
___________________ ___________________ _____________________
___________________ ___________________ _____________________
___________________ ___________________ _____________________
EXHIBIT C
REQUEST FOR CERTIFICATION
- ---------------------------------- -- ------------------------------------------------------ -- ------------------------------------
Type of Transaction: (0)Cash Window Transaction (0)Conduit Transaction
- ---------------------------------- -- ------------------------------------------------------ -- ------------------------------------
Mortgagor ARM data (margin,
Original Loan First and Property Address (street, Original index,cap,floor,1st rate
Loan # Amount Last Name city, state, zip) Loan Term Note Rate adj, max rate, 1st pay date)
- ------------ ---------------- --------------- --------------------------- -------------- ------------- -----------------------------
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- ---------------------------------- ----------------------------
Type of Transaction: (0)Conduit Transaction
- ---------------------------------- ----------------------------
Loan Type
Original Loan (fixed or
Loan # Amount Maturity Date adjustable
- ------------ ---------------- -------------- ------------
- ------------ ---------------- -------------- ------------
- ------------ ---------------- -------------- ------------
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- ------------ ---------------- -------------- ------------
EXHIBIT D
TRUST RECEIPT
MORTGAGE LOANS
No. ____ Date:
Deutsche Bank National Trust Company, as custodian (the "Custodian"),
certifies that on the date of this Trust Receipt, GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC. ("Purchaser") is the registered owner of this Trust Receipt
evidencing ownership of certain mortgage loans (the "Mortgage Loans") listed by
identifying number on the schedule attached to this Trust Receipt and further
identified in the books and records of the Custodian, interim serviced by
[____________] ("Seller"). The Mortgage Note and copy of the recorded Mortgage
(or deed of trust) for each Mortgage Loan are held by Custodian, pursuant to the
terms and conditions of that certain Custodial Agreement dated as of _____, 200_
(the "Agreement") among Purchaser, Seller and Custodian. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Trust Receipt is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the holder of
this Trust Receipt by virtue of the acceptance hereof assents and by which such
holder is bound.
Any transfer of this Trust Receipt may be registered upon presentation of
this Trust Receipt by the transferee hereof, duly assigned to the transferee, at
the office of the Custodian.
This Trust Receipt supersedes any Trust Receipt bearing an earlier date.
This Trust Receipt shall not be valid or become obligatory for any purpose
unless and until the Certificate of Authentication appearing below has been duly
executed by the Custodian.
IN WITNESS WHEREOF, the Custodian has caused this Trust Receipt to be duly
executed.
Deutsche Bank National Trust Company,
as Custodian
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This Trust Receipt is one of
the Trust Receipts issued under
the above-described Agreement.
Dated:
By:
-----------------------------
Authorized Officer
TRUST RECEIPT NO.
MORTGAGE LOANS
Following are the identifying numbers of the Mortgage Loans subject to this
Trust Receipt:
EXHIBIT D-1
NOTICE OF INTENT TO ISSUE TRUST RECEIPT
MORTGAGE LOANS
No. ____ Date:
Deutsche Bank National Trust Company as custodian (the "Custodian"),
hereby notifies GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. ("Purchaser") that
Custodian shall issue a Trust Receipt certifying that Purchaser is the
registered owner of certain mortgage loans (the "Mortgage Loans") listed by
identifying number on the schedule attached to this Notice of Intent to Issue
Trust Receipt and further identified in the books and records of the Custodian,
interim serviced by __________ ("Seller").
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Custodian
By:
---------------------------------
Authorized Officer
MORTGAGE LOANS
Following are the identifying numbers of the Mortgage Loans subject to this
Notice of Intent to Issue Trust Receipt:
EXHIBIT E-1
[WAREHOUSE LENDER'S RELEASE]
Greenwich Capital Financial Products, Inc.
Ladies and Gentlemen:
We hereby release all right, interest or claim of any kind with respect to
the mortgage loan(s) referenced below, such release to be effective
automatically without any further action by any party, upon payment in full, in
one or more installments, from Greenwich Capital Financial Products, Inc., in
accordance with the wire instructions which we delivered to you in a letter
dated _______ , 200__ ,in immediately available funds, of an aggregate amount
equal to the product of A multiplied by B (such product being rounded to the
nearest $0.01) multiplied by C.*
Loan * Mortgagor Address City State Zip
- ------ --------- ------- ---- ----- ---
Very truly yours,
[WAREHOUSE LENDER]
By:
---------------------------
Name:
Title:
* A= weighted average trade price
B = principal amount of the mortgage loans
C = 1 minus the discount set forth on the related
Funding Confirmation
EXHIBIT E-2
Date:
[WAREHOUSE LENDER'S WIRE INSTRUCTIONS]
Greenwich Capital Financial Products, Inc.
Re: Greenwich Capital Financial Products, Inc.
Whole Loan Purchase Program with [Seller]
Ladies and Gentlemen:
Set forth below are [Warehouse Lender's] wire instructions applicable to
the above-referenced Whole Loan Purchase Program.
Wire Instructions:
Bank Name:
City, State:
ABA#:
Account #:
Account Name:
Please acknowledge receipt of this letter in the space provided below.
This letter supersedes and replaces (i) any prior notice specifying the name of
[Warehouse Lender] and setting forth wire instructions and (ii) any contrary
wire instructions contained in any form of release delivered by [Warehouse
Lender] to [Purchaser] shall remain in effect until superseded and replaced by a
letter, in the form of this letter, executed by each of us and acknowledged by
you.
Very truly yours,
[SELLER]
By:
--------------------------------
Name:
Title:
[WAREHOUSE LENDER(S)](3)
By:
--------------------------------
Name:
Title:
Receipt Acknowledged By:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
--------------------------------
Name:
Title:
- --------
3 The authorized officer of each Warehouse Lender executing this letter must be
the same authorized officer as signs the Warehouse Lender's Release. Not
applicable if there is no Warehouse Lender.
EXHIBIT F-1
[SELLER'S RELEASE]
Greenwich Capital Financial Products, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Ladies and Gentlemen:
With respect to the mortgage loan(s) referenced below (a) we hereby
certify to you that the mortgage loan(s) is not subject to a lien of any
warehouse lender and (b) we hereby release all right, interest or claim of any
kind with respect to such mortgage loan, such release to be effective
automatically without any further action by any party upon payment from
Purchaser to Seller of an aggregate amount equal to the product of A multiplied
by B (such product being rounded to the nearest $0.01) multiplied by C* in
accordance with our wire instructions in effect on the date of such payment.
Loan Mortgagor Street Address City State Zip
- ---- --------- -------------- ---- ----- ---
Very truly yours,
[SELLER]
By:
---------------------------------------
Name:
Title:
*A` weighted average trade price
B` principal amount of the mortgage loan(s)
C` 1 minus the discount set forth on the
related funding confirmation
EXHIBIT F-2
Date:
[SELLER'S WIRE INSTRUCTIONS]
Greenwich Capital Financial Products, Inc.
Re: Custodial Agreement dated as
of January 1, 2004, among Greenwich Capital Financial
Products, Inc., American Home Mortgage Corp., Columbia National,
Incorporated and Deutsche Bank National Trust Company
Ladies and Gentlemen:
Capitalized terms used herein and not defined herein shall have the
meanings ascribed to such terms in the above-referenced Custodial Agreement.
Set forth below are the Seller's Wire Instructions applicable to the
above-referenced Custodial Agreement.
Wire Instructions:
Bank Name:
City, State:
ABA#:
Account #:
A/C Name:
Please acknowledge receipt of this letter in the space provided below and
return it to Seller. This letter supersedes and replaces any prior notice
specifying the name of Seller and the Seller's Wire Instructions and shall
remain in effect until superseded and replaced by a letter, in the form of this
letter, executed by us and acknowledged by you.
Very truly yours,
[SELLER](4)
By:
--------------------------
Name:
Title:
Receipt acknowledged by:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
---------------------------
Name:
Title:
- --------
(4) The authorized officer executing this letter must be the same authorized
officer as signs the Seller's Release. Applicable only if there is no Warehouse
Lender.
Exhibit G-1
[PURCHASER'S WIRE INSTRUCTIONS TO SELLER]
Wire Instructions:
Bank Name:
City, State:
ABA#:
Account #:
A/C Name:
EXHIBIT G-2
[PURCHASER'S WIRE INSTRUCTIONS TO CUSTODIAN]
Date:
Deutsche Bank National Trust Company
1761 St. Andrew Place
Santa Ana, CA 92705
Re: Whole Loan Purchase Program
Ladies and Gentlemen:
Set forth below are the Purchaser's Wire Instructions to Custodian (as
defined in all Conforming Custodial Agreements used in the above-referenced
program).
Wire Instructions:
Bank Name:
City, State:
ABA #:
Account #:
Account Name:
Please acknowledge receipt of this letter in the space provided below and
return it to Greenwich Capital Financial Products, Inc. ("Purchaser"). This
letter supersedes and replaces any prior notice specifying the name of Purchaser
and the Purchaser's Wire Instructions to Custodian and shall remain in effect
until superseded and replaced by a letter, in the form of this letter, executed
by us and acknowledged by you.
Very truly yours,
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
---------------------------------
Name:
Title:
Receipt acknowledged by:
Deutsche Bank National Trust Company,
as Custodian
[CUSTODIAN]
By:
---------------------
Name:
Title:
EXHIBIT G-3
[PURCHASER'S DELIVERY INSTRUCTIONS TO CUSTODIAN]
[CUSTODIAN]
[ADDRESS]
Attention:
Re: Delivery of Submission Package
Dear ______:
Please deliver, via overnight courier, each of the Submission Packages
relating to the Mortgage Loans listed below to:
Very truly yours,
[PURCHASER]
By:
---------------
Title:
Initially capitalized terms are defined in the Custodial Agreement
dated as of January 1, 2004, among Greenwich Capital Financial Products,
Inc., American Home Mortgage Corp., Columbia National, Incorporated and
Deutsche Bank National Trust Company.
Very truly yours,
[PURCHASER]
By:
---------------------
Title:
EXHIBIT H
[NOTICE BY ASSIGNEE TO CUSTODIAN OF PURCHASER'S DEFAULT]
[Custodian]
[Address]
Re: Whole Loan Purchase Program
Ladies and Gentlemen:
Notice is hereby given that Purchaser has materially defaulted in its
obligations under an agreement between Assignee and Purchaser relating to the
financing by Assignee of Purchaser's purchase of Mortgage Loans described on
Schedule 1 hereto. Assignee hereby (i) directs that Custodian act with respect
to the related mortgage files solely in the capacity of custodian for, and
bailee of, Assignee, (ii) directs that Custodian hold such mortgage files for
the exclusive use and benefit of Assignee and (iii) assumes the rights of
Purchaser to furnish instructions to Custodian as to the disposition of such
mortgage files and such rights shall be exercisable solely by Assignee.
Please acknowledge the foregoing by signing below and returning a copy of
this notice to us at [address]
Very truly yours,
[ASSIGNEE]
By:
---------------------
Name:
Title:
RECEIPT ACKNOWLEDGED:
Deutsche Bank National Trust Company,
as Custodian
By:
Name:
Title:
cc: Greenwich Capital Financial Products, Inc.
EXHIBIT I
[RESERVED]
EXHIBIT J
[LETTERHEAD OF SELLER]
[DATE]
To: [____________]
Please deliver the Submission Package(s) as indicated on the attached list, in
accordance with the terms of the agreement, to the following:
Company Name:
Address:
City, State, Zip:
Attn:
[LETTERHEAD OF SELLER]
[DATE]
LOANS TO BE DELIVERED BY CUSTODIAN FOR [SELLER]
Loan #: Borrower's Name: Loan Amount:
------- ---------------- ------------
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
EXHIBIT K-1
[TRADE ASSIGNMENT]
("Takeout Investor")
[Address]
Attention:
Ladies and Gentlemen:
Attached hereto is a correct and complete copy of your confirmation
of commitment (the "Commitment"), trade-dated _, ____, to purchase $ of mortgage
loans (the "Mortgage Loans") at a purchase price of . This is to confirm that
(i) the Commitment is in full force and effect, (ii) the Commitment is hereby
assigned to Greenwich Capital Financial Products, Inc. ("GCFP"), (iii) you will
accept delivery of such Mortgage Loans directly from GCFP, (iv) you will pay
GCFP for such Mortgage Loans, (v) upon GCFP's acceptance of this assignment,
GCFP is obligated to make delivery of such Mortgage Loans to you in accordance
with the attached Commitment and (vi) upon GCFP's acceptance of this assignment,
you will release Seller from its obligation to deliver the Mortgage Loans to you
under the Commitment. Upon GCFP's determination not to accept an assignment,
GCFP will notify you that this assignment is rejected. Not later than 2:00 P.M.
Eastern Standard Time one business day prior to your satisfaction of the
Commitment, you shall fax a purchase confirmation to GCFP at (___) ___-____,
Attention: . Payment will be made to GCFP in immediately available funds.
Very truly yours,
[SELLER]
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Agreed to, confirmed and accepted:
[TAKEOUT INVESTOR]
By:
---------------------------
Name:
-------------------------
Title:
------------------------
EXHIBIT K-2
[TRADE ASSIGNMENT]
(Blanket)
_____("Takeout Investor")
[Address]
Attention:
Ladies and Gentlemen:
This is to confirm that (i) your commitments ("Commitment"), made
from time to time, to purchase mortgage loans (the "Mortgage Loans") from Seller
may be assigned to Greenwich Capital Financial Products, Inc. ("GCFP"), (ii) you
will accept delivery of such Mortgage Loans directly from GCFP, (iii) you will
pay GCFP for such Mortgage Loans, (iv) upon GCFP's acceptance of this assignment
with respect to any Commitment, GCFP will be obligated to make delivery of such
Mortgage Loans to you in accordance with such Commitment and (v) upon GCFP's
acceptance of such assignment with respect to any Commitment, you will release
Seller from its obligation to deliver the related Mortgage Loans to you under
such Commitment but Seller will not be released from any of its other
obligations under the Loan Purchase and Sale Agreement. Your agreement to the
foregoing shall remain in effect until terminated by your giving notice of such
termination to Seller in the form attached hereto as Exhibit 1. Upon GCFP's
determination not to accept an assignment, GCFP will notify you that this
assignment is rejected with respect to the related Commitment. Not later than
9:00 A.M. Eastern Standard Time on the business day that you purchase the
Mortgage Loans, you shall fax a purchase list containing the information
required by the Mortgage Loan Settlement Summary to GCFP at (___) ___-____,
Attention: . You may also transmit such information electronically by 10:00 A.M.
on such business day. Payment will be made to GCFP in immediately available
funds.
Very truly yours,
[SELLER]
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Agreed to, confirmed and accepted:
[TAKEOUT INVESTOR]
By:
---------------------------
Name:
-------------------------
Title:
------------------------
EXHIBIT 1 to EXHIBIT K-2
[WITHDRAWAL OF CONSENT TO BLANKET TRADE ASSIGNMENT]
[Seller] [Address] [Address]
Ladies and Gentlemen:
The undersigned hereby terminates its agreement to Seller's
assignment of Commitments to GCFP, which approval was given pursuant to the
Trade Assignment dated . This termination shall be effective as of but shall not
affect the assignment of any Commitment which assignment was made prior to the
date hereof. Capitalized terms not defined herein shall have the meanings set
forth in the Trade Assignment.
Very truly yours,
[TAKEOUT INVESTOR]
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Copy to: [Purchaser]
SCHEDULE A
LIST OF CONDUITS
----------------
1.
SCHEDULE A
LIST OF CONDUITS
----------------
1.