RECONSTITUTED SERVICING AGREEMENT
EXECUTION
This
Reconstituted Servicing Agreement (this “Agreement”)
dated
as of October 1, 2006, is by and among GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC. (“GCFP”),
GREENWICH CAPITAL ACCEPTANCE, INC. (“GCA”
or
the
“Depositor”),
COUNTRYWIDE HOME LOANS, INC. (“CHL”),
and
COUNTRYWIDE HOME LOANS SERVICING LP, as servicer (the “Servicer”
or
“Countrywide
Servicing”)
and is
acknowledged by XXXXX FARGO BANK, N.A., as trustee (the “Trustee”).
RECITALS
WHEREAS,
GCFP has conveyed certain mortgage loans listed on Exhibit Two hereto (the
“Serviced
Loans”)
to the
Depositor, which in turn has conveyed the Serviced Loans to the Trustee pursuant
to a pooling agreement dated as of October 1, 2006 (the “Pooling
Agreement”),
among
GCFP, GCA and the Trustee;
WHEREAS,
the Serviced Loans were serviced by CHL for GCFP pursuant to a Master Mortgage
Loan Purchase and Servicing Agreement, dated as of April 1, 2003 (the
“MMLPSA”),
as
amended by that certain Amendment Number One, dated as of November 1, 2004
(the
“Amendment
Number One”)
and as
further amended on December 1, 2005 by that certain Amendment Reg AB to the
Master Mortgage Loan Purchase and Servicing Agreement, dated as of December
1,
2005 (the “Amendment
Reg AB,”
and
together with the MMLPSA and Amendment Number One, the “Servicing
Agreement”),
between GCFP and CHL;
WHEREAS,
CHL has assigned its servicing rights under the Servicing Agreement with respect
to the Serviced Loans to Countrywide Servicing;
WHEREAS,
GCFP desires that Countrywide Servicing continue to service the Serviced Loans
and Countrywide Servicing has agreed to do so;
WHEREAS,
Section 24 of the Servicing Agreement provides that, subject to certain
conditions set forth therein, GCFP may assign the Servicing Agreement to any
person to whom any “Mortgage Loan” (as such term is defined in the Servicing
Agreement) is transferred pursuant to a sale or financing. Without limiting
the
foregoing, CHL has agreed, in Section 12 and Section 29 of the Servicing
Agreement, to enter into additional documents, instruments or agreements as
may
be reasonably necessary in connection with any “Pass-Through Transfer” (as such
term is defined in the Servicing Agreement) contemplated by GCFP pursuant to
the
Servicing Agreement; and
WHEREAS,
CHL, Countrywide Servicing and GCFP agree that this Agreement shall constitute
a
“Reconstitution Agreement” (as such term is defined in the Servicing Agreement)
in connection with a Pass-Through Transfer that shall govern the Serviced Loans
for so long as such Serviced Loans remain subject to the provisions of the
Pooling Agreement;
NOW,
THEREFORE, in consideration of the mutual promises contained herein the parties
hereto agree as follows:
Definitions
Capitalized
terms used and not defined in this Agreement (including Exhibit One hereto)
or
in the Servicing Agreement shall have the meanings ascribed to them in the
Pooling Agreement.
Servicing
Countrywide
Servicing agrees, with respect to the servicing of the Serviced Loans, to
perform and observe the duties, responsibilities and obligations that are to
be
performed and observed by the Seller (as such term is defined in the Servicing
Agreement) under the provisions of the Servicing Agreement, except as otherwise
provided herein and on Exhibit One hereto, and that the provisions of the
Servicing Agreement, as so modified, are and shall be a part of this Agreement
to the same extent as if set forth herein in full.
Trust
Cut-off Date
The
parties hereto acknowledge that by operation of Section 11.17 of the Servicing
Addendum to the Servicing Agreement (as modified by this Agreement) the
remittance on November 20, 2006 to be made to the Trust Fund is to include
all
principal collections due after October 1, 2006 (the “Trust
Cut-off Date”),
plus
interest thereon at the weighted average Mortgage Interest Rate collected during
the immediately preceding Due Period, but exclusive of any portion thereof
allocable to a period prior to the Trust Cut-off Date, and taking into account
the adjustments specified in the first paragraph of Section 11.17 of the
Servicing Addendum to the Servicing Agreement.
Servicing
Fee
The
Servicing Fee rate for the Serviced Loans shall be as set forth on the related
Mortgage Loan Schedule on the original sale date of the Mortgage Loans from
CHL
to GCFP (the “Servicing
Fee Rate”).
The
Servicing Fee shall be payable monthly from the interest portion (including
recoveries with respect to interest from Liquidation Proceeds and other
proceeds, to the extent permitted by Section 11.05 of the Servicing Addendum
to
the Servicing Agreement) of the related Monthly Payment collected by the
Servicer (or as otherwise provided under Section 11.05 of the Servicing Addendum
to the Servicing Agreement).
Recognition
of the Trust Fund
1. From
and
after the date hereof Countrywide Servicing and CHL shall recognize the
HarborView 2006-11 Trust Fund (the “Trust
Fund”)
as the
owner of the Serviced Loans, and Countrywide Servicing will service the Serviced
Loans for the Trust Fund as if the Trust Fund and Countrywide Servicing had
entered into a separate servicing agreement for the servicing of the Serviced
Loans in the form of the Servicing Agreement. Pursuant to the Pooling Agreement,
the Trustee shall have the same rights (but not the obligations, except to
the
extent expressly set forth in the Pooling Agreement) as GCFP under the Servicing
Agreement to enforce the obligations of Countrywide Servicing and CHL,
including, without limitation, the enforcement of (i) the document delivery
requirements set forth in Section 6.03 of the Servicing Agreement and (ii)
remedies with respect to representations and warranties made by CHL in the
Servicing Agreement, and shall be entitled to enforce all of the obligations
of
Countrywide Servicing and CHL thereunder insofar as they relate to the Serviced
Loans. CHL and Countrywide Servicing shall look solely to the Trust Fund for
performance of any obligations of GCFP under the Servicing Agreement and the
Trust Fund hereby assumes such obligations. All references to the Purchaser
under the Servicing Agreement insofar as they relate to the Serviced Loans,
shall be deemed to refer to the Trust Fund. Neither CHL nor GCFP shall amend
or
agree to amend, modify, waive, or otherwise alter any of the terms or provisions
of the Servicing Agreement which amendment, modification, waiver or other
alteration would in any way (i) affect the Serviced Loans or CHL’s performance
under the Servicing Agreement with respect to the Serviced Loans without the
prior written consent of the Trustee or (ii) materially and adversely affect
the
interests of the Certificateholders with respect to the Mortgage
Loans.
2
2. The
Trustee shall be entitled to terminate the rights and obligations of Countrywide
Servicing under this Agreement, as provided in Section 14 (Default) of the
Servicing Agreement. Notwithstanding anything herein to the contrary, in no
event shall the Trustee be required to assume any of the obligations of GCFP
under the Servicing Agreement; and in entering into this Agreement, in
connection with the performance by the Trustee of any duties it may have
hereunder, and in the exercise by the Trustee of its rights the parties and
other signatories hereto. Without limitation of the foregoing, any provision
of
the Servicing Agreement requiring GCFP or the Trust Fund, as assignee of GCFP’s
rights and obligations as “Purchaser” under the Servicing Agreement, to
reimburse the Servicer for any costs or expenses shall be satisfied by the
Servicer’s reimbursement of such costs or expenses (except with respect to any
indemnification obligation) from the Custodial Account. Notwithstanding the
foregoing, it is understood that Countrywide Servicing shall not be obligated
to
defend and indemnify and hold harmless the Trust Fund, GCFP and the Trustee
against any losses, damages, penalties, fines, forfeitures, judgments and any
related costs including, without limitation, reasonable and necessary legal
fees, resulting from (i) actions or inactions of the Countrywide Servicing
which
were taken or omitted upon the instruction or direction of the Trust Fund’s
designee, or (ii) the failure of the Trust Fund or the Trust Fund’s designee to
perform the obligations of the “Owner” or “Purchaser” under the Servicing
Agreement.
Warranties
GCFP,
CHL
and Countrywide Servicing mutually warrant and represent that, with respect
to
the Serviced Loans, the Servicing Agreement is in full force and effect as
of
the date hereof and has not been amended or modified in any way with respect
to
the Serviced Loans, except as set forth herein, and no notice of termination
has
been given thereunder.
Representations
Pursuant
to Section 12 of the Servicing Agreement, CHL hereby represents and warrants,
for the benefit of GCFP, GCA, the Trustee and the Trust Fund, that (i) the
representations and warranties set forth in Section 7.01 of the Servicing
Agreement (except with respect to Section 7.01(ix)) are true and correct in
all
material respects as of November 13, 2006 (the “Reconstitution
Date”),
as if
such representations and warranties were made on such date and (ii) the
representations and warranties set forth in Section 7.02 of the Servicing
Agreement are true and correct in all material respects as of the Closing Date
(as defined in the Servicing Agreement). In addition, Countrywide Servicing
shall make the representations and warranties listed on Exhibit Four hereto
as
of the Reconstitution Date.
3
CHL
and
Countrywide Servicing hereby acknowledge and agree that the remedies available
to the Trust Fund (including the Trustee acting on the Trust Fund’s behalf) in
connection with any breach of the representations and warranties made by CHL
or
Countrywide Servicing set forth above that materially and adversely affects
the
value of that Mortgage Loan and the interests of the Purchaser in such Mortgage
Loan shall be as set forth in Subsection 7.03 of the Servicing Agreement as
if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein). Such enforcement of a right or remedy
by GCA on behalf of the Trust Fund shall have the same force and effect as
if
the right or remedy had been enforced or exercised by GCFP directly and the
Trustee on behalf of the Trust Fund hereby consents to such enforcement by
GCA.
Assignment
CHL
and
Countrywide Servicing hereby acknowledge that the rights of GCFP under the
Servicing Agreement as amended by this Agreement will be assigned to GCA under
a
Mortgage Loan Purchase Agreement and by GCA to the Trust Fund under the Pooling
Agreement and agree that the Mortgage Loan Purchase Agreement and the Pooling
Agreement will each be a valid assignment and assumption agreement or other
assignment document and will constitute a valid assignment and assumption of
the
rights and obligations of GCFP as “Purchaser” under the Servicing Agreement to
GCA and the Trustee, on behalf of the Trust Fund, as applicable. In addition,
the Trust Fund has, or intends to, make a REMIC election. CHL and Countrywide
Servicing hereby consent to such assignment and assumption and acknowledge
the
Trust Fund’s REMIC election.
Notices
1. All
notices, consents, certificates, reports or certifications (collectively,
“Written
Information”)
required to be delivered to the Purchaser under the Servicing Agreement and
under this Agreement shall be delivered to the Trustee at the following
address:
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention: HarborView
2006-11—GC06H11
Telephone:
(000)
000-0000
Facsimile:
(000) 000-0000
4
2. All
Written Information required to be delivered to the Depositor under the
Servicing Agreement and under this Agreement shall be delivered to the Depositor
at the following address:
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Legal Department (HarborView 2006-11)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
3. All
amounts required to be remitted or distributed by the Servicer to the Trustee
on
behalf of the Trust Fund as the “Purchaser” under the Servicing Agreement and
under this Agreement shall be made to the following wire account:
Xxxxx
Fargo Bank, N.A.
ABA
#:
000-000-000
Account
Name: SAS CLEARING
Account
Number: 0000000000
For
further credit to: Harborview 2006-11, Account #00000000
4. All
demands, notices and communications required to be delivered to CHL and
Countrywide Servicing under the Servicing Agreement and this Agreement shall
be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by registered mail, postage prepaid, as follows:
In
the
case of CHL,
Countrywide
Home Loans, Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxxx Xxxxx, Executive Vice President
In
the
case of Countrywide Servicing,
Countrywide
Home Loans Servicing LP
000
Xxxxxxxxxxx Xxx
Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention:
Xxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxx Xxxxxx and Xxxx Xx
Acknowledgment
by the Trustee and Covenant of GCA
The
Trustee on behalf of the Trust Fund hereby acknowledges and consents to the
provision of Written Information by Countrywide Servicing to GCA pursuant to
this Agreement; provided, however, in the event GCA requests Written Information
that contains “non-public personal information” as defined in the Xxxxx-Xxxxx
Bliley Act, as amended, GCA hereby agrees that prior to receiving such Written
Information, it shall execute a non-disclosure agreement mutually agreeable
to
GCA, the Trustee on behalf of the Trust Fund and Countrywide
Servicing.
5
Governing
Law
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Counterparts
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all of which counterparts shall
together constitute but one and the same instrument.
Reconstitution
CHL,
Countrywide Servicing and GCFP agree that this Agreement is a Reconstitution
Agreement executed in connection with a Pass-Through Transfer and that November
13, 2006 is the Reconstitution Date.
Limited
Role of the Trustee
The
Trustee shall have no obligations or duties under this Agreement except as
expressly set forth herein. No implied duties on the part of the Trustee shall
be read into this Agreement. Nothing herein shall be construed to be an
assumption by the Trustee of any duties or obligations of any party to this
Agreement or the Servicing Agreement, the duties of the Trustee being solely
those set forth in the Pooling Agreement. The Trustee is entering into this
Agreement solely in its capacity as Trustee under the Pooling Agreement and
not
individually, and there shall be no recourse against the Trustee in its
individual capacity hereunder or for the payment of any obligations of the
Trust
or the Trust Fund.
6
Executed
as of the day and year first above written.
| GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. | ||
| By: | /s/ Xxxxxx Xxxxxxxxxxx | |
|
Name:
Xxxxxx Xxxxxxxxxxx
Title:
Senior Vice President
|
||
| GREENWICH CAPITAL ACCEPTANCE, INC. | ||
| By: | /s/ Xxxxxx Xxxxxxxxxxx | |
|
Name:
Xxxxxx Xxxxxxxxxxx
Title:
Senior Vice President
|
||
| COUNTRYWIDE HOME LOANS, INC. | ||
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name:
Xxxxxx Xxxxxx
Title:
First Vice President
|
||
|
COUNTRYWIDE
HOME LOANS
SERVICING
LP
|
||
| By: Countrywide GP, Inc., its General Partner | ||
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name:
Xxxxxx Xxxxxx
Title:
Vice President
|
||
Acknowledged
By:
XXXXX
FARGO BANK, N.A.
not
in
its individual capacity, but solely as Trustee for HarborView Mortgage Trust
2006-11
Trust
Fund under the Pooling Agreement
| By: /s/ Xxxxxx Xxxxxxx | |||
|
Name:
Xxxxxx Xxxxxxx
Title:
Assistant Vice President
|
EXHIBIT
ONE
Modifications
to the Servicing Agreement
| 1. |
The
definition of “Business Day” in Section 1 is hereby amended in its
entirety to read as follows:
|
Business
Day:
Any day
other than a Saturday or Sunday, or a day on which banks and savings and loan
institutions in California, New York, Maryland, Minnesota or Texas are
authorized or obligated by law or executive order to be closed.
| 2. |
The
definition of “Eligible Account” in Section 1 is hereby amended in its
entirety to be as defined in the Pooling
Agreement.
|
| 3. |
The
definition of “Mortgage Interest Rate” in Section 1 is hereby amended by
adding the phrase “net of any Relief Act Reduction” to the end of such
definition.
|
| 4. |
The
definition of “Opinion of Counsel” in Section 1 is hereby amended in its
entirety to read as follows:
|
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of Countrywide, that is
reasonably acceptable to the Trust Fund (or the Trustee on behalf of the Trust
Fund) provided that any Opinion of Counsel relating to (a) qualification of
the
Mortgage Loans in a REMIC or (b) compliance with the REMIC Provisions, must
be
an opinion of counsel reasonably acceptable to the Trust Fund (or the Trustee
on
behalf of the Trust Fund) and the Depositor who (i) is in fact independent
of
Countrywide, (ii) does not have any material direct or indirect financial
interest in Countrywide or in any affiliate of any such entity and (iii) is
not
connected with Countrywide as an officer, employee, director or person
performing similar functions.
| 5. |
A
new definition of “Permitted Investments” is hereby added to Section 1
immediately following the definition of “Periodic Rate Cap” to read as
follows:
|
Permitted
Investments:
Any one
or more of the following obligations or securities acquired at a purchase price
of not greater than par, regardless of whether issued or managed by the
Depositor, the Trust Fund (or the Trustee on behalf of the Trust Fund) or any
of
their respective Affiliates or for which an Affiliate of the Trust Fund (or
the
Trustee on behalf of the Trust Fund) serves as an advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
such
depository institution or trust company or its ultimate parent has a short-term
uninsured debt rating in one of the two highest available rating categories
of
the Rating Agency and (B) any other demand or time deposit or deposit which
is
fully insured by the FDIC;
(iii) repurchase
obligations with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting as
principal) rated A or higher by the Rating Agency;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America, the District of
Columbia or any State thereof and that are rated by the Rating Agency in its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations) that is rated by the Rating Agency in its highest
short-term unsecured debt rating available at the time of such
investment;
(vi) units
of
money market funds (which may be 12b-1 funds, as contemplated by the Commission
under the Investment Company Act of 1940) registered under the Investment
Company Act of 1940 including funds managed or advised by the Trust Fund (or
the
Trustee on behalf of the Trust Fund) or an affiliate thereof having the highest
applicable rating from the Rating Agency; and
(vii) if
previously confirmed in writing to the Trust Fund (or the Trustee on behalf
of
the Trust Fund), any other demand, money market or time deposit, or any other
obligation, security or investment, as may be acceptable to the Rating Agency
in
writing as a permitted investment of funds backing securities having ratings
equivalent to its highest initial ratings of the Senior
Certificates;
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive (a)
only interest with respect to the obligations underlying such instrument or
(b)
both principal and interest payments derived from obligations underlying such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations.
| 6. |
A
new definition of “Prepayment Charge” is hereby added to Section 1
immediately following the definition of “Person” to read as
follows:
|
Prepayment
Charge:
With
respect to each Mortgage Loan, the fee, if any, payable upon the prepayment
of
principal, in whole or in part, of such Mortgage Loan, as set forth in the
related Mortgage Note.
| 7. |
The
definition of “Purchaser” in Section 1 is hereby amended and replaced with
the “Trust Fund (or the Trustee on behalf of the Trust Fund”) as defined
in this Agreement and placed in the correct alphabetical
order.
|
| 8. |
A
new definition of “Rating Agency” is hereby added to Section 1 immediately
following the definition of “Qualified Substitute Mortgage Loan” to read
as follows:
|
Rating
Agency:
Any
nationally recognized statistical rating agency rating the securities issued
in
the applicable Pass-Through Transfer.
| 9. |
A
new definition of “Relief Act Reduction” is hereby added to Section 1
immediately following the definition of “Refinanced Mortgage Loan” to read
as follows:
|
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of the interest collectible thereon as a result of the application of
the
Servicemembers Civil Relief Act, as amended, or any similar state law, any
amount by which interest collectible on such Mortgage Loan for the Due Date
in
the related Due Period is less than the interest accrued thereon for the
applicable one-month period at the Mortgage Interest Rate without giving effect
to such reduction.
| 10. |
A
new definition of “REMIC Provisions” is hereby added to Section 1
immediately following the definition of “REMIC” to read as
follows:
|
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits which appear at Section 860A through 860G of Subchapter
M of
Chapter 1 of the Code, and related provisions, and regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to
time.
| 11. |
The
definition of “Remittance Date” is amended and restated to read as
follows:
|
Remittance
Date:
The
18th
calendar
day of any month or, if such 18th
day is
not a Business Day, the Business Day immediately preceding such 18th
day.
| 12. |
A
new definition of “Sarbanes Certifying Party” is added to Section 1
immediately before the definition of “Seller” to read as
follows:
|
Sarbanes
Certifying Party:
A
Person who provides a certification required under the Xxxxxxxx-Xxxxx Act of
2002 on behalf of the Trust Fund.
| 13. |
Subsection
7.02 (Representations and Warranties for Individual Mortgage Loans)
is
hereby amended by deleting the “and” at the end of clause (lii), by
deleting the period at the end of clause (liii) and adding a “; and” and
by adding the following clause
(liv):
|
(liv) Each
Prepayment Charge is permissible and enforceable in accordance with its terms
under applicable state and federal law, except as the enforceability thereof
is
limited due to acceleration in connection with a foreclosure or other
involuntary payment. Notwithstanding the above, the Seller may waive a
Prepayment Charge without such waiver operating as a breach of this
representation and warranty 7.02(liv) if (i) the Mortgage Loan is in default
and
such waiver would maximize recovery of total proceeds taking into account the
value of such Prepayment Charge and the related Mortgage Loan, and the waiver
of
such Prepayment Charge is standard and customary in servicing similar Mortgage
Loans (including the waiver of a Prepayment Charge in connection with a
refinancing of the Mortgage Loan related to a default or a reasonably
foreseeable default), (ii) the collection of the Prepayment Charge would be
in
violation of applicable laws, (iii) the collection of such Prepayment Charge
would be considered “predatory” pursuant to written guidance published or issued
by any applicable federal, state or local regulatory authority acting in its
official capacity and having jurisdiction over such matters and (iv)
notwithstanding any state or federal law to the contrary, any instance when
a
Mortgage Loan is in foreclosure.
| 14. |
Subsection
7.03 (Remedies for Breach of Representations and Warranties) is hereby
amended as follows:
|
| (i) |
by
adding the words “(payable from its own funds and not from the Custodial
Account)” to the first sentence of the fifth paragraph after the word
“indemnify;”
|
| (ii) |
by
replacing the words “the Purchaser and hold it” at the beginning of the
second line of the fifth paragraph with “the Trust Fund (or the Trustee on
behalf of the Trust Fund) and hold
it;”
|
| (iii) |
by
replacing each of the references to “the Purchaser” in the last sentence
of the fifth paragraph with “the Trust Fund (or the Trustee on behalf of
the Trust Fund);”
|
| (iv) |
by
replacing each of the references to “the Purchaser” in the sixth paragraph
with “the Trust Fund (or the Trustee on behalf of the Trust Fund);”
and
|
| (v) |
replacing
the first sentence of the second paragraph of Section 7.03 as
follows:
|
The
Seller shall have ninety (90) days from the earlier of discovery of a breach
or
the receipt by Seller of notice of such a breach within which to correct or
cure
such breach. The Seller hereby covenants and agrees that if any such breach
cannot be corrected or cured within such ninety (90) day period, the Seller
shall, at the Purchaser’s option and not later than ninety (90) days after its
discovery or its receipt of notice of such breach, repurchase such Mortgage
Loan
at the Repurchase Price or, in the event the breach is of Section 7.02 (liv),
Countrywide shall indemnify the Purchaser for any loss incurred by the Purchaser
as a result of such breach with respect to such Mortgage Loan in lieu of
repurchase pursuant to the second to last paragraph of Section 7.03 of this
Agreement.
| (vi) |
adding
the following new paragraphs at the end of Section 7.03:
|
In
the
event of a breach of Section 7.02 (liv) of this Agreement that materially and
adversely affects the interests of the Purchaser in any Prepayment Charge,
Countrywide shall pay the amount of the scheduled Prepayment Charge to the
Purchaser upon the payoff of any related Mortgage Loan.
The
enforcement of a right or remedy pursuant to this Section 7.03 shall be by
GCA
on behalf of the Trust Fund, which the Trustee on behalf of the Trust Fund
hereby consents to, and shall have the same force and effect as if the right
or
remedy had been enforced or exercised by GCFP directly.
| 15. |
Subsection
7.04 (Reserved) is hereby titled “Credit Reporting” and amended as
follows: The Servicer will fully furnish in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e., favorable and unfavorable) on its borrower
credit files to Equifax, Experian and Trans Union Credit Information
Company, on a monthly basis.
|
| 16. |
Subsection
13.01 (Additional Indemnification by the Seller; Third Party Claims)
is
hereby amended:
|
| (i) |
by
replacing each of the two references to “the Purchaser” in the first
sentence with “the Trust Fund (or the Trustee on behalf of the Trust Fund)
and the Depositor;”
|
| (ii) |
by
replacing the reference to “it” in the first sentence with
“each;”
|
| (iii) |
by
replacing the first and third reference to “the Purchaser” in the second
sentence with “the Trust Fund;”
|
| (iv) |
by
replacing the second reference to “the Purchaser” in the second sentence
with “the Trust Fund;”
|
| (v) |
by
replacing each reference to “the Purchaser” in the fourth sentence with
“the Trust Fund (or the Trustee on behalf of the Trust Fund) and the
Depositor;” and
|
| (vi) |
by
replacing the reference to “the Purchaser” in the last sentence with “the
Trust Fund.”
|
| 17. |
Subsection
13.04 (Seller Not to Resign) is hereby amended as
follows:
|
| (i) |
by
replacing the reference to “the Purchaser” in the second line with “the
Trustee on behalf of the Trust
Fund;”
|
| (ii) |
by
replacing the first reference to “the Purchaser” in the second sentence
with “the Trustee on behalf of the Trust Fund;”
and
|
| (iii) |
by
replacing the second reference to “the Purchaser” in the second sentence
with “the Trustee on behalf of the Trust Fund.”
|
| 18. |
Subsection
13.05 (No Transfer of Servicing) is hereby amended by adding the
words
“(or its designee)” after “Purchaser” in the second sentence of the
paragraph.
|
| 19. |
Subsection
14.01 (Events of Default) is hereby amended as
follows:
|
| (i) |
by
replacing each reference to “the Purchaser” with “the Purchaser (or its
designee);”
|
| (ii) |
by
amending and restating clause (i) of Section 14.01 to read as
follows:
|
(i)
any
failure of the Seller to remit to the Purchaser (or its designee) any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of one (1) Business Day after the date upon which such payment
was
required to be made; or
| (iii) |
by
adding the words “subject to clause (ix) of this Subsection 14.01,” at the
beginning of clause (ii); and
|
| (iv) |
by
replacing in clause (ix) the words “Sections 11.25 and 11.26 of the
Servicing Addendum, which failure continues unremedied for a period
of
thirty (30) days” with the words “any failure by the Seller to duly
perform, within the required time period, its obligations to provide
any
certifications, assessments, attestations or statements of compliance
under Sections 2(d) and (e) of Amendment Reg AB, which failure continues
unremedied for a period of ten (10)
days.”
|
| 20. |
Subsection
14.02 (Waiver of Defaults) is hereby amended by replacing the reference
to
“The Purchaser” with “The Trust Fund (or the Trustee on behalf of the
Trust Fund).”
|
| 21. |
Section
15.01 (Termination) is hereby deleted in its entirety and replaced
by the
following:
|
Section
15.01 Termination
The
respective obligations and responsibilities of the Seller shall terminate upon
the: (i) the later of the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or the disposition of all REO
Property and the remittance of all funds due hereunder; or (ii) in accordance
with Section 13.05.
| 22. |
Section
16 (Successor to the Seller) is hereby amended as
follows:
|
| (i) |
by
replacing the words “Prior to” with “Upon” at the beginning of the first
sentence of the first paragraph;
|
| (ii) |
by
replacing the reference to “Section 15.01(ii)” with “Subsection 14.01” in
the second line of the first
paragraph;
|
| (iii) |
by
adding the words “, in accordance with the Pooling Agreement,” after the
word “shall” in the second line of the first
paragraph;
|
| (iv) |
by
adding the following new sentence immediately after the first sentence
of
the first paragraph to read as
follows:
|
Any
successor to the Seller, as servicer, shall be a FHLMC- or FNMA-approved
servicer and shall be subject to the approval of each Rating Agency, as
evidenced by a letter from each such Rating Agency delivered to the Trust Fund
(or the Trustee on behalf of the Trust Fund) that the transfer of servicing
will
not result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates.
| (v) |
by
adding the following proviso at the end of the second sentence of
the
first paragraph immediately before the period to read as
follows:
|
;
provided,
however,
that no
such compensation shall be in excess of that permitted the Seller under this
Agreement.
| (vi) |
by
replacing the reference to “the Purchaser” in the second line of the
second paragraph with “the Trust Fund (or the Trustee on behalf of the
Trust Fund);” and
|
| (vii) |
by
adding the following new paragraph as the fifth paragraph to read
as
follows:
|
Except
as
otherwise provided in this Section 16, all reasonable costs and expenses
incurred in connection with any transfer of servicing hereunder (as a result
of
termination of the Seller), including, without limitation, the costs and
expenses of the Trust Fund (or the Trustee on behalf of the Trust Fund) or
any
other Person in appointing a successor servicer, or of the Trust Fund (or the
Trustee on behalf of the Trust Fund) in assuming the responsibilities of the
Seller hereunder, or of transferring the Servicing Files and the other necessary
data, including the completion, correction or manipulation of such servicing
data as may be required to correct any errors or insufficiencies in the
servicing data, to the successor servicer shall be paid by the terminated or
resigning Seller from its own funds without reimbursement. Notwithstanding
any
of the foregoing, all reasonable costs and expenses incurred in connection
with
any transfer of servicing pursuant to Subsection 15.02 shall be paid by the
Trust Fund.
| 23. |
Section
24 (Successors and Assigns; Assignment of Purchase Agreement) is
hereby
amended by replacing the words “the consent of the Purchaser” at the end
of the second sentence with “the prior written consent of the Depositor,
the Trust Fund (or the Trustee on behalf of the Trust Fund) and each
Rating Agency.”
|
| 24. |
A
new Section 35 (Amendment) is hereby added to the Servicing Agreement
to
read as follows:
|
SECTION
35. Amendment.
This
Agreement may be amended only by written agreement signed by the Seller, the
Depositor and the Trust Fund (or the Trustee on behalf of the Trust Fund).
The
party requesting such amendment shall, at its own expense, provide the Depositor
and the Trust Fund (or the Trustee on behalf of the Trust Fund) with an Opinion
of Counsel that (i) such amendment is permitted under the terms of this
Agreement, (ii) the Seller has complied with all applicable requirements of
this
Agreement, and (iii) such Amendment will not materially adversely affect the
interest of the Certificateholders in the Mortgage Loans.
| 25. |
A
new Section 36 (Intended Third Party Beneficiaries) is hereby added
to the
Servicing Agreement to read as
follows:
|
SECTION
36. Intended
Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the parties to this
Agreement agree that it is appropriate, in furtherance of the intent of such
parties as set forth herein, that the Trust Fund (or the Trustee on behalf
of
the Trust Fund) and the Depositor each receive the benefit of the provisions
of
this Agreement as an intended third party beneficiary of this Agreement to
the
extent of such provisions. The Seller shall have the same obligations to the
Trust Fund (or the Trustee on behalf of the Trust Fund) and the Depositor as
if
the Trust Fund (or the Trustee on behalf of the Trust Fund) and the Depositor
were each a party to this Agreement, and the Trust Fund (or the Trustee on
behalf of the Trust Fund) and the Depositor each shall have the same rights
and
remedies to enforce the provisions of this Agreement as if it were a party
to
this Agreement. Notwithstanding the foregoing, all rights and obligations of
the
Trust Fund (or the Trustee on behalf of the Trust Fund) and the Depositor
hereunder (other than the right to indemnification and the indemnification
obligations, as applicable) shall terminate upon termination of the Trust Fund
pursuant to the Pooling Agreement.
| 26. |
Section
11.01 of the Servicing Addendum (Seller to Act as Servicer) is hereby
amended as follows:
|
| (i) |
by
adding the following proviso at the end of the first paragraph to
read as
follows:
|
provided,
however,
that
the Seller shall not knowingly or intentionally take any action, or fail to
take
(or fail to cause to be taken) any action reasonably within its control and
the
scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, would cause any REMIC
created under the Pooling Agreement to fail to qualify as a REMIC or result
in
the imposition of a tax upon the Trust (including but not limited to the tax
on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax
on contributions to a REMIC set forth in Section 860G(d) of the Code) unless
the
Seller has received an Opinion of Counsel (but not at the expense of the Seller)
to the effect that the contemplated action will not cause any REMIC created
under the Pooling Agreement to fail to qualify as a REMIC or result in the
imposition of a tax upon any such REMIC created thereunder.
| (ii) |
by
adding the following additional proviso at the end of the first sentence
of the second paragraph to read as
follows:
|
;
provided,
further,
no such
modification shall be permitted unless the Seller shall have provided to the
Trust Fund (or the Trustee on behalf of the Trust Fund) an Opinion of Counsel
in
writing to the effect that such modification, waiver or amendment would not
cause an Adverse REMIC Event (as defined in the Pooling Agreement). The costs
of
obtaining such Opinion of Counsel shall be a reimbursable expense to the Seller
to be withdrawn from the Custodial Account pursuant to Section 11.05. Promptly
after the execution of any modification of any Mortgage Loan, the Seller shall
deliver to the Trust Fund (or the Trustee on behalf of the Trust Fund) the
originals of any documents evidencing such modification.
| 27. |
Section
11.04 of the Servicing Addendum (Establishment of Custodial Accounts;
Deposits in Custodial Accounts) is hereby amended as
follows:
|
|
(i)
|
by
adding the words “, entitled ‘in trust for the Trustee on behalf of the
HarborView 2006-11 Trust Fund’” at the end of the first sentence of the
first paragraph.
|
|
(ii)
|
by
deleting the “and” at the end of clause (x), by deleting the period at the
end of clause (xi) and replacing it with “; and” and by adding a new
clause (xii) after the end of clause (xi) to read as follows:
|
(xii)
all
Prepayment Charges received in respect of those Mortgage Loans listed on Exhibit
Six hereto.
|
(iii)
|
by
adding a new paragraph at the end of the section to read as
follows:
|
|
“Funds
in the Custodial Account shall, if invested, be invested in Permitted
Investments; provided,
however,
that the Seller shall be under no obligation or duty to invest (or
otherwise pay interest on) amounts held in the Custodial Account.
All
Permitted Investments shall mature or be subject to redemption or
withdrawal no later than one Business Day prior to the next succeeding
Remittance Date (except that if such Permitted Investment is an obligation
of the Seller, then such Permitted Investment shall mature not later
than
such applicable Remittance Date). Any and all investment earnings
from any
such Permitted Investment shall be for the benefit of the Seller
and shall
be subject to its withdrawal or order from time to time, and shall
not be
part of the Trust Fund. The risk of loss of moneys required to be
remitted
to the Trust Fund (or the Trustee on behalf of the Trust Fund) resulting
from such investments shall be borne by and be the risk of the Seller.
The
Seller shall deposit the amount of any such loss in the Custodial
Account
immediately as realized, but in no event later than the related Remittance
Date.”
|
| 28. |
Section
11.05 of the Servicing Addendum (Permitted Withdrawals From the Custodial
Account) is hereby amended as
follows:
|
(i) by
adding
a new subclause (ix) to read as follows:
(ix)
to
reimburse itself for unreimbursed Servicing Advances to the extent that such
amounts are nonrecoverable by the Seller pursuant to subclause
(iii) above;
(ii) by
adding
the following paragraph at the end such Section:
The
Seller hereby acknowledges that upon the termination of the Trust Fund on or
following the Call Option Date in connection with the purchase of the Mortgage
Loans by the Seller pursuant to Section 10.01(a) of the Pooling Agreement,
the
Seller will not be entitled to reimbursement of any outstanding Monthly Advances
or Servicing Advances from the Distribution Account on such date of termination,
and shall be entitled to such reimbursement from the Custodial Account under
the
terms of the Servicing Agreement.
| 29. |
Section
11.06 of the Servicing Addendum (Establishment of Escrow Accounts;
Deposits in Escrow Accounts) is hereby amended as
follows:
|
|
(i)
|
by
adding the words “, entitled ‘in trust for the Trustee on behalf of the
HarborView 2006-11 Trust Fund’” at the end of the first sentence of the
first paragraph.
|
|
(ii)
|
by
adding the following sentence after the first sentence of the second
paragraph as follows:
|
|
The
Seller will be obligated to make Servicing Advances to the Escrow
Account
in respect of its obligations under this Section 11.06, reimbursable
from
the Escrow Accounts or Custodial Account to the extent not collected
from
the related Mortgagor, anything to the contrary notwithstanding,
when and
as necessary to pursuant to Section 11.08 hereof; provided,
however,
that Servicing Advances shall not be required to be made by the Seller
if
such Servicing Advance would, if made, be, in the Seller’s reasonable
judgment, nonrecoverable.
|
| 30. |
The
fourth paragraph of Section 11.13 of the Servicing Addendum (Title,
Management and Disposition of REO Property) is hereby deleted in
its
entirety and replaced by the
following:
|
The
Seller shall use its best efforts to dispose of each REO Property as soon as
possible and shall sell each REO Property in any event within three (3) years
after title has been taken to such REO Property, unless (a) a REMIC election
has
not been made with respect to the arrangement under which the Mortgage Loans
and
the REO Property are held, or (b) the Seller determines, and gives an
appropriate notice to the Trust Fund (or the Trustee on behalf of the Trust
Fund) to such effect, that a longer period is necessary for the orderly
liquidation of such REO Property and the Seller, at its expense, obtains an
extension of time from the Internal Revenue Service to sell the REO Property
or
provides an Opinion of Counsel that the REMIC status is not affected if the
Seller has not disposed of the REO Property within such three (3) year period.
If a period longer than three (3) years is permitted under the foregoing
sentence and is necessary to sell any REO Property, the Seller shall report
monthly to the Trust Fund (or the Trustee on behalf of the Trust Fund) as to
the
progress being made in selling such REO Property.
| 31. |
Section
11.17 of the Servicing Addendum (Distributions) is hereby amended
as
follows:
|
|
(i)
|
by
(a) deleting the words “the second Business Day following” in the first
sentence of the second paragraph and (b) replacing the words “day
following such second Business Day” in the second sentence of the second
paragraph with “Business Day on which such remittance was
due.”
|
|
(ii)
|
by
adding the following paragraph after the second paragraph as follows:
|
|
Each
remittance pursuant to this Section 11.17 shall be made by wire transfer
of immediately available funds to, or by other means of transmission
or
transfer that causes funds to be immediately available in, the
Distribution Account which shall have been designated by the Trust
Fund
(or the Trustee on behalf of the Trust
Fund).
|
| 32. |
Section
11.18 of the Servicing Addendum (Statements to the Purchaser) is
hereby
amended by deleting the first sentence in its entirety and replacing
it
with the following:
|
Not
later
than the tenth calendar day of each month (or if such calendar day is not a
Business Day, the immediately succeeding Business Day), the Seller shall furnish
to the Trust Fund (or the Trustee on behalf of the Trust Fund) the information
shown in Exhibit
11
in a
format mutually acceptable to the Seller and the Trust Fund (or the Trustee
on
behalf of the Trust Fund), including but not limited to (i) a monthly remittance
advice in written or electronic format (or in such other format mutually agreed
to between the Seller and the Trust Fund (or the Trustee on behalf of the Trust
Fund)) relating to the period ending on the last day of the preceding calendar
month in such form mutually agreed to in writing between the Seller and the
Trust Fund (or the Trustee on behalf of the Trust Fund) and (ii) all such
information required pursuant to clause (i) above on a magnetic tape or other
similar media reasonably acceptable to the Trust Fund (or the Trustee on behalf
of the Trust Fund). In addition, no later than the close of business New York
time on the fifth Business Day prior to such Distribution Date, the Seller
shall
deliver or cause to be delivered to the Trust Fund (or the Trustee on behalf
of
the Trust Fund) in addition to the information provided in Exhibit
11,
such
other loan-level information reasonably available to it with respect to the
Mortgage Loans as the Trust Fund (or the Trustee on behalf of the Trust Fund)
may reasonably require to perform the calculations necessary to make the
distributions contemplated by Section 5.01 of the Pooling
Agreement.
| 33. |
Section
11.24 of the Servicing Addendum (Servicing Compensation) is hereby
amended
by deleting the words “(except as otherwise set forth in the related
Purchase Price and Terms Letter with respect to any Mortgage Loan
Package).”
|
| 34. |
Section
11.25 of the Servicing Addendum (Statement as to Compliance) is hereby
deleted in its entirety.
|
| 35. |
Section
11.26 of the Servicing Addendum (Independent Public Accountants’ Servicing
Report) is hereby deleted in its
entirety.
|
| 36. |
A
new Section 11.29 (Prepayment Charges) is hereby added to the Servicing
Addendum to read as follows:
|
Section
11.29 Prepayment
Charges.
The
Servicer may not waive any Prepayment Charge required by the terms of the
related Mortgage Note. Notwithstanding the above, Countrywide may waive a
Prepayment Charge without paying the Purchaser the amount of the Prepayment
Charge if (i) the Mortgage Loan is a defaulted Mortgage Loan, (ii) , (ii) the
collection of such Prepayment Charge would be considered “predatory” pursuant to
written guidance published or issued by any applicable federal, state or local
regulatory authority acting in its official capacity and having jurisdiction
over such matters and (iii) notwithstanding any state or federal law to the
contrary, any instance when a Mortgage Loan is in foreclosure. If the Servicer
has waived any Prepayment Charge or does not collect a Prepayment Charge
required by the terms of the related Mortgage Note, in any case due to any
action or omission of the Servicer, other than as provided above, the Servicer
shall deposit the amount of such Prepayment Charge which was not collected
for
deposit into the Collection Account. Upon discovery by any party hereto of
a
breach of the foregoing, the party discovering the breach shall give prompt
written notice to the other party.
| 37. |
A
new definition of “Trustee” is hereby added to Section 1 of the Amendment
Reg AB immediately following the definition of “Third-Party Originator” to
read as follows:
|
Trustee:
Xxxxx
Fargo Bank, N.A., or any successor thereto as trustee on behalf of the Trust
Fund.
| 38. |
Section
2(c) of the Amendment Reg AB is hereby amended by deleting subparts
(iv)
and (vi) in their entirety and replacing them with the
following:
|
|
(iv)
|
For
the purpose of satisfying its reporting obligation under the Exchange
Act
with respect to any class of asset-backed securities, the Company
shall
(and shall cause each Subservicer and, if applicable, any Third-Party
Originator to) (a) provide prompt notice to the Purchaser, (or the
Trustee
on behalf of the Purchaser) and any Depositor in writing of (1) any
merger, consolidation or sale of substantially all of the assets
of the
Company, (2) the Company’s entry into an agreement with a Subservicer to
perform or assist in the performance of any of the Company’s obligations
under the Agreement or any Reconstitution Agreement, (3) any Event
of
Default under the terms of the Agreement or the Reconstitution Agreement
to the extent not known by such Purchaser (or the Trustee on behalf
of the
Purchaser) or Depositor, and (4) any material litigation or governmental
proceedings involving the Company, any Subservicer or any Third Party
Originator.
|
|
(vi)
|
Not
later than ten days prior to the deadline for the filing of any
distribution report on Form 10-D in respect of any Securitization
Transaction that includes any of the Mortgage Loans serviced by the
Company or any Subservicer, the Company or such Subservicer, as
applicable, shall, to the extent the Company or such Subservicer
has
knowledge, provide to the party responsible for filing such report
(including, if applicable, any master servicer) notice
of the occurrence of any of the following events along with all
information, data, and materials related thereto as may be required
to be
included in the related distribution report on Form 10-D (as specified
in
the provisions of Regulation AB referenced below): (A) any material
modifications, extensions or waivers of Mortgage Loan terms, fees,
penalties or payments during the distribution period or that have
cumulatively become material over time (Item 1121(a)(11) of Regulation
AB;
(B) material breaches of Mortgage Loan representations or warranties
or
transaction covenants under this Agreement (Item 1121(a)(12) of Regulation
AB); and
(C)
information regarding any Mortgage Loan changes (such as, additions,
substitutions or repurchases), and any material changes in origination,
underwriting or other criteria for acquisition or selection of pool
assets
(Item 1121(a)(14) of Regulation
AB).
|
|
35.
|
Section
2(c) of Amendment Reg AB is hereby amended by adding the following
subparts:
|
|
(vii)
|
If
reasonably requested by the Purchaser or the Trustee on behalf of
the
Purchaser, the Company shall provide to the Purchaser or the Trustee
on
behalf of the Purchaser, evidence of the authorization of the person
signing any certificate or statement provided pursuant to Section
2(d) and
2(e) of Amendment Reg AB.
|
|
(viii)
|
The
Company shall provide to the Purchaser (or the Trustee on behalf
of the
Purchaser) and any Depositor a description of any affiliation or
relationship required to be disclosed under Item 1119 between the
Company
and any of the parties listed in Items 1119
(a)(1)-(6) of
Regulation AB that develops following the closing date of a Securitization
Transaction (other than an affiliation or relationship that the Purchaser,
the Trustee, the Depositor or the issuing entity is required to disclose
under Item 1119 of Regulation AB) no later than 15 calendar days
prior to
the date the Depositor is required to file its Form 10-K disclosing
such
affiliation or relationship. For purposes of the foregoing, the Company
(1) shall be entitled to assume that the parties to the Securitization
Transaction with whom affiliations or relations must be disclosed
are the
same as on the closing date if it provides a written request (which
may be
by e-mail) to the Depositor or the Trustee on behalf of the Purchaser,
as
applicable, requesting such confirmation and either obtains such
confirmation or receives no response within three (3) Business Days,
(2)
shall not be obligated to disclose any affiliations or relationships
that
may develop after the closing date for the Securitization Transaction
with
any parties not identified to the Company pursuant to clause (D)
of
paragraph (i) of this Section 2(c), and (3) shall be entitled to
rely upon
any written identification of parties provided by the Depositor,
the
Purchaser or any master servicer.
|
|
(ix)
|
In
addition to such information as the Company, as servicer, is obligated
to
provide pursuant to other provisions of this Agreement, if requested
by
the Purchaser or any Depositor, the Company shall provide such information
which is reasonably available regarding the servicing of the Mortgage
Loans as is reasonably required to facilitate preparation of distribution
reports in accordance with Item 1121 of Regulation
AB.
|
|
36.
|
Sections
2(d) and 2(e) of the Amendment Reg AB are hereby amended by deleting
such
sections in their entirety and replacing them with the
following:
|
|
(d)
|
Servicer
Compliance Statement.
|
On
or
before March 5 of each calendar year, commencing in 2007, the Company shall
deliver to the Purchaser (or the Trustee on behalf of the Purchaser) and any
Depositor a statement of compliance addressed to the Purchaser (or the Trustee
on behalf of the Purchaser) and any Depositor and signed by an authorized
officer of the Company, to the effect that (i) a review of the Company’s
servicing activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under the servicing
provisions of this Agreement and any applicable Reconstitution Agreement during
such period has been made under such officer’s supervision, and (ii) to the best
of such officers’ knowledge, based on such review, the Company has fulfilled all
of its servicing obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such calendar
year
(or applicable portion thereof) or, if there has been a failure to fulfill
any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status
thereof.
|
(e)
|
Report
on Assessment of Compliance and Attestation.
|
(i) On
or
before March 5 of each calendar year, commencing in 2007, the Company
shall:
(A) deliver
to the Purchaser (or the Trustee on behalf of the Purchaser) and any Depositor
a
report regarding the Company’s assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year, as required under
Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such
report shall be addressed to the Purchaser (or the Trustee on behalf of the
Purchaser) and such Depositor and signed by an authorized officer of the
Company, and shall address each of the applicable Servicing Criteria specified
on Exhibit B hereto delivered to the Purchaser concurrently with the execution
of this Agreement (wherein “Investor” shall be deemed to mean the Trustee on
behalf of the trust);
(B) deliver
to the Purchaser (or the Trustee on behalf of the Purchaser) and any Depositor
a
report of a registered public accounting firm that attests to, and reports
on,
the assessment of compliance made by the Company and delivered pursuant to
the
preceding paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act;
(C) if
required by Regulation AB, cause each Subservicer and each Subcontractor
determined by the Company pursuant to Section 2(f)(ii) to be “participating in
the servicing function” within the meaning of Item 1122 of Regulation AB (each,
a “Participating Entity”), to deliver to the Purchaser (or the Trustee on behalf
of the Purchaser) and any Depositor an assessment of compliance and accountants’
attestation as and when provided in paragraphs (A) and (B) of this Section
2(e);
and
(D) deliver,
and cause each Participating Entity to deliver, to the Purchaser (or the Trustee
on behalf of the Purchaser), any Depositor or any other Person that will be
responsible for signing the certification (a “Sarbanes Certification”) required
by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section
302
of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer with
respect to a Securitization Transaction a certification in the form attached
hereto as Exhibit A; provided that such certification delivered by the Company
may not be filed as an exhibit to, or included in, any filing with the
Commission.
The
Company acknowledges that the party identified in clause (i)(D) above may rely
on the certification provided by the Company pursuant to such clause in signing
a Sarbanes Certification and filing such with the Commission.
(ii) Each
assessment of compliance provided by a Subservicer pursuant to Section
2(e)(i)(A) shall address each of the applicable Servicing Criteria specified
on
Exhibit B hereto (wherein
“Investor” shall mean the Trustee) delivered to the Purchaser concurrently with
the execution of this Agreement or, in the case of a Subservicer subsequently
appointed as such, on or prior to the date of such appointment. An assessment
of
compliance provided by a Participating Entity pursuant to Section 2(e)(i)(C)
need not address any elements of the Servicing Criteria other than those
specified by the Company pursuant to Section 2(f).
|
37.
|
Section
2(f)(i) of Amendment Reg AB is hereby amended by adding the words
“, (or
the Trustee on behalf of the Purchaser)” after the word “Purchaser” in the
first sentence.
|
|
38.
|
Section
2(f)(ii) of Amendment Reg AB is hereby amended by adding the words
“, (or
the Trustee on behalf of the Purchaser)” after the word “Purchaser” in
such section and by adding the words “and certification” after the word
“attestation” in the last sentence of the second paragraph of such
section.
|
|
39.
|
Section
2(g) of Amendment Reg AB is hereby amended by adding the following
subpart:
|
|
(iv)
|
If
the indemnification provided for herein is unavailable or insufficient
to
hold harmless the indemnified party, then the indemnifying party
agrees
that it shall contribute to the amount paid or payable by such indemnified
party as a result of any claims, losses, damages or liabilities incurred
by such indemnified party in such proportion as is appropriate to
reflect
the relative fault of such indemnified party on the one hand and
the
indemnifying party on the other.
|
|
40.
|
Section
2(g) of Amendment Reg AB is hereby amended by adding the following
subpart:
|
|
(v)
|
The
indemnification shall survive the termination of this Agreement or
the
termination of any party to this
Agreement.
|
|
41.
|
Section
3 of Amendment Reg AB is hereby amended by deleting the words “seek the
consent of the Purchaser for” and adding the words “notify the Purchaser
in writing of the Company’s” after the word “shall” in such
section.
|
|
42.
|
Exhibit
B of Amendment Reg AB is hereby deleted in its entirety and replaced
with
Exhibit Five attached hereto.
|
EXHIBIT
TWO
List
of Mortgage Loans
[To
be
retained in a separate closing binder entitled “HarborView 2006-11 Mortgage Loan
Schedule”
at the Washington DC offices of XxXxx Xxxxxx LLP]
EXHIBIT
THREE
Definitions
in Section 1 (related to Sections 11-19 and Exhibit 9 of the Servicing
Agreement)
Sections
11-19 and Exhibit 9 of the Servicing Agreement
On
File
with XxXxx Xxxxxx LLP
EXHIBIT
FOUR
Additional
Representations and Warranties
Countrywide
Servicing, as Servicer, represents, warrants and covenants to GCFP, GCA and
the
Trustee as of the Reconstitution Date that:
| (i) |
The
Servicer is a limited partnership, duly organized, validly existing
and in
good standing under the laws of the State of Texas and is duly authorized
and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Servicer in any state in which a
Mortgaged Property related to a Mortgage Loan is located or is otherwise
not required under applicable law to effect such qualification and
no
demand for such qualification has been made upon the Servicer by
any state
having jurisdiction and, in any event, is in compliance with the
doing
business laws of any such State, to the extent necessary to ensure
its
ability to enforce each Mortgage Loan serviced and to service the
Mortgage
Loans in accordance with the terms of this
Agreement;
|
| (ii) |
The
Servicer has the full power and authority to service each Mortgage
Loan
which the Servicer is required to service hereunder, and to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
action on the part of the Servicer the execution, delivery and performance
of this Agreement; and this Agreement, assuming the due authorization,
execution and delivery thereof by the other parties thereto, constitutes
a
legal, valid and binding obligation of the Servicer, enforceable
against
the Servicer in accordance with its terms, except to the extent that
(a)
the enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, receivership and other similar laws relating
to creditors’ rights generally and (b) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject
to the
equitable defenses and to the discretion of the court before which
any
proceeding therefor may be brought;
|
| (iii) |
The
execution and delivery of this Agreement by the Servicer, the servicing
of
the Mortgage Loans by the Servicer hereunder, the consummation by
the
Servicer of any other of the transactions herein contemplated, and
the
fulfillment of or compliance with the terms hereof are in the ordinary
course of business of the Servicer and will not (A) result in a breach
of
any term, condition or provision of the organizational documents
of the
Servicer or (B) conflict with, result in a breach, violation or
acceleration of, or result in a default under, the terms of any other
material agreement or instrument to which the Servicer is a party
or by
which it may be bound, or any statute, order or regulation applicable
to
the Servicer of any court, regulatory body, administrative agency
or
governmental body having jurisdiction over the Servicer; and the
Servicer
is not a party to, bound by, or in breach or violation of any indenture
or
other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially
and adversely affects or, to the Servicer’s knowledge, would in the future
materially and adversely affect, (x) the ability of the Servicer
to
perform its obligations under this Agreement or (y) the business,
operations, financial condition, properties or assets of the Servicer
taken as a whole;
|
| (iv) |
The
Servicer is an approved seller/servicer for Xxxxxx Xxx and an approved
servicer for Xxxxxxx Mac in good standing and is a HUD-approved
non-supervised mortgagee pursuant to Section 203 and Section 211
of the
National Housing Act, and no event has occurred, including but not
limited
to a change in insurance coverage, that would make the Servicer unable
to
comply with HUD, Xxxxxx Xxx or Xxxxxxx Mac eligibility requirements
or
which would require notification to any of HUD, Xxxxxx Mae or Xxxxxxx
Mac;
|
| (v) |
No
action, suit, proceeding, investigation or litigation is pending
or, to
the best knowledge of the Servicer, threatened against the Servicer
that
would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Servicer to
service
the Mortgage Loans or to perform any of its other obligations hereunder
in
accordance with the terms hereof;
and
|
| (vi) |
No
consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance
by
the Servicer of, or compliance by the Servicer with, this Agreement
or the
consummation by the Servicer of the transactions contemplated by
this
Agreement, except for such consents, approvals, authorizations or
orders,
if any, that have been obtained prior to the date of this
Agreement.
|
| (vii) |
The
Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained
in this
Agreement;
|
| (viii) |
The
Servicer is a member of MERS in good standing, and will comply in
all
material respects with the rules and procedures of MERS in connection
with
the servicing of the MERS Mortgage Loans for as long as such Mortgage
Loans are registered with MERS; and
|
| (ix) |
The
Servicer has established an anti-money laundering compliance program
to
the extent required by applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of
2003, and
the laws and regulations administered by the U.S. Department of Treasury’s
Office of Foreign Assets Control (“OFAC”), which prohibit dealings with
certain countries, territories, entities and individuals named in
OFAC’s
Sanction Programs and on the Specially Designated Nationals and Blocked
Persons List. The Mortgage Loans have been originated, and documentation
related thereto shall be maintained, in material compliance with
such
program.
|
EXHIBIT
FIVE
EXHIBIT
B
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|
||
|
|
General
Servicing Considerations
|
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
||
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
||
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
||
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|||
EXHIBIT
SIX
List
of Mortgage Loans with Prepayment Charges Assigned to the Trust
Fund
[To
be
retained in a separate closing binder entitled “HarborView 2006-11 Mortgage Loan
Schedule”
at the Washington DC offices of XxXxx Xxxxxx LLP]
